Diffenderfer v. Gomez-Colon

• Citation: 587 F.3d 445
• Decision Date: 19 November 2009
• Docket Number: No. 08-2139.,No. 09-1743.,No. 09-1742.,08-2139.,09-1742.,09-1743.
• Parties: Sylvia DIFFENDERFER, on behalf of herself and as a representative of the class herein defined; Robert McCarroll, on behalf of himself and as a representative of the class herein defined, Plaintiffs, Appellees/Cross-Appellants, v. Ramon E. GOMEZ-COLON, President of the State Electoral Commission of Puerto Rico; Walter Velez-Rodriguez, Secretary of the State Electoral Commission of the Commonwealth of Puerto Rico, Defendants, Appellants, Gerardo Cruz-Maldonado, Electoral Commissioner of Popular Democratic Party; Juan Dalmau-Rodriguez, Electoral Commissioner of the Puerto Rican Independence Party; Nelson Rosario-Rodriguez, Electoral Commissioner of the Puerto Ricans for Puerto Rico Party; Edwin Mundo-Rios, Electoral Commissioner of the New Progressive Party; John Doe, Defendants.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

587 F.3d 445

Sylvia DIFFENDERFER, on behalf of herself and as a representative of the class herein defined; Robert McCarroll, on behalf of himself and as a representative of the class herein defined, Plaintiffs, Appellees/Cross-Appellants, v. Ramon E. GOMEZ-COLON, President of the State Electoral Commission of Puerto Rico; Walter Velez-Rodriguez, Secretary of the State Electoral Commission of the Commonwealth of Puerto Rico, Defendants, Appellants Gerardo Cruz-Maldonado, Electoral Commissioner of Popular Democratic Party; Juan Dalmau-Rodriguez, Electoral Commissioner of the Puerto Rican Independence Party; Nelson Rosario-Rodriguez, Electoral Commissioner of the Puerto Ricans for Puerto Rico Party; Edwin Mundo-Rios, Electoral Commissioner of the New Progressive Party; John Doe, Defendants.

No. 08-2139.

No. 09-1742.

No. 09-1743.

United States Court of Appeals, First Circuit.

Submitted September 8, 2009.

Decided November 19, 2009.

Noel S. González-Miranda with whom González Miranda & González Abella PSC was on brief for appellants.

Eliezer Aldarondo Ortiz with whom Eliezer A. Aldarondo and Aldarondo & López

Bras were on brief for appellees-cross-appellants.

Before LYNCH, Chief Judge, TORRUELLA and RIPPLE^*, Circuit Judges.

LYNCH, Chief Judge.

Two issues are presented in the aftermath of a prior appeal in a civil rights case that has become moot due to legislative action. The first is whether the underlying injunctive order the plaintiffs obtained in the district court should be vacated on remand, given the reason for mootness of the appeal. The second is whether plaintiffs would, under these circumstances, remain entitled to the award of attorney's fees in the now moot case and, if so, whether the fees the district court awarded were reasonable. We vacate the judgment and remand to the district court with instructions to dismiss the action, and we affirm the district court's award of attorney's fees.

Plaintiffs, a class of Puerto Rican residents who only speak English, sued members of the State Electoral Commission of Puerto Rico (Commission) under 42 U.S.C. § 1983, challenging the Commission's decision to print ballots in the November 2008 elections solely in Spanish. The federal district court of Puerto Rico found for the plaintiffs on the merits and granted them a permanent injunction in August 2008, which compelled the Commission to print bilingual ballots in the November 2008 election. The district court later awarded plaintiffs attorney's fees under 42 U.S.C § 1988 in the sum of $67,550.34, less than the amount requested of $122,988.75. Defendant Ramon Gomez-Colon, who was President of the Commission at the time, appealed from both the underlying judgment and the award of attorney's fees. Plaintiffs have cross-appealed from the diminution of their requested award, and the appeals were consolidated.

While these cases were pending on appeal, Puerto Rico passed legislation requiring the use of bilingual ballots in all future elections, and the governor signed the legislation, which is in effect. Both parties agree this has mooted the underlying judgment.

I.

Plaintiffs and appellees, Sylvia Diffenderfer and Robert McCarroll, are longtime Puerto Rico residents and registered voters who speak and read only English. On August 19, 2008, plaintiffs filed a putative class action suit under 42 U.S.C. § 1983 in the federal district court of Puerto Rico. They sued the President of the Commission and the four Commissioners in their individual and official capacities, arguing that the Commission's administrative decision to issue ballots for the November 2008 Puerto Rican elections only in Spanish discriminated against and effectively disenfranchised voters who only speak English.

On August 27, 2008, the district court granted plaintiffs a permanent injunction directing the Commission to immediately begin printing bilingual ballots for use in the November 2008 elections. In a written opinion issued September 2, 2008, the district court held that this relief was warranted on the grounds that the Commission's balloting policy violated the Voting Rights Act, the First Amendment, and the Equal Protection Clause of the Fourteenth Amendment. See Diffenderfer v. Gomez-Colon, 587 F.Supp.2d 338 (D.P.R.2008). On September 5, 2008, Ramon Gomez-Colon, the President of the Commission filed a notice of appeal.¹ In the meantime, the Commission complied with the injunction and used bilingual ballots in the November 2008 elections.

In April 2009, the district court awarded Diffenderfer and McCarroll attorney's fees under 42 U.S.C. § 1988 because they had prevailed before the district court on the merits of the § 1983 action. Based on the "lodestar" method, the district court awarded a total of $67,550.34 in attorney's fees and litigation costs. The plaintiffs had requested $122,988.75. This amount was reduced by the court to account for duplicative and excessive hours and to adjust for plaintiffs' practice of billing by the quarter-hour, which the district court found had produced an inflated number of billable hours. This fee was awarded only against Gomez-Colon in his official capacity as the President of the Commission. See Diffenderfer v. Gomez-Colon, 606 F.Supp.2d 222, 225-30 (D.P.R.2009) (initial order and judgment); ___ F.Supp.2d ___, ___, 2009 WL 1140219 at *2 (D.P.R. Apr. 24, 2009) (revised order and judgment).² Gomez-Colon appealed this award on April 30, 2009, and Diffenderfer and McCarroll cross-appealed on May 7, 2009.

While these appeals were pending before this court, Puerto Rico enacted Law No. 90, which mandates that bilingual ballots will be used in all future Puerto Rican elections. Both parties agree that Law No. 90 mooted the appeal of the district court's judgment on the merits.

The parties disagree, however, as to the proper disposition of that appeal and the effect this would have upon the appeal of the attorney's fees award. Diffenderfer and McCarroll argue that we should leave the district court's judgment on the merits intact because Gomez-Colon's voluntary actions in not seeking a stay pending appeal had rendered the case moot even before Puerto Rico passed Law No. 90. They further argue that they are still entitled to attorney's fees for costs incurred in the district court litigation, even if we were to vacate the district court's judgment, because, inter alia, they obtained a favorable, material alteration in the legal relationship between the parties before the case became moot. Finally, they argue that the district court abused its discretion in reducing plaintiffs' award of attorney's fees because of plaintiffs' practice of billing in quarter-hour increments and request that the award of attorney's fees be adjusted upwards to $82,490. Their claim for attorney's fees is limited to their work before the district court.

Gomez-Colon instead urges us to vacate the district court's judgment on the grounds that vacatur is the general rule when a case becomes moot on appeal through happenstance, for instance due to intervening legislation like Law No. 90. Gomez-Colon further argues that vacation of the underlying judgment would necessarily require reversal of the district court's disposition of attorney's fees. Plaintiffs, he asserts, cannot be considered "prevailing parties" in the district court if the district court's judgment is vacated, and the district court's award of attorney's fees should therefore be reversed. He does not argue that plaintiffs were not otherwise prevailing parties before the district court or that the fees awarded were not reasonable.

Gomez-Colon also filed motions to substitute his successor as the President of the Commission as the appellant and to consolidate the appeals of the district court's judgment on the merits and its award of attorney's fees. We granted the motion to consolidate but reserved judgment on the question of substitution of parties.

II.

The first issue is the appropriate disposition of the appeal of the district court's judgment on the merits of plaintiffs' § 1983 action. Both parties contend, and we agree, that Law No. 90 mooted that appeal. Under that statute, the Commission must use bilingual ballots now that Puerto Rico has made bilingual ballots mandatory. Because we can no longer issue any judicial remedy capable of affecting the parties' rights, the case no longer presents a live "case or controversy" under Article III, and we lack jurisdiction to decide its merits. See City of Erie v. Pap's A.M., 529 U.S. 277, 287, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000); Horizon Bank & Trust Co. v. Massachusetts, 391 F.3d 48, 53 (1st Cir.2004). We hold that the district court's judgment should be vacated because it was rendered moot by an independent, intervening act of legislation.

As a general rule, federal courts of appeals vacate the judgment below when a civil case becomes moot during the pendency of an appeal. Arizonans for Official English v. Arizona, 520 U.S. 43, 71, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997); see also Rusco Steel Co. v. Atkinson-Kiewit, J/V, 98 F.3d 1333 (1st Cir.1996) (per curiam). Vacatur, an equitable remedy, is ordinarily granted unless the losing party appealing the judgment was responsible for making the case unreviewable, for instance by failing to appeal or by entering into a settlement. See U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship, 513 U.S. 18, 24-25, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994); Shelby v. Superformance Int'l, Inc., 435 F.3d 42, 46 (1st Cir.2008). In such cases, vacatur is inappropriate because it was within that party's power to keep the controversy live and the judgment is therefore unreviewable only by choice. Bancorp, 513 U.S. at 25, 115 S.Ct. 386. When the losing party's voluntary action causes the case to become moot, a presumption against vacatur applies, and vacatur is appropriate only when it would serve the public interest. Id. at 25-28, 115 S.Ct. 386.

In contrast, "[v]acatur is in order when...