USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

_________________________

No. 97-1128

DENISE COUTIN, ET AL.,

Plaintiffs, Appellants,

v.

YOUNG & RUBICAM PUERTO RICO, INC.,

Defendant, Appellee.

_________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Salvador E. Casellas, U.S. District Judge]

___________________

_________________________

Before

Selya, Circuit Judge,

_____________

Gibson,* Senior Circuit Judge,

____________________

and Lynch, Circuit Judge.

_____________

_________________________

Jorge Miguel Suro Ballester for appellants.

___________________________
Etienne Totti Del Valle, with
________________________

whom Totti & Rodriguez Diaz

_______________________

was on brief, for appellee.

_________________________

September 8, 1997

_________________________

_______________
*Hon.

John

R.

Gibson,

of

the

Eighth

Circuit,

sitting

by

designation.

SELYA,
SELYA,

Circuit Judge.
Circuit Judge.
______________

Plaintiff-appellant

Denise

Coutin,1

flush

with

victory

after

winning

an

employment

discrimination suit, encountered disappointment when the district

court awarded her only a fraction of the attorneys' fees to which

she believed

1988

herself entitled

(1994).

employed

Coutin

flawed

under the Fees

appeals.

methodology

Because

and

Act, 42

the

relied

U.S.C.

district

on

court

impermissible

criteria, we vacate its order and remand for further proceedings.

I.
I.

BACKGROUND
BACKGROUND

On December

30, 1993,

the appellant

sued her

former

employer, defendant-appellee Young & Rubicam of Puerto Rico, Inc.

(Y&R), an advertising agency, for over $1,500,000 in compensatory

and punitive

federal

damages.

claim:

Her complaint

that Y&R had

advanced one

violated Title

VII of

substantive

the Civil

Rights

Act of

including

1964,

42

U.S.C.

to 2000e-17

the Pregnancy Discrimination Act, 42 U.S.C.

(1994), by (1) assigning Coutin

that were

2000e

(1994),

2000e(k)

(who was then pregnant) to tasks

detrimental to her physical and

emotional health, (2)

requiring her to work under unsafe conditions, (3) condoning (or,

at least, neglecting to curb) her coworkers' disparaging comments

about her gravidity, and (4) constructively discharging her.

complaint

elements of

also

included

which were

several claims

subsumed, without

under

local

The

law, the

exception, under

the

____________________

1Coutin's
plaintiffs

spouse

and their

and appellants

conjugal partnership

in this

rights derive from Coutin's, we

litigation.

are also

Because

their

opt for simplicity and treat the

appeal as if Coutin were the sole plaintiff and appellant.

broader federal claim.

Y&R denied

Coutin's allegations and defended

with considerable vigor.

reach

an

accord, but

Along the way, the parties attempted to

they

came

no closer

$150,000 as against an offer of $15,000.

(who

had secured

evidence of

and

the suit

retained

lost income, and

other

than

a demand

of

At trial, the appellant

employment)

that aspect of her

offered

no

original claim

was

pretermitted.

The

Y&R had intentionally

case went to the

jury, which found that

discriminated against, and

constructively

discharged, the appellant, thus violating both federal and Puerto

Rico law.

The jury awarded the appellant and her spouse a total

of $44,000 in

severance

(1985).

compensatory damages, plus an additional $1,538 in

pay under

Law

80, P.R.

The jury rejected

Laws Ann.

tit.

29,

the appellant's prayer

185a

for punitive

damages.

Y&R, which had

moved unsuccessfully for judgment

as a

matter of law on several occasions during the trial, renewed that

motion and asked alternatively for a new trial.

P. 50,

59.

appellant

$52,793.75

The district court

petitioned under

in

counsel fees

refused relief.

42 U.S.C.

and

See Fed. R. Civ.

___

related

In

1988 for

expenses.

turn, the

an award

The

of

fee

application contained

two

decades

of

discrimination

billing

records

calendar years.

a sworn statement delineating her lawyer's

experience

cases,

that

as

in

well

detailed

personal

injury,

as

extensive,

the

lawyer's

labor,

and

contemporaneous

work

over

four

At the bottom line, the reckoning reflected out-

of-court time (250.25 hours) billed at $175 per hour and in-court

time (45 hours) billed at $200 per hour.

Despite this meticulous proffer, the judge eschewed any

discussion

of

either

the

hours

spent

or the

billing

rates

assigned and instead awarded the appellant a mere $5,000 in fees.

The

judge

purported

"plaintiffs' limited

willingness

to go

to

base

his

success on

to

trial

decision

their

despite

entirely

claims, the

the

on

the

plaintiffs'

defendant's

earnest

efforts to settle the case for a reasonable sum, and the equities

involved."2

II.
II.

This appeal ensued.

STANDARD OF REVIEW
STANDARD OF REVIEW

We

substantial

See Brewster
___ ________

review

respect to

fee

the

v. Dukakis, 3
_______

awards

deferentially,

trial court's

F.3d 488, 492

according

informed discretion.

(1st Cir. 1993).

We

will disturb such

an award only for

mistake of law or

abuse of

discretion.

See United States v. Metropolitan Dist. Comm'n, 847

___ _____________
_________________________

F.2d

(1st

12, 14

Cir. 1988).

discretion occurs "when

weight is

when all

regard,

an abuse

a material factor deserving

ignored, when

proper and

In this

an improper factor

no improper factors

of

significant

is relied

upon, or

are assessed,

but the

____________________

2While the court did not elaborate upon the phrase "equities

involved," it is apparently a euphemism for the judge's view that

the appellant
large

fee

had been fortunate to secure a verdict, and that a

award

windfall."

therefore

"would

We proceed on the

judge meant.

In all

events,

constitute

an

intolerable

assumption that this is

if the

judge was

what the

referring

to

"equities" in a broader sense, those equities, to the extent that

they

bear on attorney

standard

compensation, are encompassed

fee-adjustment

accompanying text.

factors.

See
___

infra
_____

within the

note

and

court makes a serious mistake in weighing them."

Assocs., Inc.,
_____________

943

F.2d

139,

143 (1st

Cir.

Foster v. Mydas
______
_____

1991)

(internal

quotation marks and citation omitted).

Although

our

analytical

posture

is

respectful,

we

nonetheless must engage the district court's decision critically.

To facilitate this perlustration,

we require the lower

court to

explain its

be

actions.

painstaking,

and,

See id. at 141.

___ ___

sometimes,

The explanation need not

it

may

even

appear

by

implication, but at a bare minimum, the order awarding fees, read

against the

district

backdrop of the record

court's thought process and show

underlying its

U.S. 886,

as a whole, must

decisional calculus.

898 (1984);

See
___

expose the

the method and manner

Blum v. Stenson,
____
_______

Hensley v. Eckerhart,
_______
_________

461 U.S.

465

424, 437

(1983).

This

award

departs

application.

principle is

substantially

from the

contours

when

the fee

shaped

by the

"As a general rule, a fee-awarding court that makes

substantial

authenticated

especially important

reduction

rates should

in

either

documented

offer reasonably

time

or

explicit findings,

for

the court, in such circumstances, `has a burden to spell out

the

whys and

wherefores.'"

Brewster, 3
________

Metropolitan Dist. Comm'n, 847 F.2d

_________________________

deprived

of meaningful insight

frequently

will be

unable to

significantly adjusted fee

remand

for

F.3d at

at 18)).

into the trial

conduct an

An appellate court

court's thinking

adequate review

award, and thus will be

further findings.

See,
___

493 (quoting

e.g.,
____

of a

compelled to

Riley v.
_____

City of
________

Jackson, 99
_______

F.3d 757, 760

(5th Cir. 1996); Freeman

_______

v. Franzen,
_______

695 F.2d 485, 494 (7th Cir. 1982).

III.
III.

METHODOLOGY
METHODOLOGY

The lodestar method

by which

district courts

prevailing

parties

section 1988.

is the strongly preferred

should determine

in actions

that

what

fall within

method

fees to

the

award

ambit of

See Lipsett v. Blanco, 975 F.2d 934, 937 (1st Cir.

___ _______
______

1992).

This approach contemplates judicial ascertainment of "the

number

of hours reasonably expended on the litigation multiplied

by

reasonable

hourly

constructing a fee award.

rate"

Hensley,

as

the

starting

461 U.S. at 433.

point

While

in

the

_______

lodestar method

acknowledged,

method

is

is a

tool,

not a

straitjacket

as

we

have

some deviation from an orthodox application of the

permissible

Metropolitan Dist. Comm'n,

_________________________

in

highly

847 F.2d

unusual

at 15-16

situations,

see
___

fee-awarding

court shuns this tried-and-true approach at its peril.

See Segal
___ _____

v. Gilbert Color Sys., Inc., 746 F.2d 78, 87 (1st Cir. 1984).
________________________

As

we have said, the lodestar method is a tool, but it is not merely

a tool.

The method is also a device which enables courts to pay

homage to

Act:

its

the fundamental reason

resolve

that

certain

that Congress passed

types

of

wrongs,

the Fees

such

as

discrimination on account of sex, should not be countenanced, and

that

private suits

aimed

at redeeming

such

abuses should

be

encouraged.

See City of Riverside

___ _________________

v. Rivera, 477 U.S. 561, 574______

75 (1986) (plurality opinion).

To

say

that

trial court

mulling

fee

request

ordinarily must fashion a lodestar

is

in thrall

to

an attorney's

segregate time spent

is not to say that

time records.

the court

The court

on certain unsuccessful claims,

can

see, e.g.,

___

Hensley, 461
_______

hours,

U.S. at

see, e.g.,
___ ____

realistic rates

492.

435, eliminate

Lipsett, 975
_______

to time

F.2d

excessive or

at 937,

spent, see, e.g.,

___ ____

In these and other ways,

____

unproductive

and assign

Brewster, 3
________

more

F.3d at

the trial court, though adhering

to the time-and-rate-based method of fee calculation, may fashion

a lodestar which differs substantially from the fee requested

the

prevailing party.

authority

but it

Hensley,
_______

Moreover,

the trial

to adjust the lodestar after

must do so in

461 U.S. at

court retains

with the

the

initially computing it

accordance with accepted

429-31 (citing the

principles.

twelve factors set

See
___

legislative history of

the Fees Act and observing that it is appropriate to

in accordance

by

forth in

adjust fees

Johnson v.

_______

Georgia Highway Express, Inc.,

______________________________

488 F.2d 714,

717-19 (5th

Cir.

1974)).3

IV.
IV.

ANALYSIS
ANALYSIS

In

this instance,

Coutin submitted

the documentation

____________________

3This

circuit has embraced

the Johnson factors

_______

sculpting fee

awards. See, e.g., Segal,

___ ____ _____

factors are:

(1) the time and

and difficulty

of

for use in

746 F.2d at 86.

These

labor required; (2) the

the questions;

(3)

the skill

novelty

requisite

perform the legal services properly; (4) the preclusion of

employment by the attorney(s) due
the

customary

fee;

(6)

contingent); (7) the

the

(9) the

attorney(s);
nature

and

nature

of

amount

the

involved

experience, reputation,

(10) the
length

the

"undesirability" of

of the

other

to acceptance of the case; (5)

time limitations imposed

circumstances; (8)

obtained;

the

to

professional

fee

(fixed

or

by the client

or

and

the

results

and

ability of

the

the

case; (11)

the

relationship

client; and (12) the size of awards in similar cases.

with the

needed to

permit the district

approach,

but the court scarcely mentioned

all events,

did not

While

such

necessarily

departure

from

be fatal, spurning

places a substantial

for its

engage in

actions.

court to follow

the conventional

that proffer and, in

any lodestar analysis

preferred

practice

all consideration of

burden upon the

whatever.

will

a lodestar

district court to

See Berg v. Gackenbach,

not

account

966 F.2d 731, 732 (2d

___ ____

__________

Cir. 1992); Metropolitan Dist. Comm'n, 847 F.2d at 12, 15.

_________________________

Here, the district

abjuring

effort

had

the lodestar

case,

method.

decision on

success, the

the court

and

the equities

explained, and its

three factors:

parties' abortive

reliance on the first of

wrong.

Still,

cite any reason

did make

for

an

to explain its decisionmaking process, indicating that it

premised its

limited

court did not

of

the

efforts

situation.

to settle

But

the

of these

court's

factors is plainly

factors justifies

the court's

failure to compute (and then adjust, if necessary) a lodestar.

A.
A.

the

these factors is at best insufficiently

reliance on the other two

Moreover, none

the appellant's

Limited Success.
Limited Success.
_______________

The district

enjoyed

conclusion

only "limited success" (and,

way of counsel

the

court's

out, there

was

the

appellant

thus, deserved less in the

fees) is too much of

court pointed

that

a stretch.

a chasmal

To

be sure, as

gulf between

the

damages requested in the complaint and the damages awarded.4

The

____________________

4In
damnum.

making this
The use of

comparison, the
the ad damnum

court

emphasized the

for this purpose

is suspect

because the ad damnum is an inherently artificial construct.

ad

See
___

court had a right to keep this discrepancy in mind, but it cannot

amount to more

that

the court

results

than one element in the

considers when

obtained.

Because

constellation of factors

determining the

this

quality

phenomenon

is

of the

sometimes

misunderstood, we take some pains to explain it.

As Judge

has

Casellas correctly noted,

Court

identified results obtained as a preeminent consideration in

the fee-adjustment process.

But

the Supreme

See Hensley, 461 U.S.

___ _______

the term "results obtained"

can refer

to a

relief actually

has a variety

plaintiff's success

achieved, or to

right which has been vindicated,

claim by

at 432, 440.

of meanings.

It

claim, or

to the

the societal importance

of the

or to all of these

measures in

combination.

and

that,

We think that the

as

consequence,

potentially bear upon

generally Norman v.
_________ ______

last meaning is the best choice,

all

three

the amount of an

types

of

"results"

ensuing fee award.

Housing Auth. of Montgomery, 836

___________________________

See
___

F.2d 1292,

1302 (11th Cir. 1988).

Although all three measures of success must be factored

into the fee-reduction

identical treatment.

adjustments are

severable

calculus, they do not

On the

intended to

one hand, to

reflect the

lend themselves to

the extent that

fee

success or failure

of

claims, they are relatively easy to calculate because,

although some overlap

may muddy the waters, a

court usually can

____________________

Aggarwal v. Ponce Sch. of Med., 745 F.2d 723, 729 (1st Cir. 1984)

________

__________________

(observing that
are, the

"[m]odern litigation

monetary demand which

practices being what

caps a plaintiff's

they

complaint is

likely to be sanguine at best").

determine the

extent to which

a plaintiff has prevailed

claims merely

by perusing the

docket (e.g., the

verdict

form, etc.),

unsuccessful claims.

and

can

then filter

out

on her

complaint, the

time spent

on

See, e.g., Lipsett, 975 F.2d at 940-41.

___ ____ _______

On

the other hand,

award

or

evaluation

a fee reduction in

shortfall

of damages

and is substantially

light, the

in

response to a scanty

other relief

entails

awarded and nonmonetary

subjective

relief obtained,

more difficult to quantify.5

computational principles

damage

applicable to

Seen in this

claims-based

fee reductions are relatively simple and straightforward, whereas

the

computational

principles

reductions are highly

cross

purposes.

principles may

"reasonable"

applicable

how

affect a district

it

relief-based

fee

ramified and, in some respects, operate at

To visualize

fee,

to

may be

these

sometimes competing

court's effort to

helpful

to

determine a

catalog the

several

possible configurations in which the issue may arise.

1.
1.

If a plaintiff

prevails on only some

of multiple

claims,

then

fee reduction

may

be

in

order.

To

guide

decisionmaking in this situation, the Justices have suggested two

relevant questions:

"First, did the plaintiff fail to prevail on

claims that were

unrelated to the claims on

which he succeeded?

Second, did the

plaintiff achieve a level of

success that makes

the hours reasonably expended

fee award?"

a satisfactory basis for making

Hensley, 461 U.S. at 434.

_______

____________________

5This
to the

is equally true of

extent it

the vindication of rights (which,

may be relevant

reduction in fees).

10

here, plainly cuts

against a

When different claims for relief are not interconnected

that

is, when

theories

they

the claims

are

by

rest on

definition

Attorneys' fees normally should not

litigating

claims.

(or preparing

severable

and

and legal

unrelated.

be awarded for time spent in

litigate) unsuccessful,

severable

See id. at 435; Lipsett, 975 F.2d at 940.

___ ___
_______

2.
2.

If a plaintiff prevails on an insubstantial subset

of her interrelated

trial

to

different facts

court

inferior

has

result.

claims and obtains only

discretion

See
___

to

Hensley,
_______

shrink

461 U.S.

limited relief, the

fees

at

to

reflect that

436; Andrade
_______

v.

Jamestown Hous. Auth.,

______________________

82

F.3d

1179, 1191

(1st

Cir.

1996).

Withal, a plaintiff who has limited success from a claim-by-claim

standpoint, but who nevertheless obtains substantial compensation

or other important

fee

wars, even

Hensley, 461
_______

claims, a

relief, usually will fare much

though some

U.S. at 440

plaintiff who

of her

better in the

claims failed.

("Where a lawsuit consists

has won

substantial relief

See, e.g.,
___ ____

of related

should not

have his attorney's fee reduced simply because the district court

did not adopt each contention raised.").

3.
3.

If

a prevailing

party is

successful on

all (or

substantially all) of her claims, and receives complete (or near-

complete) relief,

it goes

without saying

that reasonable

fees

should be

paid for time productively spent, without any discount

for limited success.

4.
4.

If

substantially all)

prevailing

of her

party

claims, but

succeeds

on

receives no

all

(or

significant

11

relief (e.g.,

judge

the jury awards

sometimes may deny

only nominal damages),

fees altogether because

the trial

this scenario

often

"highlights

the

compensable injury."

plaintiff's

failure

to

Farrar v. Hobby, 506 U.S.

______
_____

prove

actual,

103, 115 (1992)

(denying fees in a case in which the plaintiff sought $17,000,000

in damages and received $1); see also id. at 114 (affirming

___ ____ ___

"the `technical' nature

of a nominal damages award

that

or any other

judgment . . . does bear on the propriety of fees awarded under

1988").

if the

Farrar,
______

plaintiff's apparent victory

minimis."
_______

redress.

not be bestowed

is "purely technical

or de
__

Id. at 117 (O'Connor, J., concurring).6

___

5.
5.

claims,

then, signifies that fees need

but

Sometimes,

will

the plaintiff will

receive

limited

In such circumstances,

(though

prevail on all

her

not insubstantial)

it is appropriate for

a trial

court to consider the skimpiness of the relief when adjusting the

lodestar figure.

meager damage

See
___

Rivera, 477 U.S.

______

award may be

at 574.

But

taken into consideration,

though a

the Court

has squarely disclaimed "the proposition that fee awards under

1988 should necessarily be proportionate to the amount of damages

civil

rights

plaintiff

$245,456.25 in fees

actually

recovers."

in a section 1983 action that

Id. (approving
___

resulted in a

____________________

6Be that as it may,

negate

the possibility

plaintiff
"results

obtaining only nominal damages does not

of a

receives another form

obtained"

plaintiff's

failure

may

be

to

O'Connor v. Huard, 117 F.3d

________
_____
a substantial
which

the

fee award.

of meaningful relief,

substantial,

collect

if the

then the

notwithstanding

compensatory

damages.

the

See
___

12, 17-18 (1st Cir. 1997) (affirming

attorneys' fee award

plaintiff

For example,

received

in a section 1983

nominal

damages and
___

action in

injunctive

relief).

12

judgment

for

$33,350);

concurring) (noting that

nor the

of

see
___

also
____

id.
___

at

585

(Powell,

"[n]either the decisions of

legislative history of

proportionality between

the

1988"

fee

J.,

this Court

lend credence to a "rule

awarded

recovered in a civil rights case"); Foley

_____

and

the

damages

v. City of Lowell, 948

______________

F.2d 10, 19 (1st Cir. 1991) (holding that although a trial

court

is "entitled to take into account the relative size of the damage

award

and the

fee award,"

the

former "does

not constitute

dispositive criterion, or even a ceiling" on the latter).

It is readily apparent that some tension exists between

these principles:

while a judge may not

fee award in proportion to

automatically reduce a

a judgment that is significantly less

than the plaintiff sought, the judge can take that small judgment

into

reasonable

dissonance makes it

provide a

account

in

massaging

the

lodestar.

This

all the more crucial that a nisi prius court

clear explanation

when limited

relief furnishes

the

ostensible justification for a departure from the lodestar.

Conscious of these differing configurations, we turn to

the case

at hand.

The focus of our inquiry is the lower court's

determination

that the

appellant's

success was

limited

(and,

thus, justified a fee reduction).

We

start by

scrutinizing claims-based

success.

Y&R

asserts that Coutin's victory was less than complete both because

the

jury

declined to

grant

punitive damages

and

because the

appellant did not pursue her original prayer for lost income.

believe

that this riposte

blurs the distinction

13

We

between claims

and

damages.

In

the

fee-shifting context,

allegation of

a legal injury

equivalent to

compensation

cause

"claim" is

comprised of various

of action,

awarded to the

wrong and who therefore has

whereas

elements and

"damages"

plaintiff who has

an

are

the

suffered a legal

a valid claim against the defendant.

In this case, punitive damages and loss of income (no matter

how

they are denominated in the complaint) are not failed claims, but

are

categories

of relief

that

the

jury and

the

appellant's

subsequent employment history, respectively, have denied her.

We

the

every

need not linger.

From a claim-by-claim standpoint,

appellant prevailed up and down

substantive claim asserted

the line.

She triumphed on

under both federal

and Puerto

Rico law.

In so doing, she

complete

success is hardly

achieved a 100% success

"limited."

rate

Consequently,

and

a claims-

based, results-obtained fee reduction is wholly inappropriate.

From the

is more

standpoint of relief obtained,

ambiguous.

court's discretion to

relief even

See, e.g.,
___ ____

1993)

in the

After all, it

reduce a fee award in

presence of

(declining to award fees

received

the district

response to limited

complete claims-based

success.

7 F.3d 106, 109-10

(7th Cir.

Cartwright v. Stamper,
__________
_______

claims, but

remains within

the situation

where plaintiff succeeded on all

only nominal

damages

for each).

however, the damage award is substantial in absolute terms

$45,000

salary.

and equals

roughly three times the

over

appellant's annual

On its face, such relief does not seem "limited"

relevant sense.

Here,

in any

14

Moreover, to the extent

the damages requested to the

account in

recovery is

when the

small, fees

that the ratio of

judgment received may be taken into

fixing an appropriate

19-20 ("Often,

if at all

award, see Foley, 948

___ _____

amount sought is

may be

reduced

large but

F.2d at

the actual

somewhat."); see
___

also
____

Loggins
_______

v.

Delo,
____

proportion may be

999

F.2d

used only

364, 369

(8th

as one facet

determination of the quality of

Cir.

of the trial

the results obtained.

may not employ the derived ratio as an independent

for a fee

reduction.

1993),

See Rivera,
___ ______

this

court's

The court

justification

477 U.S. at 574.

Rather, in

the absence of special circumstances, the court must evaluate the

data

submitted by the

fee-seeker, compute a

the totality of the adjustment

the

Court,

see
___

supra
_____

note

lodestar, consider

factors approved by Congress

3,

and

make

specific,

and

reasoned

adjustments if it is to arrive at a reduced fee award.

In

the instant

case, the

appellant's time-and-rate data; it

claims-based success; and

court

did not

analyze the

ignored the appellant's broad

it failed to explain why

the sum upon

which it settled

$5,000

was itself

reasonable in relation to

counsel's efforts, even given a perceived shortfall in the relief

received.

Thus,

the more than 90% fee reduction

that the court

imposed cannot be justified on the basis of limited success.7

____________________

7The district court's

reliance on Andrade (a
_______

the trial judge ordered, and

fees

from

plaintiffs
relief.

$26,487.50
obtained
See Andrade,
___ _______

to

this court approved, a reduction in

$2,500)

limited
82 F.3d

is

misplaced.

claims-based success
at

1191.

There,
and
___

In contrast,

obtained substantial claims-based success and rather

relief.

case in which

limited

Coutin

substantial

Hence, Andrade and this case are not fair congeners.

_______

15

the

B.
B.

In

other

Settlement Prospects.
Settlement Prospects.
____________________

instances,

settlement negotiations may

determining fees.

into

success

validates

of

useful in

68 in a civil rights context).

in any event, the judgment

the highest

course

yield information that is

however, the defendant did not

trebled

the

See Marek v. Chesny, 473 U.S. 1, 11-12 (1985)

___ _____
______

(applying Fed. R. Civ. P.

case at bar,

inquiry

invoke Rule 68 and,

that the plaintiff obtained more than

settlement offer

the

In the

available to

appellant's rejection

of

her.

the

This

tendered

settlement and immunizes her

upon that

from detrimental consequences based

rejection. See Corder

___ ______

v. Gates, 947 F.2d

_____

374, 380-81

(9th Cir. 1991).

Policy

considerations

relaxing this rule.

award for failure

the best

militate

strongly

against

Permitting a district court to reduce

to settle when

settlement offer

the eventual judgment

previously made by

a fee

exceeds

the losing

would put too large a club in the district court's hands.

bargain, endorsing that

praxis would create inordinate

on plaintiffs to accept low settlement offers.

inhibit the

bringing of civil

pressure

Congress's

facilitate

the prosecution of private actions aimed at deterring

rights abuses.

See

Rivera, 477

that

U.S.

the

the end,

frustrate

civil

intention

In the

This result would

rights actions, and, in

manifest

party

Fees

at 574-75.

Act

We

___

______

therefore hold that it is a mistake of law to reduce an award

attorneys'

plaintiff's

fees

in

civil

rights

case

in

response

to

of

rejection of a defendant's settlement offer when the

16

subsequent judgment exceeds that offer.8

C.
C.

Windfall.
Windfall.
________

The

district

court's

opinion

reduction is appropriate because the

and did not deserve to

Wholly apart

fee

case

See supra note 2.

___ _____

vel non of the

___ ___

criterion is not

that

appellant had a shaky

prevail on the merits.

from the accuracy

assessment, this

suggests

district court's

a proper element of

the fee-

award calculus.

Congress

compensation in

rights claims.9

intended

virtually all

See
___

the

Fees Act

to

cases involving

generally
_________

S. Rep.

No.

effect

attorney

successful civil

94-1011

(1976),

reprinted in 1976 U.S.C.C.A.N. 5908; see also Williams v. Hanover

_________ __
___ ____ ________
_______

Hous. Auth., 113 F.3d 1294, 1300 (1st Cir. 1997).

___________

verdict has been rendered

After a jury's

and has withstood whatever barrage

of

post-trial motions may

It is an

vent

ensue, the time

abuse of discretion for

its skepticism

about the

for debate has

expired.

the trial court thereafter

claimant's right

to recover

to

by

reducing the fee award to which the prevailing party is entitled.

See Stefan
___ ______

v. Laurenitis, 889
__________

F.2d 363, 370-71 (1st

Cir. 1989)

____________________

8This

case does not present the somewhat different question

of whether a
to

fee award in a civil rights action might be subject

reduction,

plaintiff

apart

received

from

Rule

damage

68,

award

defendant had offered in settlement.

because
which

the

was

less

prevailing

than the

We leave that question for

another day.

9Despite this

policy

interest,

we

have

determined

that

counsel

fees may be withheld altogether if special circumstances

exist.

See Domegan v. Ponte, 972 F.2d 401, 419 (1st Cir. 1992);
___ _______
_____

Lewis v. Kendrick,
_____
________

944 F.2d 949, 957-58

circumstances are rare.

(1st Cir. 1991).

They are not present here.

Such

17

(refusing to

sort

allow district courts

when considering

section 1988); see

___

235 (1st Cir. 1990).

whether to

to balance equities

award

attorneys' fees

also DeJesus v. Banco Popular,

____ _______
_____________

In other words,

of this

under

918 F.2d 232,

the time for a trial judge

to express his doubts about the viability

of a claim occurs when

the judge rules upon the full panoply of motions for judgment

as

matter of law and/or for a new

those barriers

and

cannot be employed

trial.

this case has

as a palliative

trimming

Indeed, if a

plaintiff has

attorneys' fees

to assuage lingering

about the legal viability of the claim.

235.

Once a case has scaled

doubts

See DeJesus, 918 F.2d at

___ _______

a thin

case but

nonetheless

manages, as here, to secure a verdict for three times the largest

settlement

offer, such

template suggests

skillful advocacy,

perhaps worthy of an award of full fees.

D.
D.

Wholly apart

has

fallback

Local Law.
Local Law.
_________

from the district court's

position.

It

infirmities of the $5,000 fee

comports with

Puerto Rico

posits

that,

rationale, Y&R

whatever

the

award under federal law, the award

law and should

be sustained

on that

basis.

This

thesis, which proposes that Puerto

govern in respect to fees

non-federal claims and

Rico law should

because the appellant prevailed on her

recovered double damages by

operation of

Puerto Rico law, fails for two reasons.

First, under section 1988 "the plaintiff is entitled to

fees for

claims,

hours worked

but also

not only on

on other

the successful

claims involving

18

civil rights

a `common

core of

facts' or `related legal theories,'" and, therefore, a "plaintiff

should receive significant fees when he has won a partial victory

_______

on a civil

he

rights claim while receiving substantially the relief

there sought,

though the

jury awards

legally related pendent state claim."

287, 291

(1st Cir. 1986)

it on a

factually or

Aubin v. Fudala, 782 F.2d

_____
______

(quoting Hensley, 461 U.S.

_______

at 435).10

Here, where the elements of

the various claims under Puerto Rico

law

Title

are

subsumed

unquestionably

by

the

interrelated.

VII

claim,

the

claims

are

Hence, the fact that the appellant

also recovered under Puerto Rico

law is irrelevant vis- -vis her

section 1988 recovery.

Second, as a

general matter, a plaintiff

who prevails

on congruent

shifting

whichever

federal

under

two

and state

or more

fee-shifting regime

Package Mach. Co., 865

___________________

constrain

of her

statutes

she

F.2d 1331,

the plaintiff's

deserved fruits

claims and

recover

chooses.

1347 (1st

choice would

victory and

may

qualifies for

See
___

fees under

Freeman
_______

Cir. 1988).

withhold

from her

would discourage

fee-

v.

To

the

potential

claimants from redeeming their civil rights.

V.
V.

CONCLUSION
CONCLUSION

We

need go

no further.

plausible reason for eschewing the

The

court below

offered no

lodestar method, and no

such

____________________

10In Aubin, the plaintiff

_____
and state claims,

prevailed on interrelated federal

recovering $501 on the former

and $300,000 on

the

latter.

782

F.2d at 288.

requested attorneys' fees on a

Y&R.

See id.
___ ___

at 290.

We

The district

court reduced the

theory much like that advanced by

overturned that ruling.

See id. at
___ ___

292.

19

reason springs spontaneously from the record.

error to

forgo the lodestar.

impermissible

criteria in

Consequently,

we vacate the

It was, therefore,

In addition, the court

making

its

relied on

non-lodestar fee

order appealed from

award.

and remand for

further

proceedings

consistent

with this

opinion.

appeal shall be taxed in favor of the appellant.

filing

of a

district

sufficient

rendered

supplemental

court

shall

application

include

to compensate

It is so ordered.
It is so ordered.
________________

its

the appellant's

in connection with

appeal.

in

in

Upon the timely

suitable

new

fee

Costs on

form,

award

counsel for

the successful prosecution

the

sum

services

of this

20