Schneider, et al. v. Colegio De Abogados De Puerto Rico
| Decision Date | 29 July 1999 |
| Docket Number | 98-1071,1 |
| Parties | ROBERT E. SCHNEIDER, JR., ET AL., Plaintiffs, Appellees, v. COLEGIO DE ABOGADOS DE PUERTO RICO Defendant, Appellant.ROBERT E. SCHNEIDER, JR., ET AL., Plaintiffs, Appellees, v. SECRETARIES OF JUSTICE AND TREASURY OF PUERTO RICO, Defendants, Appellants.ROBERT E. SCHNEIDER, JR., ET AL., Plaintiffs, Appellants, v. COLEGIO DE ABOGADOS DE PUERTO RICO, ET AL., Defendants, Appellees.United States Court of Appeals for the First Circuit |
| Court | U.S. Court of Appeals — First Circuit |
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. James L. Watson, Senior U.S. District Judge*]
After two decades of litigation in the Puerto Rico and federal courts, plaintiffs Robert E. Schneider, Jr., and Hector Ramos-Daz succeeded in invalidating the use of bar dues for ideological purposes by the mandatory bar of Puerto Rico, the Colegio de Abogados. The action in the case at hand was a civil rights action; the successful claims were of constitutional dimension. Other claims were less successful. The district court, acting pursuant to 42 U.S.C. § 1988, awarded plaintiffs $244,848.12 in attorney's fees plus costs and a refund in unrefunded compulsory dues. The Colegio and other defendants (collectively, "the Colegio") appeal. Schneider and Ramos cross appeal, saying, inter alia, that they were entitled to even more. We affirm in part and reverse in part.
Robert E. Schneider, Jr., pro se and for Hector Ramos-Daz.
Carlos A. Rodrguez-Vidal, with whom Carlos Lugo-Fiol, Solicitor General, Edda Serrano Blasini, Deputy Solicitor General, Vanessa Ramirez, Assistant Solicitor General, and the Department of Justice, Puerto Rico, were on brief, for the Colegio de Abogados de Puerto Rico and the Secretaries of Justice and Treasury of the Commonwealth of Puerto Rico.
Salvador Antonetti-Zequeira for the Justices of the Supreme Court of Puerto Rico.
Before Lynch, Circuit Judge, Hall, Senior Circuit Judge,** and Lipez, Circuit Judge.
The long history of this hard-fought litigation will not be repeated here. It is adequately told in the following opinions: Schneider v. Colegio de Abogados de Puerto Rico, 546 F. Supp. 1251 (D.P.R. 1982); In re The Justices of Supreme Court of Puerto Rico, 695 F.2d 17 (1st Cir. 1982); Schneider v. Colegio de Abogados de Puerto Rico, 565 F. Supp. 963 (D.P.R. 1983), vacated by Romany v. Colegio de Abogados de Puerto Rico, 742 F.2d 32 (1st Cir. 1984); Schneider v. Colegio de Abogados de Puerto Rico, 572 F. Supp. 957, 957-58 (D.P.R. 1983); Schneider v. Colegio de Abogados de Puerto Rico, 670 F. Supp. 1098 (D.P.R. 1987); Schneider v. Colegio de Abogados de Puerto Rico, 682 F. Supp. 674 (D.P.R. 1988), rev'd in part by Schneider v. Colegio de Abogados de Puerto Rico, 917 F.2d 620 (1st Cir. 1990); Schneider v. Colegio de Abogados de Puerto Rico, 947 F. Supp. 34 (D.P.R. 1996); and Schneider v. Colegio de Abogados de Puerto Rico, No. 82-1459 (D.P.R. Aug. 7, 1997).
The Colegio protests that there should have been no award at all for two reasons. First, Schneider was representing himself as well as Ramos and this, the Colegio says, makes Schneider a pro se attorney-plaintiff who may not receive fees under the rule of Kay v. Ehrler, 499 U.S. 432, 437-38 (1991). In addition, the Colegio argues, plaintiffs are not prevailing parties. In any event, the Colegio says, the fee award is simply too high for a number of reasons.
Questions of law regarding the award of attorney's fees are reviewed de novo. See Williams v. Hanover Housing Auth., 113 F.3d 1294, 1297 (1st Cir. 1997). Otherwise, the award is reviewed with deference and "will be disturbed only for mistake of law or abuse of discretion." Rodriguez-Hernandez v. Miranda-Velez, 132 F.3d 848, 858 (1st Cir. 1998).
We affirm the award of attorney's fees plus costs and the refund of unrefunded dues, except for those fees and costs associated with the proceedings in the courts of the Commonwealth of Puerto Rico that took place before the filing of this federal lawsuit. As to that limited amount of fees and costs, totaling $13,872.20, the court reverses and vacates.
The first question is whether any fees should be awarded in light of the fact that attorney Schneider was a plaintiff as well as counsel. Here, Ramos is a plaintiff and Schneider also represented Ramos; the fees incurred by plaintiffs are essentially the same whether or not Schneider was also a plaintiff. The Colegio does not argue otherwise. Thus, in our view, the prohibition in Kay against awarding attorney's fees to an attorney pro se litigant does not apply. See Kay, 499 U.S. at 437-38. We do not reach the issue of whether plaintiffs would have had difficulty in obtaining other counsel, a matter on which the record is barren of evidence.
The second question is whether plaintiffs are prevailing parties given the partial success of their claims. On balance, we conclude that they are prevailing parties given their success in invalidating the payment of mandatory bar dues for ideological activities of the bar. See Farrar v. Hobby, 506 U.S. 103, 109 (1992) () (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (internal quotation marks omitted)).
The third question is whether attorney's fees may be awarded to plaintiffs for work done in the Commonwealth courts before the filing of the federal lawsuit. The district court's attempts to find this situation identical to abstention by a federal court after a federal claim has been filed and to further characterize the Puerto Rico proceedings "as a necessary prelude to the federal action" are in error, both as a matter of law and of fact. Schneider v. Colegio de Abogados de Puerto Rico, No. 82-1459, slip op. at 4-5, (D.P.R. Aug. 7, 1997) (emphasis added). The correct test is articulated in Webb v. Board of Education, 471 U.S. 234 (1985): pre-suit fees may be awarded under 42 U.S.C. § 1988 only for "discrete" work "that was both useful and of a type ordinarily necessary to advance the civil rights litigation to the stage it reached." Id. at 243. After all, the statutory language in § 1988 permits an award of attorney's fees only "[i]n any action or proceeding to enforce a provision of section[] . . . 1983." 42 U.S.C. § 1988(b) (emphasis added). No federal claims were raised in the Puerto Rico proceeding and plaintiffs do not meet the Webb test.
The next question is whether the overall fee award is excessive. The district court found that the claims on which the plaintiffs prevailed were "reasonably related" to those on which the plaintiffs lost, and the court therefore declined to reduce the overall award on the basis of plaintiffs' limited success. Although the question is close, we think that the district court properly found an adequate relationship between the successful and unsuccessful claims. See Hensley, 461 U.S. at 440 (). As to the remainder of the defendants' objections and as to plaintiffs' cross appeal, there is no showing of mistake of law, clear error of fact, or abuse of discretion by the district court.
For these reasons, the judgment is affirmed in part, reversed in part, and the judgment is modified to reduce the attorney's fees awarded from $244,848.12 to $230,975.92 (with interest from September 22, 1988, as per the district court's final judgment).
Costs to plaintiffs.
LIPEZ, Circuit Judge, concurring. Although I agree with the results arrived at by my colleagues in their per curiam opinion, I wish to explain more fully the history of this case and my rationale for the conclusions we reach. This case is the culmination of a two decade long odyssey of litigation that has engaged thousands of hours of attorney and court time, raised important constitutional issues, and engendered strong feelings among the parties. Under these circumstances, I think it is appropriate to offer an explanation that hopefully will enhance an understanding of the issues we have addressed and avoid further litigation.
The Colegio de Abogados de Puerto Rico ("Colegio"), Puerto Rico's unitary bar association, instituted disciplinary proceedings in the Supreme Court of Puerto Rico in 1977 against ninety-nine attorneys for failure to pay their annual dues. All but two, Robert E. Schneider, Jr. and Hector R. Ramos-Daz, paid the dues. As a defense to the disciplinary proceedings, Schneider and Ramos argued1 that the statute establishing the Colegio in its modern form, Law Number 43, 4 L.P.R.A. § 771, as amended, exceeded the authority of the Puerto Rico legislature, and that compelled membership in the Colegio violated their rights of free speech and association under the Constitution of the Commonwealth of Puerto Rico.2 Schneider and Ramos alleged that bar dues3 were being used to fund ideological activities outside the legitimate scope of a bar association. A special master was appointed by the Court to receive evidence, and after several years of proceedings (during which Schneider served as counsel for himself and Ramos), the Supreme Court of Puerto Rico issued an opinion on April 5, 1982. Colegio de Abogados de Puerto Rico v. Schneider, 112 D.P.R. 540, 12 T.P.R. 676 (P.R. 1982) (Colegio I).
The Court ruled that Law 43 was a valid exercise of legislative power and that compulsory membership in the Colegio was constitutional under the Puerto Rico Constitution. Holding that it had plenary power to shape rules governing Colegio membership, the Court ordered the Colegio to institute a new process permitting attorneys to dissent from the use of their dues for ideological activities, including the establishment by the next dues...
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