Pérez-Sosa v. Garland

• Decision Date: 07 January 2022
• Docket Number: No. 20-2083,20-2083
• Citation: 22 F.4th 312
• Parties: Nelson José PÉREZ-SOSA, Plaintiff, Appellant, v. Merrick B. GARLAND, United States Attorney General, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

22 F.4th 312

Nelson José PÉREZ-SOSA, Plaintiff, Appellant,

v.Merrick B. GARLAND,^* United States Attorney General, Defendant, Appellee.

No. 20-2083

United States Court of Appeals, First Circuit.

January 7, 2022

Judith Berkan, with whom Mary Jo Méndez and Berkan/Méndez were on brief, for appellant.

Mónica P. Folch, Assistant United States Attorney, Southern District of New York, with whom Audrey Strauss, United States Attorney, Southern District of New York, and Benjamin H. Torrance, Assistant United States Attorney, Southern District of New York, were on brief, for appellee.

Before Barron, Selya, and Lipez, Circuit Judges.

SELYA, Circuit Judge.

Once the parties had resolved this bitter employment discrimination dispute, a secondary squabble erupted over the amount of attorneys' fees due to the prevailing party (plaintiff-appellant Nelson Pérez-Sosa). The district court reviewed detailed submissions from the parties and awarded the plaintiff $170,331.56 in attorneys' fees. The plaintiff challenges the architecture of the fee award and argues that it does not reasonably compensate the attorney for her time.

Stripped to its essentials, the plaintiff's appeal challenges the structural integrity of the fee award on the basis of seven distinct rulings. After careful consideration, we affirm all but two of those rulings, reverse those two rulings, vacate the fee award, and remand for further proceedings consistent with this opinion.

I. BACKGROUND

For several years, the plaintiff headed the appellate practice of the United States Attorney's Office for the District of Puerto Rico (the Office). During that time frame, the plaintiff appeared as a witness in support of two colleagues, Carmen Márquez-Marín (Márquez) and Francisco Reyes Caparrós (Reyes), each of whom had complained of discriminatory or otherwise improper conduct by the Office, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e - 2000e-17. In separate proceedings, Márquez and Reyes both won jury verdicts against the Office. See Márquez-Marín v. Barr, 463 F. Supp. 3d 165, 172 (D.P.R. 2020) ; Reyes Caparrós v. Barr, No. 15-2229, 2020 WL 1487267, at *1 (D.P.R. Feb. 28, 2020), appeal docketed, No. 20-1792 (1st Cir. Aug. 19, 2020). In addition, Márquez brought a further suit, which is still pending. See Márquez-Marín, 463 F. Supp. 3d at 288 (denying summary judgment).

Some details are helpful. In 2006, the plaintiff testified against the Office at trial in Márquez's original action, which arose from the termination of her employment at the Office. As a result of that action, Márquez was reinstated by court order. Márquez's return to her duties was stormy, and the plaintiff provided testimony favorable to her in further proceedings before the Department of Justice's Equal Employment Opportunity (EEO) officers. The plaintiff also provided testimony favorable to Reyes with respect to his EEO complaint against the Office.

In April of 2016, the plaintiff was passed over for reappointment as Chief of the Appellate Division of the Office (a position he had held, under one title or another, for over twenty years). Having not been reappointed to his leadership role — a demotion that he believed was linked to his earlier testimony — the plaintiff reverted to the position of line attorney. He proceeded to file his own EEO complaint against the Office, alleging constructive discharge in retaliation for his support of his complaining colleagues, and then resigned that December. After that proceeding ran its course, the plaintiff filed suit in the district court, alleging discrimination and retaliation under Title VII.¹ See 42 U.S.C. § 2000e-16(a) ; see also Green v. Brennan, 578 U.S. 547, 551 n.1, 136 S.Ct. 1769, 195 L.Ed.2d 44 (2016) ("assum[ing] without deciding that it is unlawful for a federal agency to retaliate against a civil servant for complaining of discrimination"). For this purpose, the plaintiff retained Maricarmen Almodóvar-Díaz (Attorney Almodóvar), a sole practitioner in Puerto Rico who has handled civil rights and employment discrimination matters since 1992.

From the outset, a visiting judge was assigned to preside over the plaintiff's case — and that same judge continued to preside over the ancillary fee-award proceedings. For nearly three years, the parties sparred over discovery and other issues. Progress was slow: no significant depositions were taken and no dispositive motions were filed.

In February of 2020, the parties negotiated a settlement. Under the terms of the settlement, the plaintiff received a lump-sum payment of $450,000 plus reasonable attorneys' fees. The amount of the fee award was left open, to be resolved by further negotiation or — in default of an agreement — by the district court.

With the fee amount still up in the air, the plaintiff moved for an award of $385,043.75. In support, he urged the district court to endorse a rate of $325 per hour for Attorney Almodóvar's time and to apply that rate to almost 1,200 hours of claimed work. The Office filed an opposition, and the plaintiff made a further filing in response.

The district court, in an unpublished rescript, set out its findings and awarded the plaintiff a total of $170,331.56 in attorneys' fees. We sketch the parameters of that award.

Employing the lodestar method, the court fixed Attorney Almodóvar's hourly rate at $275 for time expended on core legal work and $165 for time expended on non-core work (including travel). In the process, it eliminated all time spent on settlement negotiations and in connection with the Márquez and Reyes matters. It proceeded to subtract hours that it deemed excessive or unproductive and discounted hours too vaguely recorded. Then, the court applied "an across-the-board 25% cut" for what it perceived as "inflated" billing. Finally, the court rejected the Office's suggestion that the fee award be slashed due to the munificence of the settlement. The court explained that "[t]he settlement award was reasonable for this case" and, thus, reducing the fee because of the size of the award "would ... disincentivize an efficient settlement process in future Title VII cases."

Viewing the award as unreasonably low, the plaintiff appealed.

II. ANALYSIS

We review a challenge to an award of attorneys' fees for abuse of discretion. See Gay Officers Action League v. Puerto Rico (GOAL ), 247 F.3d 288, 292 (1st Cir. 2001). Of course, a material error of law is perforce an abuse of discretion. See id. Absent a material error of law, "we will set aside a fee award only if it clearly appears that the trial court ignored a factor deserving significant weight, relied upon an improper factor, or evaluated all the proper factors (and no improper ones), but made a serious mistake in weighing them." Id. at 292-93.

The Supreme Court has cautioned against "appellate micromanagement" of fee awards. Fox v. Vice, 563 U.S. 826, 838, 131 S.Ct. 2205, 180 L.Ed.2d 45 (2011). In the same spirit, we have noted that the "trial court's discretion in respect to fee awards is extremely broad." Lipsett v. Blanco, 975 F.2d 934, 937 (1st Cir. 1992). There is good reason for this respectful attitude. The record that reaches an appellate court is more or less antiseptic and sometimes fails to capture the nuances of the litigation. We appear in the ring after the prize fight has ended. In contrast, the court below, having refereed the bout round by round, has had an opportunity to watch the bobbing and weaving, take the measure of all the punches thrown and deflected, and assess which blows landed and which were nothing more than wild swings. That vantage point affords the court special insight into each side's training, instincts, skill set, and tactics. It follows that the district court's perspective on the efficiency and quality of the lawyers' work is unmatched, see United States v. Metro. Dist. Comm'n, 847 F.2d 12, 14-15 (1st Cir. 1988), and its determinations deserve "substantial deference," Fox, 563 U.S. at 838, 131 S.Ct. 2205.

Where, as here, a federal statute paves the way for fee-shifting, a prevailing plaintiff cannot simply name his prize and expect the opposing party to foot the bill. The statute underpinning the fee award in this case — section 706(k) of Title VII of the Civil Rights Act of 1964 — is typical of the genre. It authorizes the court to award "the prevailing party ... a reasonable attorney's fee." 42 U.S.C. § 2000e-5(k). This provision was designed "to ‘make it easier for a plaintiff of limited means to bring a meritorious suit.’ " N.Y. Gaslight Club, Inc. v. Carey, 447 U.S. 54, 63, 100 S.Ct. 2024, 64 L.Ed.2d 723 (1980) (quoting Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 420, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978) ).

The Supreme Court has explained that "a ‘reasonable’ fee is a fee that is sufficient to induce a capable attorney to undertake the representation of a meritorious civil rights case." Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 552, 130 S.Ct. 1662, 176 L.Ed.2d 494 (2010). Although Perdue involved a different fee-shifting statute, 42 U.S.C. § 1988, the Court has made pellucid that its "case law construing what is a ‘reasonable’ fee applies uniformly to all" federal fee-shifting statutes couched in similar language. City of Burlington v. Dague, 505 U.S. 557, 562, 112 S.Ct. 2638, 120 L.Ed.2d 449 (1992).

A common way of determining a reasonable fee is through the lodestar method. See Perdue, 559 U.S. at 552, 130 S.Ct. 1662. We have described this approach as "the method of choice for calculating fee awards." Matalon v. Hynnes, 806 F.3d 627, 638 (1st Cir. 2015). The lodestar amount equals "the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). Calculating this amount requires two steps (which may be followed by a final corrective gesture).

First, the court must "calculate the number of hours reasonably...