
USCA1 Opinion

	




          October 6, 1992                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 91-1625                                  DENNIS J. DOMEGAN,                                 Plaintiff, Appellee,                                          v.                                JOSEPH PONTE, ET AL.,                               Defendants, Appellants.                                _____________________        No. 91-1753                                  DENNIS J. DOMEGAN,                                 Plaintiff, Appellee,                                          v.                                JOSEPH PONTE, ET AL.,                               Defendants, Appellants.                                 ____________________                                     ERRATA SHEET                                     ERRATA SHEET            The opinion  of this Court issued  on August 10,  1992, is amended        as follows:            Page  50, footnote 38,  line 1,  should read:   "Eighth Amendment"            instead of "Fifth Amendment"        August 10, 1992          ____________________        August 10, 1992          ____________________        No. 91-1625        No. 91-1625                                  DENNIS J. DOMEGAN,                                  DENNIS J. DOMEGAN,                                 Plaintiff, Appellee,                                 Plaintiff, Appellee,                                          v.                                          v.                                JOSEPH PONTE, ET AL.,                                JOSEPH PONTE, ET AL.,                               Defendants, Appellants.                               Defendants, Appellants.                                _____________________                                _____________________        No. 91-1753        No. 91-1753                                  DENNIS J. DOMEGAN,                                  DENNIS J. DOMEGAN,                                 Plaintiff, Appellee,                                 Plaintiff, Appellee,                                          v.                                          v.                                JOSEPH PONTE, ET AL.,                                JOSEPH PONTE, ET AL.,                               Defendants, Appellants.                               Defendants, Appellants.                                 ____________________                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Rya W. Zobel, U.S. District Judge]                       [Hon. Rya W. Zobel, U.S. District Judge]                                           ___________________                                 ____________________                                 ____________________                                        Before                                        Before                               Campbell, Circuit Judge,                               Campbell, Circuit Judge,                                         _____________                            Bownes, Senior Circuit Judge,                            Bownes, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                               and Cyr, Circuit Judge.                                        _____________                                 ____________________                                 ____________________            Stephen  G. Dietrick,  Deputy  General Counsel,  with  whom  Nancy            Stephen  G. Dietrick,  Deputy  General Counsel,  with  whom  Nancy            ____________________                                         _____        Ankers White,  Special Assistant  Attorney General, was  on brief  for        Ankers White,  Special Assistant  Attorney General, was  on brief  for        ____________        appellants defendants.        appellants defendants.            Paul E. Nemser with  whom Paula M. Bagger  and Goodwin, Procter  &            Paul E. Nemser with  whom Paula M. Bagger  and Goodwin, Procter  &            ______________            _______________      ___________________        Hoar were on brief for plaintiff appellee.        Hoar were on brief for plaintiff appellee.        ____                                 ____________________                                 ____________________                                 ____________________                                 ____________________                                          3                                          3                      CYR,  Circuit Judge.  After former inmate Dennis J. Domegan won            CYR,  Circuit Judge.                  _____________          a  one dollar  damage  award in  a  civil rights  action  against          certain Massachusetts corrections  officials, the district  court          approved  an attorney  fee award  against the  defendants in  the          amount  of  $41,441.55 under  42 U.S.C.     1988.   The defendant          officials challenge the  fee award primarily  on the ground  that          Domegan cannot be considered a "prevailing party" in light of the          results achieved in litigation.  With modifications to the amount          of the award, we affirm the district court judgment.                                          I                                          I                                      BACKGROUND                                      BACKGROUND                                      __________            On  August  15, 1983,  while  imprisoned  at the  Massachusetts          Correctional  Institution  at  Walpole  ("MCI-Walpole"),  Domegan          lodged a pro se complaint in the United States District Court for                   ___ __          the District  of Massachusetts, alleging civil  rights violations          under the Eighth and  Fourteenth Amendments to the United  States          Constitution.  The complaint stemmed  from Domegan's disciplinary          placement  on the  "Alternate  Feeding Program"  ("AFP") at  MCI-          Walpole in  May and again in July  of 1983.1  At  that time, each          meal served to AFP inmates, including Domegan, consisted entirely                                        ____________________          1The May placement occurred after Domegan threw his food tray and          human  waste against the wall outside his cell; in July, he threw          his food and tray outside his cell.                                          4                                          4          of two  cheese sandwiches.  The  solid steel doors of  AFP inmate          cells remained closed.  The inmate was given no hearing  prior to          the AFP placement.   AFP status was  reviewed every five  days by          the  prison official  who recommended  the particular  placement.          Domegan remained on AFP for seven and one-half days in May  1983,          and for five days in July 1983.            During  March  1984,  the  district  court  appointed  Goodwin,          Procter & Hoar [hereinafter Procter & Hoar] to represent Domegan.          The  final amended  complaint  asserted three  causes of  action:          cruel and  unusual punishment (Eighth and  Fourteenth Amendments;          42 U.S.C.    1983; M.G.L.  c. 12,    11 H,I);2  violation of  due                                                    _          process (Fourteenth  Amendment; 42 U.S.C.    1983; M.G.L.  c. 12,             11 H,I);  and violation of the Massachusetts  Civil Rights Act                  _          (M.G.L. c.  12,    11 I).   The final amended  complaint demanded                                _          declaratory and injunctive  relief, compensatory damages totaling          $50,000,and$35,000 inpunitivedamagesfromeach ofthetendefendants.3                                        ____________________          2Initially, Domegan  sought to establish that the  AFP was viola-          tive  of the Eighth Amendment, facially and as applied, but later          relinquished the  facial claim.   The "as applied"  claim alleged          that the defendant  officers and sergeants  assigned to the  AFP:          (i) turned off the  electricity to Domegan's cell to  prevent him          from  complying with the AFP  regimen for receiving  food at meal          time; (ii) refused to feed him, knowing  that he could not comply          with the AFP regimen; and (iii) turned off his water supply.          3The  ten defendants  named in the  final amended  complaint were          Joseph J. Ponte,  Superintendent at  MCI-Walpole; Frank  Leppert,          Administrator of the Department  Segregation Unit ("DSU") at MCI-          Walpole;  Peter  Gallagher, Acting  DSU  Administrator; Sergeants          Anthony Silva and James Brooks; and Officers Carl  Harrison, Gary          Mendes, Christopher Pires, Patrick Smith, and Brian  Bissonnette.          Three other defendants  were named in earlier complaints but were                                          5                                          5            Domegan  was granted  summary  judgment on  the procedural  due          process  claim.   The case  proceeded to  trial on  the remaining          claims in March 1989.  The jury awarded Domegan $1.00 in "compen-          satory" damages  on the due process claim,  but returned verdicts          for  all defendants  on  the remaining  Eighth Amendment  claims.          Judgment was  entered  in  the  amount of  $1.00  against  Ponte,          Leppert,  and Gallagher.4   Domegan  requested attorney  fees and          costs  in the amount of $88,655.16, pursuant to 42 U.S.C.   1988.          Although the district court  determined that Domegan was a  "pre-          vailing party" entitled to recover a  reasonable attorney fee, it          reduced  the amount  of the award  to $41,441.55 in  light of the          limited success achieved in litigation.  The defendants challenge          the fee award on several grounds.5                                          II                                          II                                        ____________________          dropped from the final amended complaint.            On  November 1,  1983, two  and one-half  months after  Domegan          filed his pro se complaint, MCI-Walpole instituted  a more varied                    ___ __          and  nutritious menu  for  AFP  inmates.   In  1985,  MCI-Walpole          revised  its post-deprivation  review procedures,  requiring that          each AFP inmate's  status be reassessed  after each meal.   On or          about October 11, 1988, prior to trial, Domegan was released from          state  custody, and  the  claims for  injunctive and  declaratory          relief were not pursued.          4It is not clear why judgment was never entered against the other          seven defendants.          5Although  judgment  was entered  only against  defendants Ponte,          Leppert  and Gallagher,  the  other seven  defendants joined  the          appeal because  the attorney fee award  ran against "defendants."          As  Domegan correctly concedes, however, there is no basis for an          award against the  seven codefendants who were found  not liable.          Accordingly, we dismiss these seven defendants-appellants.                                             6                                          6                                      DISCUSSION                                      DISCUSSION                                      __________          A.  Appellate Jurisdiction          A.  Appellate Jurisdiction              ______________________            The  district court  "Memorandum  and Order"  awarding attorney          fees was entered  on May 24, 1991.  A  defective notice of appeal          (No. 91-1625) was  filed on  June 24, 1991,  naming no  appellant          except Ponte, and then  only in the following caption:   "Domegan          v. Ponte, et al."  See  Torres v. Oakland Scavenger Co., 487 U.S.                             ___  ______    _____________________          312, 314-15, 318 (1988) (use of "et al." does not satisfy Fed. R.          App. P.  3(c) requirement that  notice of appeal  specify parties          appealing);  Pontarelli v. Stone, 930 F.2d  104, 108-09 (1st Cir.                       __________    _____          1991) (same).   In response to  our order to  show cause why  the          appeal  ought not be  dismissed except as to  Ponte, on July 16 a          motion for permission  to file  an amended notice  of appeal  was          filed by defendants' counsel  with the district court.   See Fed.                                                                   ___          R. App.  P. 4(a)(5).   The district court  granted the  motion ex                                                                         __          parte on  the following day.   But see  id. ("Notice of  any such          _____                          ___ ___  ___          motion which is filed after the expiration of the prescribed time          shall  be given  to the  other parties  in accordance  with local          rules.").   See also D.  Mass. R. 7.1(a)(2),(b),(e).   An amended                      ___ ____          notice of appeal  (No. 91-1753), naming  all ten appellants,  was          promptly filed.              Domegan  contends  that  the  ex parte  district  court  order,                                          __ _____          permitting appellants to file a corrected  notice of appeal after          the  expiration of  the original  appeal period,  was ineffective                                          7                                          7          since  the fourteen-day notice required by Local Rule 7.1 was not          served.  See Fed. R. App. P. 4(a)(5); D. Mass. R. 7.1(a)(2), (b),                   ___          (e); see also, e.g., Hable v.  Pairolero, 915 F.2d 394, 395  (8th               ___ ____  ____  _____     _________          Cir. 1990)  (requiring notice of rule 4(a)(5)  motion); Truett v.                                                                  ______          Johns-Manville Sales Corp., 725 F.2d  1301, 1302 (11th Cir. 1984)          __________________________          (same).   Domegan also challenges the  sufficiency of the showing          of "good  cause" or  "excusable neglect"  required under Fed.  R.          App. P. 4(a)(5).  See, e.g., Pontarelli, 930 F.2d at 109-112.  We                            ___  ____  __________          need not  address Domegan's contentions, however,  as the initial          notice of appeal was premature.            The district court "Memorandum  and Order," entered May 24, did          not satisfy the "separate document" rule.  See Fed. R. Civ. P. 58                                                     ___          advisory committee note (1963) ("The amended rule . . . requir[e-          s]  that there be  a judgment set  out on a  separate document             distinct from  any opinion or  memorandum     which provides  the          ________ ____  ___ _______ __  __________          basis for  the entry  of judgment.")  (emphasis added); Fiore  v.                                                                  _____          Washington  County Community  Mental Health  Ctr., 960  F.2d 229,          _________________________________________________          234-35 (1st Cir. 1992) (en banc) (discussing generally the nature          of a separate document); Smith v.  Massachusetts Dep't of Correc-                                   _____     ______________________________          tion,  936 F.2d  1390, 1393-94  (1st  Cir. 1991)  (memorandum and          ____          order  does  not constitute  "separate  document");  In re  Smith                                                               ____________          Corset  Shops, Inc.,  696 F.2d  971, 975  (1st Cir.  1982) (same,          ___________________          applying analogous Bankruptcy Rule).   As the order appealed from          was not  a "final judgment," see  Fed. R. Civ. P.  54(a), 58, the                                       ___          appeal  period never commenced running prior to the filing of the                                          8                                          8          corrected notice of appeal.  Fed. R. App. P. 4(a)(1), (7); Smith,                                                                     _____          936 F.2d  at 1394; Scola v. Boat Frances, R., Inc., 618 F.2d 147,                             _____    ______________________          151 (1st Cir.  1980); see also Bankers  Trust Co. v.  Mallis, 435                                ___ ____ __________________     ______          U.S.  381,  384-86  (1978)  (per curiam)  (purpose  of  "separate          document" rule  is to promote  greater predictability as  to when          time for appeal begins to run); Fiore, 960 F.2d at 233 (same).6                                          _____            Although appellants at all times treated the May 24 "Memorandum          and Order" as an appealable  order, the "separate document"  rule          is to be  strictly applied  as concerns the  commencement of  the          appeal  period.  See United  States v. Indrelunas,  411 U.S. 216,                           ___ ______________    __________          221-22 (1973)  (per curiam)  (applying rule 58  mechanically not-          withstanding  previous  aborted appeal  by same  appellant within          appeal period);  Fiore, 960 F.2d at  235 (discussing technicality                           _____          of  rule 58); Gregson &  Assocs. Architects v.  Government of the                        _____________________________     _________________          V.I., 675  F.2d 589, 592-93  (3d Cir.  1982) (Indrelunas  applied          ____                                          __________          despite both parties' treatment  of memorandum opinion as appeal-          able order); Caperton v. Beatrice  Pocahontas Coal Co., 585  F.2d                       ________    _____________________________          683, 688-90 (4th Cir. 1978) ("nor are we  free to penalize plain-          tiffs .  . . by  binding them to  their erroneous assertion  that          judgments" had been  entered); see  also Fiore, 960  F.2d at  237                                         ___  ____ _____                                        ____________________          6We  raise the  "separate document"  issue sua  sponte, as  it is                                                     ___  ______          intertwined  with Domegan's jurisdictional challenge.  See, e.g.,                                                                 ___  ____          Caperton v.  Beatrice Pocahontas Coal  Co., 585 F.2d  683, 688-89          ________     _____________________________          (4th Cir.  1978) (raising "separate document"  issue sua sponte);                                                               ___ ______          see  also Parisie  v.  Greer, 705  F.2d  882, 890-91  (7th  Cir.)          ___  ____ _______      _____          (Eschbach,  J.)  (discussing duty  of  court  to raise  "separate          document"  issue sua  sponte), cert.  denied,  464 U.S.  918, and                           ___  ______   _____  ______                  ___          cert. denied, 464 U.S. 950 (1983).          _____ ______                                          9                                          9          (emphasizing  that  the "separate  document"  requirement "should          always  be interpreted 'to prevent  loss of the  right to appeal,          not to  facilitate loss'")  (quoting Bankers  Trust, 435  U.S. at                                               ______________          386);  Willhauck v.  Halpin, 919  F.2d 788,  792 (1st  Cir. 1990)                 _________     ______          (same); 9 Moore's Federal Practice    58.02.1[2], at 58-20 to 21.                    ________________________          Nevertheless, a notice of appeal deemed premature due  to noncom-          pliance with the  "separate document" rule  does not deprive  the          appellate  court of  subject matter jurisdiction,  Bankers Trust,                                                             _____________          435 U.S. at 384, 385; see  also Smith, 936 F.2d at 1394 (applying                                ___  ____ _____          Bankers Trust), and the  appeal may proceed in the  normal course          _____________          where  the court of  appeals determines that  the "separate docu-          ment"  requirement was waived by the parties.  Bankers Trust, 435                                                         _____________          U.S. at 384-86; Smith, 936 F.2d at 1394.                            _____            The district court treated its May 24 "Memorandum and Order" as          an appealable order;  it was  duly docketed; and  no party  chal-          lenged  appellate jurisdiction  for  failure to  comply with  the          "separate  document" requirement.   See Smith,  936 F.2d  at 1394                                              ___ _____          (finding waiver);  see also  Bankers Trust,  435  U.S. at  387-88                             ___ ____  _____________          (considering same factors).  Compare Fiore, 960 F.2d at 232, 237.                                       _______ _____          All parties to the present appeal consistently treated the May 24          "Memorandum  and Order"  as  a final  judgment  and there  is  no          suggestion that unfair prejudice would be occasioned any party by          our assertion  of appellate  jurisdiction, without remanding  for          formal compliance with the  "separate document" requirement.  See                                                                        ___          Smith,  936 F.2d  at  1394 (assertion  of appellate  jurisdiction          _____                                          10                                          10          proper, as  parties waived  "separate  document" requirement  and          would  not be  prejudiced).   Moreover,  dismissal of  the second          notice of appeal in these circumstances, solely to permit compli-          ance  with the  "separate document"  rule, would  force "[w]heels          [to] spin for no practical purpose."  Bankers Trust, 435 U.S.  at                                                _____________          385; Smith, 936 F.2d  at 1394 ("We will not needlessly 'force the               _____          parties  round and round  the mulberry  bush' .  . .  ." (quoting          Jusino v. Zayas, 875 F.2d 986, 989-90 (1st Cir. 1989)).          ______    _____          B.  The Merits          B.  The Merits              __________            1. "Prevailing Party"            1. "Prevailing Party"                ________________            The  principal focus  of  appellants' discontent  with the  fee          allowance in the instant  case is that the district  court deter-          mined  that  Domegan  was a  "prevailing  party"  even  though he          obtained only a one dollar damage award.  Absent "special circum-          stances" which would  render an award unjust, ordinarily  a civil          rights plaintiff who  qualifies as a "prevailing  party" is enti-          tled to  a reasonable award  of attorney  fees under 42  U.S.C.            1988.7  Hensley v. Eckerhart, 461 U.S. 424, 429 (1983);  de Jesus                  _______    _________                             ________          v.  Banco Popular  de Puerto  Rico, 918  F.2d 232, 234  (1st Cir.              ______________________________          1990); Stefan v. Laurenitis, 889 F.2d 363, 370 (1st Cir. 1989).                 ______    __________                                        ____________________          7Section 1988 provides, in part:  "In any action or proceeding to          enforce a provision of section[] . . . 1983 . . ., the  court, in          its discretion, may allow the prevailing party . . . a reasonable          attorney's fee as part of the costs."  42 U.S.C.   1988.                                          11                                          11            A prevailing party is  one who "has succeeded on  'any signifi-          cant issue in litigation which achieve[d] some of the benefit the          [plaintiff] sought in  bringing suit'. . . ."  Texas State Teach-                                                         __________________          ers  Ass'n v.  Garland Indep.  Sch. Dist.,  489 U.S.  782, 791-92          __________     __________________________          (1989) [hereinafter Texas Teachers] (quoting  Nadeau v. Helgemoe,                              ______________            ______    ________          581 F.2d 275, 278-79 (1st Cir. 1978)).  "[A]t a minimum . . . the          plaintiff  must be able  to point to a  resolution of the dispute          which  changes  the legal  relationship  between  itself and  the          defendant."  Id.  at 792.   Moreover, even  under this  "generous                       ___          formulation," as the Court  stated in Texas Teachers,  the plain-                                                ______________          tiff cannot  qualify as a "prevailing party" if his "success on a          legal  claim  can be  characterized  as  purely technical  or  de                                                                         __          minimis . . . ."   Id.  "The  touchstone of the prevailing  party          _______            ___          inquiry must be the material alteration of the legal relationship                              ___________________          of the parties  in a manner which  Congress sought to promote  in                                      _____  ________ ______ __ _______  __          the fee statute."  Id. at 792-93 (emphasis added).           ___ ___ _______    ___            The  district   court  determination   that  Domegan   met  the          "prevailing  party" test  is  subject to  de  novo review.    See                                                    __  ____            ___          Romberg v. Nichols, 953 F.2d 1152, 1156 (9th Cir. 1992) ("We must          _______    _______          reverse  .  . .  if the  district  court applied  incorrect legal          standards to reach [the factual findings underlying its "prevail-          ing party" determination]."); Guglietti  v. Secretary of Health &                                        _________     _____________________          Human Services, 900 F.2d  397, 399 (1st Cir. 1990)  (where normal          ______________          deference due  EAJA  fee  award  could not  be  accorded  because          district court misapprehended the  record, court of appeals would                                          12                                          12          decide case, rather than remand, as the facts were not in genuine          dispute  and the "prevailing  party" question is  "largely one of          law .  . .").   But cf. McDonald  v. Secretary of  Health & Human                          ___ ___ ________     ____________________________          Services,  884 F.2d 1468, 1474 (1st Cir. 1989) ("abuse of discre-          ________          tion" standard governs review of "prevailing party" determination          in EAJA fee award cases).8            Although Domegan met  with no success  on the Eighth  Amendment          and  state law  claims, he  obtained a  favorable verdict  on the                                        ____________________          8McDonald broadly  established an "abuse of  discretion" standard           ________          of  review  for all  "prevailing  party"  determinations in  EAJA          cases.    As  subsequently demonstrated  in  Guglietti,  however,                                                       _________          certain  aspects of  the  "prevailing party"  determination in  a          particular case  may turn  solely on  the proper  legal standard,          making  de  novo  review  appropriate.   The  "prevailing  party"                  __  ____          determination  in the  present case  does not  entail any  of the          considerations which  led us to  apply a deferential  standard of          review in  McDonald.   Nor does  it involve  fact-based inquiries                     ________          like those we found appropriate for deferential review in Langton                                                                    _______          v.  Johnston, 928 F.2d 1206, 1225 (1st Cir. 1991) (district court              ________          assessment of  causation and  materiality elements in  the "cata-          lyst" test) (  1988  award).   The only question  in the  present          case is whether  a judgment  for one dollar  in damages  entitles          Domegan  to  "prevailing party"  status.   The  facts are  not in          dispute, see Guglietti, 900  F.2d at 399, and application  of the                   ___ _________          "prevailing party"  test presents a pure question of law warrant-          ing plenary review.            Moreover, as we have explained, the district court's discretion          to deny a fee award to a "prevailing party" under section 1988 is          narrowly circumscribed:            Despite the explicit grant of  discretion in section 1988, it            is  well-established [sic] that a court may not deny an award                                                    ___ ___            of attorney's fees to a prevailing civil rights plaintiff  in            the  absence  of special  circumstances  rendering  the award            unjust, and this court requires  findings of fact and conclu-            sions of  law identifying  the special circumstances  and ex-            plaining why an award would be inappropriate.          de Jesus, 918 F.2d at 234 (citations omitted) (emphasis added).          ________                                          13                                          13          procedural  due process  claim, a  "significant issue  in litiga-          tion."  See  Langton v. Johnston,  928 F.2d 1206, 1226  (1st Cir.                  ___  _______    ________          1991) (assessing significance  "given the scope and  tenor of the          litigation as  a whole").9  Appellants  insist, nonetheless, that          the  final judgment  cannot have  had any  significant effect  on          their legal  relationship with Domegan,  and question  how a  one          dollar  damage  award can  be  considered other  than  de minimis                                                                 __ _______          success.  Although one dollar most assuredly is a nominal amount,          the final judgment nonetheless  represented "some" of the benefit                                        ____________________          9Appellants  attempt  to demonstrate  the  de  minimis nature  of                                                     __  _______          Domegan's one dollar "compensatory" damage award on the procedur-          al due  process claim  against three  defendants by pointing  out          that he  asserted 42  "defendant/counts" at  the "height"  of the          litigation.  The same sort of argument was made by the defendants          in Rogers v. Okin, 821 F.2d 22 (1st Cir. 1987), cert. denied, 484             ______    ____                               ____  ______          U.S. 1010  (1988).   In rejecting  their  contention, this  court          stated that the defendants had "adopted the kind of 'mathematical          approach' criticized in [Hensley v. Eckerhart, 461 U.S. 424, 435-                                   _______    _________          36 n.11 (1983)]  . . . ."  Id. at  25.  Along the lines explained                                     ___          in  Rogers, "prevailing party"  success cannot be  measured by an              ______          arithmetic comparison of  the claims and defendants joined in the          complaint with the number  of claims and defendants named  in the          final judgment.   Id. (rejecting defendants'  attempt to minimize                            ___          plaintiffs' success by  claiming victory on  "no fewer than  224"          issues);  see  Hensley, 461  U.S.  at  435-36 n.11  (mathematical                    ___  _______          comparison of the  total number of  issues in a  case with  those          actually  won  "provides  little aid  in  determining  what is  a          reasonable  fee in light of all the relevant factors"), quoted in                                                                  ______ __          Rogers, 821 F.2d at  25.  Domegan's procedural due  process claim          ______          doubtless  represented  a  significant  constitutional  claim  in          qualitative terms.   We cannot treat  the quantitative dimensions          of the relief obtained on the due process claim as dispositive of          the  allowability, vel  non, of  a   1988  fee award,  as distin-                             ___  ___          guished  from the  reasonableness of  the amount awarded.   Texas                                                                      _____          Teachers,  489 U.S. at 790,  793 ("the degree  of the plaintiff's          ________          overall success" goes to the reasonableness, not the allowability          of the award);  Nadeau v. Helgemoe,  581 F.2d 275, 281  (1st Cir.                          ______    ________          1978)  (some fee award appropriate where success is but partially                  ____          attributable to plaintiff's lawsuit).                                          14                                          14          sought in the litigation; namely, an enforceable judgment against          the defendant officials who deprived the plaintiff of the consti-          tutional right  to due process  of law.   We are unable  to agree          that  an  enforceable  judgment for  nominal  damages  redressing          significant procedural due process violations  cannot qualify the          plaintiff for "prevailing party" status.10            a.  Baseline Criteria            a.  Baseline Criteria                _________________            Prior  to Texas  Teachers  at  least,  attorney fees  were  not                      _______________          withheld under  section 1988 simply because  the plaintiff merely          obtained a nominal damage  award.  Perez v. University  of Puerto                                             _____    _____________________                                        ____________________          10Similarly, the Supreme Court has  never intimated that a  valid          final judgment declaring a violation of a claimant's civil rights          constituted  "purely  technical  or de  minimis"  success  simply                                              __  _______          because  no compensatory  damage award  or injunctive  relief was          obtained.  Rather, presumably in recognition of the fact that the          wrong  occasioned by a procedural due  process violation often is          not  susceptible to  monetary measurement,  the Court  has stated          that plaintiffs who establish  a procedural due process violation          "nevertheless will be entitled to  recover nominal damages not to                                ________          exceed one dollar .  . . ."  Carey  v. Piphus, 435 U.S.  247, 267                                       _____     ______          (1978) (emphasis added); Maldonado Santiago v. Velazquez  Garcia,                                   __________________    _________________          821 F.2d 822, 829 (1st Cir.  1987).  (citing Carey).  See Memphis                                                       _____    ___ _______          Community Sch. Dist. v.  Stachura, 477 U.S. 299, 308  n.11 (1986)          ____________________     ________          (Nominal  damages  "are the  appropriate  means  of 'vindicating'          rights whose  deprivation has  not caused actual,  provable inju-          ry");  see also, e.g., Fassett by and through Fassett v. Haeckel,                 ___ ____  ____  ______________________________    _______          936 F.2d 118,  121 (2d Cir.  1991) (Fourth Amendment  violation);          Floyd  v. Laws, 929 F.2d 1390, 1401-03 (9th Cir. 1991) (violation          _____     ____          of "constitutional rights"); Cowans v. Wyrick, 862 F.2d 697, 699,                                       ______    ______          700 (8th Cir. 1988) (Eighth Amendment violation); Farrar v. Cain,                                                            ______    ____          756  F.2d  1148,  1152  (5th  Cir.  1985)  (violation  of  "civil          rights");  Kincaid v.  Rusk, 670  F.2d 737,  746 (7th  Cir. 1982)                     _______     ____          (violation of due process and First Amendment); McGhee v. Draper,                                                          ______    ______          639 F.2d 639, 646 (10th Cir. 1981) (due process violation).   But                                                                        ___          cf. Ganey v. Edwards, 759 F.2d 337, 339 (4th Cir. 1985) (award of          ___ _____    _______          nominal damages left to jury).                                          15                                          15          Rico,  600 F.2d  1, 2 (1st  Cir. 1979)  ("Fees may  not be denied          ____          simply  because only  nominal  damages are  awarded."); Ganey  v.                                                                  _____          Edwards, 759 F.2d 337, 339-40 (4th Cir. 1985) (liability determi-          _______          nation  need not  even be accompanied  by nominal  damage award);          Burt v. Abel,  585 F.2d 613, 618 (4th  Cir. 1978) (nominal damage          ____    ____          award  sufficient); Basiardanes  v. City  of Galveston,  682 F.2d                              ___________     __________________          1203,  1220 (5th  Cir. 1982)  (judgment for  nominal  damages may          warrant  fee award); Skoda v.  Fontani, 646 F.2d  1193, 1194 (7th                               _____     _______          Cir.  1981) (per  curiam) ($1.00  judgment  satisfies "prevailing          party" requirement); Hogue v.  Clinton, 791 F.2d 1318,  1323 (8th                               _____     _______          Cir.) (absent proof of actual injury, plaintiff should be granted          nominal damages and  attorney fees), cert. denied,  479 U.S. 1008                                               _____ ______          (1986);  Scofield v. City of Hillsborough, 862 F.2d 759, 766 (9th                   ________    ____________________          Cir. 1988)  (attorney fees allowable  solely on basis  of nominal          damage award); see  Derr v.  Gulf Oil  Corp., 796  F.2d 340,  344                         ___  ____     _______________          (10th Cir. 1986) (Title VII case citing Nephew v. City of Aurora,                                                  ______    ______________          766 F.2d 1464, 1466 (10th Cir. 1985)), a   1988 case subsequently          reversed on other  grounds, 830  F.2d 1547 (10th  Cir. 1987)  (en          banc); nominal damage award entitled plaintiff to attorney fees);          Garner v. Wal-Mart Stores,  Inc., 807 F.2d 1536, 1539  (11th Cir.          ______    ______________________          1987) (Title  VII case; nominal damage  award confers "prevailing          party" status).  But  compare Huntley v. Community Sch.  Bd., 579                           ___  _______ _______    ___________________          F.2d  738, 742  (2d  Cir. 1978)  (district  court did  not  abuse                                            ________  _____          discretion in  determining that  $100 damage award  on procedural          due process  claim amounted,  at most,  to "moral victory")  with                                                                       ____                                          16                                          16          Milwe v. Cavuoto, 653 F.2d 80,  84 (2d Cir. 1981) (nominal damage          _____    _______          award on constitutional claim  stemming from official  misconduct          "sufficient to support an award of fees") (alternate holding).            Much  as the  Fifth Circuit recently  pointed out,  however, in          Estate of Farrar v.  Cain, 941 F.2d  1311, 1317 (5th Cir.  1991),          ________________     ____          cert.  granted sub nom. Farrar v. Hobby,  112 S. Ct. 1159 (1992),          ____   _______ ___ ____ ______    _____          all of  the cases  cited above,  except Scofield, antedate  Texas                                                  ________            _____          Teachers as  well as Hewitt  v. Helms, 482  U.S. 755 (1987),  and          ________             ______     _____          Rhodes  v. Stewart, 488 U.S. 1 (1988) (Per Curiam).  Furthermore,          ______     _______          the courts of appeals which have been presented with the issue in          the  wake of Texas Teachers  have drifted apart.11   Compare Rom-                       ______________                          _______ ____          berg v. Nichols, 953 F.2d 1152,  1159 (9th Cir. 1992) ("a nominal          ____    _______          damages award does not  a nominal victory make"); Fassett  by and                                                            _______________          through Fassett v. Haeckel, 936 F.2d 118, 122 (2d Cir. 1991) (fee          _______________    _______          award appropriate where nominal  damages are recovered for depri-          vation of  an absolute constitutional right)  (citing Ruggiero v.                                                                ________          Krzeminski,  928 F.2d  558, 564  (2d Cir.  1991)) with  Estate of          __________                                        ____  _________          Farrar, 941 F.2d at  1315-17 (nominal damage award represents  de          ______                                                         __          minimis success where  sole purpose  of lawsuit  was recovery  of          _______                ____          damages); Spencer v. General Electric Co., 894 F.2d 651, 662 (4th                    _______    ____________________                                        ____________________          11The Fourth and Fifth Circuits have concluded, contrary to their          pre-Texas Teachers  precedent, that a nominal  damage award alone              ______________          cannot confer  "prevailing party" status.   See Denny  v. Hinton,                                                      ___ _____     ______          131  F.R.D.  659, 662-63  (M.D.N.C. 1990),  aff'd mem.,  Denny v.                                                      _____ ____   _____          Elliott,  937 F.2d  602 (4th  Cir.), and  aff'd mem.  Lawrence v.          _______                              ___  _____ ___   ________          Hinton,  937 F.2d 603 (4th Cir. 1991); Estate of Farrar, 941 F.2d          ______                                 ________________          at 1315 (where sole purpose of lawsuit was to recover damages).                         ____                                          17                                          17          Cir.  1990) (dicta)  (indicating that  $1.00 judgment  might con-          stitute de minimis success  absent any other favorable litigation                  __ _______          result); Denny v. Hinton, 131  F.R.D. 659, 662-63 (M.D.N.C. 1990)                   _____    ______          (nominal  damage award  constitutes  de  minimis success),  aff'd                                               __  _______            _____          mem., Denny v. Elliott,  937 F.2d 602  (4th Cir. 1991), and  Law-          ____  _____    _______                                  ___  ____          rence v. Hinton,  937 F.2d 603 (4th Cir. 1991).   See also Brewer          _____    ______                                   ___ ____ ______          v.  Chauvin, 938 F.2d  860, 864 (8th Cir.  1991) (citing Hogue v.              _______                                              _____          Clinton, 791 F.2d 1318 (8th Cir. 1986)).          _______            As  Texas Teachers explains, in order for a claimant to qualify                ______________          for "prevailing party" status  the litigation must achieve,  at a          minimum,  a  "material  alteration"  in  the  legal  relationship          between the parties.  Texas Teachers, 489 U.S. at 792.  The Court                                ______________          in Texas  Teachers limned its "material  alteration" standard, in             _______________          broad outline,  through reference to  two earlier cases,  see id.                                                                    ___ __          (discussing Hewitt v. Helms,  482 U.S. 755 (1987), and  Rhodes v.                      ______    _____                             ______          Stewart, 488 U.S. 1 (1988) (Per Curiam)), to which we now turn.          _______            In  Hewitt v.  Helms,  482 U.S.  755  (1987), a  prison  inmate                ______     _____          commenced  a section 1983 action for damages, as well as declara-          tory and  injunctive relief,  alleging due process  violations by          prison  officials.   Helms was  released on  parole prior  to any          decision  by the  district court,  and the  district court  later          entered  summary  judgment  against  Helms.   The  Third  Circuit                                      _______          reversed  on the ground that  Helms had been  denied due process.          The  court  of appeals  ordered the  case  remanded for  entry of          judgment in favor of Helms, except as to any defendant determined                                          18                                          18          entitled  to qualified immunity.   Prior to the  actual remand to          the  district court,  however,  the  defendant  prison  officials          secured  a favorable  Supreme  Court decision  dismissing one  of          Helms'  claims.  After remand  from the Supreme  Court, the Third          Circuit reaffirmed its  earlier holding on the  other due process          claim and again remanded  to the district court  on the issue  of          qualified  immunity.  On remand,  Helms did not pursue injunctive          relief.  The district court  once again entered summary  judgment          against Helms, on the ground that the defendants were immune from          liability for damages, and denied a fee award under section 1988.          The  Third Circuit again reversed, on the ground that its earlier          interlocutory  ruling that  Helms'  due process  rights had  been          violated constituted significant success.            The Supreme Court  disagreed.  Justice Scalia  pointed out that          Helms  had obtained no relief whatever on any claim in litigation             no judgment, no damages, no injunctive relief, and no declara-          tory relief.   "The most  that he obtained  was an  interlocutory                                                              _____________          ruling that  his complaint  should not  have  been dismissed  for          failure  to state a constitutional  claim."  Hewitt,  482 U.S. at                                                       ______          760  (emphasis added).  The  Supreme Court refused  to equate the          Third Circuit  ruling with  declaratory relief, since  the inter-          locutory ruling  could not conceivably alter  the legal relation-                           _____ ___                                          19                                          19          ship  between the  parties12  in the  face  of a  final  judgment          "against the  plaintiff . . ., " id. at 763 (emphasis added), and           _______ ___  _________          ___          the litigation  resulted in  no other "relief"  which "affect[ed]                                                                 ______ __          the behavior  of the defendant[s] towards the  plaintiff," id. at          ___ ________  __ ___ _________ _  _______ ___  _________   ___          761 (emphasis in original).            We are  not persuaded that  Hewitt can be  considered analogous                                        ______          authority for withholding "prevailing party" status on the ground          that  a final judgment for  nominal damages is  no different than          the Third  Circuit interlocutory ruling declaring  a violation of          Helms'  due  process  rights.   Moreover,  as  the Court  clearly          explained in Hewitt:                       ______            Respect  for ordinary  language  requires  that  a  plaintiff            receive  at  least some  relief on  the  merits of  his claim            before he can be  said to prevail.  See  Hanrahan v. Hampton,                                                ___  ________    _______            446 U.S. 754, 757 (1980).  Helms obtained no relief.  Because            of the  defendants' official immunity he  received no damages            award.  No injunction or declaratory judgment was  entered in            his favor.  Nor did Helms obtain relief without  benefit of a            formal  judgment    for example,  through a consent decree or            settlement.   See Maher v.  Gagne, 448 U.S.  122, 129 (1980).                          ___ _____     _____            The  most that he  obtained was an  interlocutory ruling that            his complaint  should not have been dismissed  for failure to            state a constitutional claim.  That is not the stuff of which            legal victories are made.  Cf. Hanrahan, supra, at 758-59.                                       __  ________  _____                                        ____________________          12It is to this  same discussion in  Hewitt, 482 U.S. at  760-61,                                               ______          that  the Court  cites in  Texas Teachers,  489  U.S. at  792, to                                     ______________          explicate its threshold  standard for  "prevailing party"  status          under  42 U.S.C.    1988.   We consider  it no  happenstance that          Texas Teachers and Hewitt  both cite to Hanrahan v.  Hampton, 446          ______________     ______               ________     _______          U.S. 754 (1980) (Per  Curiam), and its seminal discussion  of the          threshold  test for "prevailing party" status.  See infra at note                                                          ___ _____          13.                                          20                                          20          482 U.S. at 760.13                                        ____________________          13In Hanrahan, 446 U.S.  at 756-57, the Supreme Court  reversed a               ________            1988  fee award made pendente lite to appellate counsel, on the                                 ________ ____          ground that all rulings favorable  to the plaintiffs were  inter-          locutory and procedural.  The Court noted that               it  seems  clearly to  have been  the  intent of  Congress to            permit  such an interlocutory award  only to a  party who has            established  his entitlement to some relief  on the merits of            ___________  ___ ___________ __ ____ ______  __ ___ ______ __            his claims,  either in  the trial  court or  on appeal.   The            ___ ______            congressional Committee Reports  described what were  consid-            ered to  be appropriate  circumstances for  such an  award by            reference to two cases     Bradley v. Richmond School  Board,                                       _______    ______________________            416 U.S. 696 (1974), and Mills v. Electric Auto-Lite Co., 396                                     _____    ______________________            U.S. 375 (1970).  S. Rep.  No. 94-1011, [p.] 5 [(1976)]; H.R.            Rep. No. 94-1558,  [p.] 8 [(1976)].   In each of those  cases            the  party  to whom  fees  were awarded  had  established the                                                                      ___            liability  of the  opposing  party, although  final  remedial            _________  __ ___  ________  _____                   ________            orders had not been entered.          Id. at 757 (emphasis added).  Texas Teachers, 489 U.S. at 790-92,          ___                           ______________          reaffirms this essential element  of the "prevailing party" test,          which was discussed not only in Hanrahan, 446 U.S. at 757, but in                                          ________          Hewitt, 482 U.S. at 760, as well.          ______            Furthermore, as Hanrahan indicates,  in Mills v. Electric Auto-                            ________                _____    ______________          Lite Co.,  396 U.S. 375 (1970),  the Court deemed an  interim fee          ________                                              _______          award appropriate once liability had been determined, even though                                 _________          "the question of relief  [would] await further proceedings .  . .          .;" that is,  even though no order directing  relief had yet been          granted.  It  is particularly noteworthy, we  believe, that Mills                                                                      _____          is cited with  approval in the companion Senate Report accompany-          ing   1988,  as well  as in  the House  Report, since  the latest          Supreme  Court pronouncement  on the  subject states  that "[t]he          touchstone of the  prevailing party inquiry must  be the material          alteration of the legal  relationship of the parties in  a manner                                                               __  _ ______          which  Congress sought  to promote  in the  fee statute."   Texas          _____  ________ ______  __ _______  __ ___  ___ _______     _____          Teachers,  489  U.S. at  793 (emphasis  added).   Of  course, the          ________          Hewitt citation  to Hanrahan  illuminates the reason  Helms could          ______              ________          not possibly  have been granted "prevailing  party" status, since              ________          he never established entitlement to any relief.             _____             ___________            Finally, the Supreme Court observed in Hanrahan:                                                   ________            It seems apparent from  these passages that Congress intended            to permit the interim award of counsel fees only when a party            has prevailed  on the merits of at  least some of his claims.            For  only in that event has there been a determination of the                                                     _____________            'substantial rights  of the  parties,' which  Congress deter-                                          21                                          21            The  Fifth Circuit recently vacated a section 1988 fee award to          plaintiffs whose only relief on the merits of their claims  was a          judgment for nominal damages, stressing "the principles set forth          in [Hewitt] and applied in Rhodes [v.  Stewart] . . . ."   Estate              ______                 ______      _______             ______          of Farrar  v. Cain, 941 F.2d at 1311, 1317 (5th Cir. 1991), cert.          _________     ____                                          ____          granted sub nom., Farrar v. Hobby,  112 S. Ct. 1159 (1992).  With          _______ ___ ____  ______    _____          respect, and recognizing  the closeness of the question, we would          ascribe a somewhat different intendment to the principles enunci-          ated in Hewitt and applied in  Rhodes; that is, as not precluding                  ______                 ______          "prevailing party" status for the claimant who obtains sufficient          relief  to effect a material alteration in the legal relationship          out of  which the  claim for  relief arose.   In other  words, we          think the principles enunciated  in Hewitt portend no significant                                              ______          departure  from earlier  Supreme  Court criteria  for determining          "prevailing  party" status on the part of a plaintiff who obtains          an  enforceable judgment  for  nominal damages  on a  significant          constitutional claim.14                                        ____________________            mined was a necessary foundation for departing from the usual            rule in this country  that each party is to  bear the expense            of his own attorney.          Hanrahan,  446 U.S. at 757-58  (emphasis added) (quoting H.R. No.          ________          94-1558, p. 8 (1976)).          14Prior to Hewitt, the  Court held that "liability on  the merits                     ______                        _________          and  responsibility for fees go  hand in hand;  where a defendant          has not been prevailed against,  either because of legal immunity                                                  _______ __ _____ ________          or  on the merits,   1988 does  not authorize a fee award against          that  defendant."  Kentucky v.  Graham, 473 U.S.  159, 165 (1985)                             ________     ______          (emphasis  added).  See also Supreme Court of Virginia v. Consum-                              ___ ____ _________________________    _______          ers Union of the United States, Inc., 446 U.S. 719, 738-39 (1980)          ____________________________________                                          22                                          22            The other Supreme  Court case  discussed in  Texas Teachers  is                                                         ______________          Rhodes v. Stewart, 488 U.S. 1 (1988) (Per Curiam), a section 1983          ______    _______          action in which two prison  inmates obtained a judgment declaring          that their First and Fourteenth Amendment rights had been violat-          ed  by prison officials who failed to comply with prison adminis-          trative procedures regulating  magazine subscriptions by inmates.          The  district  court  judgment  ordered  compliance  and  awarded          attorney fees.  The  Sixth Circuit affirmed the section  1988 fee          award.   The Supreme Court  reversed, observing that  "[t]he case                                                                  _ __ ____          was  moot  before judgment  issued,  and  the judgment  therefore          ___  ____  ______ ________           ___  ___ ________  _________          afforded the plaintiffs no relief whatsoever[,]" id. at 4 (empha-          ________                __ ______ __________     ___          sis added),  since one  plaintiff-inmate died  and the  other was          released from  custody prior to judgment.   Whatever relief other          inmates  might realize  from the  judgment,15 the  plaintiffs, as          former  inmates,  realized no  relief  and,  therefore, were  not          ______          entitled  to  "prevailing party"  status.   Id.   Thus,  we think                                                      ___                                        ____________________          (overturning    1988  fee award  premised  on  conduct for  which          defendants possessed absolute legislative immunity).          15In the  instant case,  notwithstanding that the  challenged AFP          procedures  were revised within three months  after the filing of          the pro se complaint,  Domegan does not contend that  an informal              ___ __          alteration in  the parties' legal relationship  was occasioned by          the litigation.  See Nadeau, 581 F.2d at 281 ("We .  . . consider                           ___ ______          the chronological sequence of events to be an important, although          clearly  not definitive  factor,  in determining  whether or  not          defendant can be reasonably  inferred to have guided his  actions          in response to plaintiff's lawsuit."); see also Langton, 928 F.2d                                                 ___ ____ _______          at  1225 ("'the mere  existence of a  temporal coincidence  . . .          cannot alone suffice' to engage the gears of the catalyst test.")          (quoting  Martinez v.  Rhode  Island Housing  & Mortgage  Finance                    ________     __________________________________________          Corp., 628 F. Supp. 996, 1001 (D.R.I. 1986)).          _____                                          23                                          23          Rhodes signifies no different result in  the present context than          ______          would have been required under its predecessor, Hewitt.                                                          ______            At this  point in  our analysis,  as we  see  it, the  baseline          standard for "prevailing party" status set out in Texas  Teachers                                                            _______________          has been  met.   Domegan obtained  an enforceable  final judgment          affording at least some  relief against the defendant corrections          officials  who  violated  his  procedural  due  process rights.16          Furthermore, we consider the nominal damage award  not only "some          relief on  the merits" of a significant constitutional claim, see                                                                        ___          Texas  Teachers, 489  U.S. at  792 (quoting  Hewitt, 482  U.S. at          _______________                              ______          760),17  but relief commensurate  with the intrinsically-nonpecu-                                        ____________________          16We recognize, of course,  that one dollar is a  nominal amount.          Yet we  cannot think that a nominal  damage award does not repre-          sent "some  relief," particularly  where the significance  of the          constitutional claim  and the nature of  the established depriva-          tion  are  not susceptible  to  monetary measurement.    Thus, we          believe  we must recognize that the nominal damage award does not          warrant an  inference that  the fact-finder intended  to minimize          the seriousness of the  wrong done, or the substantiality  of the          relief  intended, since  the  intangible nature  of the  absolute          constitutional  injury in the  instant case is  not measurable in          monetary terms.          17Cf.  Walker v. Anderson Elec. Connectors, 944 F.2d 841, 843 n.4            ___  ______    _________________________          &  845-47 (11th Cir. 1991)  (upholding denial of  fee award where          Title  VII jury found that defendant's  sexual harassment had not          been the  proximate cause  of any lost  work, thereby  precluding          even a nominal damage award; where court stated that "an award of          nominal  damages .  .  . would  make  the prospect  of  obtaining          attorney fees much easier . . . ."), petition for cert. filed, 60                                               ________ ___ _____ _____          U.S.L.W. 3800 (U.S.  May 8, 1992) (No.  91-1794); Warren v.  Fan-                                                            ______     ____          ning,  950 F.2d 1370, 1375  (8th Cir. 1991)  (where money damages          ____          alone were requested, and  jury found Eighth Amendment violation,          plaintiff "and his counsel . . .  have no one to blame but  them-          selves for  the jury's decision  not to  award nominal  damages,"          since they  proposed a  jury instruction which  left any  nominal          damage  award to the discretion of the jury, even though applica-                                          24                                          24          niary procedural due  process deprivation established  in litiga-          tion.18            b.  Purely Technical or de minimis Success            b.  Purely Technical or de minimis Success                ______________________________________            Notwithstanding the majority  view prevailing among  the courts          of  appeals    allowing section 1988 attorney fee awards based on          an enforceable judgment for  nominal damages    see supra  at pp.                                                          ___ _____          14-16, the residual "prevailing  party" standard recently enunci-          ated by a unanimous  Court in Texas Teachers concededly  gives us                                        ______________          pause.   The opinion cautioned  that a district  court might con-                                                 ________  _____          clude that a  civil rights  claimant was not  eligible for  "pre-          vailing party" status if the "success [achieved] on a legal claim                                        ____________________          ble law mandated nominal damage award).          18Appellants  emphasize  that  Domegan  could  not  have obtained          injunctive  or  declaratory  relief  at  the  time  judgment  was          entered, because the AFP had been revised in 1983 and Domegan had          been released from  state custody in 1988.   Accordingly, relying          on  Hewitt and Rhodes, and  the Fifth Circuit's interpretation of              ______     ______          those  cases  in Estate  of  Farrar,  appellants argue  that  the                           __________________          judgment  in  no  way  affected their  behavior  toward  Domegan.                                                 ________          Unlike  the plaintiffs  in  Hewitt and  Rhodes, however,  Domegan                                      ______      ______          obtained an  enforceable judgment for nominal  damages redressing          appellants'  previous  violations  of   Domegan's  constitutional          rights.            We are  satisfied that  the intendment appellants  attribute to          the  threshold  "prevailing  party"  standard set  out  in  Texas                                                                      _____          Teachers would work results  sufficiently foreign to the develop-          ________          ing  appellate  caselaw under  section 1988  as  to make  its sub                                                                        ___          silentio  adoption by  the  Supreme  Court extremely  improbable.          ________          Thus, we do  not interpret  Texas Teachers or  its precursors  as                                      ______________          requiring a material alteration  in the future legal relationship          _________                               ______          between the parties.  In circumstances where the wrong occasioned          the  claimant is  nonpecuniary in  nature, we  think an  award of          nominal damages can alter the legal relationship out of which the                                        _____ ____________          dispute  arose as  significantly as  a  large monetary  award can          compensate for pecuniary injury.                                          25                                          25          can  be characterized as purely technical or  de minimis . . . ."                                                        __ _______          Texas Teachers, 489  U.S. at 792.   Under the de  minimis success          ______________                                __  _______          standard,  therefore, we  must determine  whether an  enforceable          judgment  awarding nominal  damages on  a procedural  due process          claim  can  effect  a  sufficiently material  alteration  in  the                                              ________          parties' legal relationship to  entitle the claimant to "prevail-          ing party" status.            First, we examine the illustration  of "purely technical or  de                                                                         __          minimis success" taken from the Texas Teachers case itself, where          _______                         ______________          the plaintiff teachers'  organizations successfully challenged  a          school policy forbidding teacher meetings during non-school hours          absent  prior approval  from  the school  principal.   The  Court          hypothesized that  plaintiffs would not have  qualified for "pre-          vailing party"  status on  this basis  alone, as  "[t]he District          Court [had]  characterized this issue as  'of minor significance'          and  noted that there was  'no evidence that  the plaintiffs were                                      __ ________ ____  ___ __________ ____          ever refused permission to  use school premises during non-school          ____ _______ __________ __  ___ ______ ________ ______ __________          hours.'"  Texas Teachers, 489  U.S. at 792 (quoting App. to  Pet.          _____     ______________          for  Cert. 60a  n.  26) (emphasis  added).   Since  there  was no          evidence  that the  particular school  policy  ever had  been, or          would  be,  applied, their  successful  challenge  did not  avail          plaintiffs of  sufficient "relief"  to effect a  "material alter-          ation in  the legal relationship  between the parties."   Compare                                                                    _______          Rhodes, 488 U.S. at 4.          ______                                          26                                          26            We interpret  the Texas  Teachers hypothetical to  require some                              _______________          justiciable past, present or  impending civil rights  deprivation          entitling  the  claimant to  relief.    Moreover, no  matter  how          comprehensive the  "relief" obtained by the  claimant, unless the          wrong  occasioned or  threatened by  the challenged  procedure is          "significant" the alteration effected  in the overall legal rela-          tionship  out of  which the  claim arose  will be  considered too          insubstantial to satisfy the "prevailing party" test.   Thus, the          success achieved may be  ruled purely technical or de  minimis if                                                             __  _______          the civil rights violation  is either too abstract or  too remote          in prospect  for  the "relief"  obtained  in litigation  to  have          effected a material alteration in the relevant legal relationship          between the parties.            The second illustration of "technical or de minimis success" is                                                     __ _______          found in Naprstek v. City of Norwich, 433 F. Supp. 1369 (N.D.N.Y.                   ________    _______________          1977).  See  Texas Teachers, 489  U.S. at 792.   Some years  ago,                  ___  ______________          Nadeau  v. Helgemoe, 581 F.2d 275, 279  n.3 (1st Cir. 1978) (Cof-          ______     ________          fin, C.J.), cited Naprstek as a case in  which fee shifting would                            ________          have been inappropriate since "the grounds for attacking an anti-                                             _______          quated  and rarely  enforced curfew  statute  [were found]  to be          'more contrived than real.'"  Id. (quoting Naprstek, 433 F. Supp.                                        __           ________          at 1370) (emphasis added).   The Supreme Court in  Texas Teachers                                                             ______________          essentially identified Naprstek as an  example of a purely "tech-                                 ________          nical"  victory that  neither prevented  any significant  risk of                                          27                                          27          prospective wrongdoing  nor vindicated  any  genuine previous  or          contemporaneous wrong.            These  exemplars  imply  qualitative criteria  for  determining          "technical or de minimis"  success, requiring careful analysis of                        __ _______          the materiality of the relief obtained in litigation to the wrong          occasioned  the claimant.  If the  wrong "redressed" was illusory          or  contrived, even  comprehensive  "relief" may  amount to  mere          technical or de minimis success.                       __ _______            The third exemplar  cited in  Texas Teachers is  New York  City                                          ______________     ______________          Unemployed and Welfare  Council v. Brezenoff,  742 F.2d 718,  724          _______________________________    _________          n.4 (2d Cir. 1984) [hereinafter Brezenoff II], where the district                                          ____________          court denied a section 1988 award because plaintiffs' success was          considered  purely technical or de minimis.  In Brezenoff II, the                                          __ _______   _______________          constitutional violations alleged in the complaint were  compared          with the  relief obtained in  litigation.19  The  plaintiff orga-          nization and some of its members launched a broadside against the          regulatory framework through which the defendant agency allegedly          fettered access to government  buildings and restricted organiza-                                        ____________________          19Although ostensibly  Brezenoff II  compared the  wrongs alleged                                 ____________                       _______          with  the relief obtained, the net  effect of its analysis, as in          the Texas Teachers hypothetical  and Naprstek, correctly resulted              ______________                   ________          in a  qualitative comparison  between the demonstrated  wrong and          the  relief obtained.   We  submit that  the "degree  of success"          achieved,  which goes  to  the amount  of  the fee  award,  Texas                                         ______                       _____          Teachers, 489 U.S. at 790, 793; Nadeau, 581 F.2d at 281, is to be          ________                        ______          strictly distinguished from the quality of the relief obtained in                                          _______          relation  to  the  nature  and significance  of  the  established                                                                ___________          wrongdoing, which goes to the entitlement to a fee award vel non.                                                                   ___ ___                                          28                                          28          tional  activities  inside government  buildings.20   Ultimately,          the  only relief the  plaintiffs obtained was  an order requiring          that  at least  one representative  be permitted  to move  freely          about the designated IMC reception area.  A comparative  analysis          of  the unconstitutional  action and  the relief  obtained demon-          strates  that the lawsuit effected no  material alteration in the                                                 ________          relevant legal  relationship out  of which the  litigation arose.          The  remedial alteration  in the  legal relationship  between the          parties amounted  to a  nick in  the  agency's regulatory  armor.          Neither the fabric nor the design of the regulatory framework was          altered  by the ruling    hardly an indictment of agency overdra-          fting    that one member of  each organization must be allowed to          walk about the  reception area.   Thus, the  Court's citation  to          Brezenoff II illustrates that the success achieved may be consid-          ____________          ered  technical or de minimis  if the relief  effected too insub-                             __ _______                                        ____________________          20The complaint charged that  four regulations promulgated by the          New  York  City  Human  Resources  Administration  infringed  the          constitutional rights of the plaintiff organization's members "to          converse  with, distribute leaflets to, and collect contributions          from  welfare  recipients and  applicants on  the premise  of the          City's  Income  Maintenance Centers  ('IMCs')."    New York  City                                                             ______________          Unemployed  and Welfare Council  v. Brezenoff, 677  F.2d 232, 234          _______________________________     _________          (2d  Cir. 1982) [Brezenoff I].   Plaintiffs failed to demonstrate                           ___________          the  unconstitutionality of  the challenged  regulations narrowly          confining  organization activities  to the  first-floor reception          areas  of the  IMCs,  requiring a  one-day  notice of  intent  to          utilize the IMC distribution  tables, and banning solicitation of          membership fees  and contributions inside  the IMCs.   Instead, a          minor provision in  one of  the four  challenged regulations  was          ruled  unduly restrictive; that is to say, insofar as it required          all representatives  of the  plaintiff organization to  remain at                                                                  ______ __          the IMC tables.                                          29                                          29          stantial an alteration in  the overall legal relationship  out of          which the litigation arose.            The fourth exemplar offered  in Texas Teachers provides similar                                            ______________          guidance.   In Chicano Police Officer's Ass'n v. Stover, 624 F.2d                         ______________________________    ______          127,  131 (10th Cir. 1980), the Tenth Circuit ruled that nuisance          settlements do  not represent "relief"  of the sort  required for          "prevailing party" status.   Its instruction  is not unlike  that          found in a seminal First  Circuit case.  See Nadeau, 581  F.2d at                                                   ___ ______          281  (action  must not  have  been  "frivolous, unreasonable,  or          groundless").    Furthermore, it  is  in the  nature  of nuisance          settlements that the benefits tendered in settlement have less to          do with  the intrinsic merit of  the claim than with  the cost of          defending against it.21                                        ____________________          21On the other  hand, a conventional settlement of  a significant          claim may entitle  the claimant to "prevailing party" status even          in the  absence of a  final judgment.   Maher v. Gagne,  448 U.S.                                                  _____    _____          122,  129 (1980).  See Forrest v.  New York City Criminal Justice                             ___ _______     ______________________________          Agency, 549  F. Supp. 211, 213 (S.D.N.Y.  1982) (rejecting defen-          ______          dant's "nuisance settlement" defense to plaintiff's claim for a            1988 attorney  fee award:  "Both the amount and the timing of the          settlement  make clear that it was not a means employed by defen-          dants to be free of a  frivolous claim.")  (emphasis added);  see                              _  _________ _____                        ___          also Ashley  v. Atlantic Richfield Co.,  794 F.2d 128, 134  & n.9          ____ ______     ______________________          (3d Cir. 1986) ("nuisance settlement" inquiry not to be undertak-          en  as part of "prevailing  party" determination, but  as part of          "special  circumstances"  determination,  and  stating  that "the          focus should be on the  lack of merit in the  plaintiff's case").          Cf.  Dowling v.  Narragansett Capital  Corp., 735 F.  Supp. 1105,          ___  _______     ___________________________          1111  (D.R.I. 1990) (stating that one of the purposes behind Fed.          R.  Civ.  P.  9(b), particularly  in  the  context of  securities          litigation,  is to  "deter  groundless claims  that are  asserted                                      __________ ______          solely  for tactical reasons  or for purposes  of extracting nui-                                                            __________ ____          sance settlements") (emphasis added).            _____ ___________                                          30                                          30            The next guidepost in Texas Teachers is its admonition that the                                  ______________          "degree  of success" achieved  in litigation goes  to the reason-          ableness of the  amount of the award and "not to the availability                           ______          of a fee award vel non," Texas Teachers, 492 U.S.  at 793; id. at                         ___ ___   ______________                    __          790; that is, not to the "prevailing party" determination.  Texas                                                                      _____          Teachers  clearly considers "degree  of success" a nonqualitative          ________                                           ___          criterion relating exclusively  to the amount of an award, rather          than its availability.              Thus, Texas Teachers and its precursors are not prologue to the                  ______________          quantitative  "prevailing  party" test  advocated  by appellants.          Instead,  differences  in  the  degree of  success  achieved  are          reflected in the amount awarded;  whereas differences in kind, as                           ______          suggested by the Court's articulation of the residual de  minimis                                                                __  _______          success standard ("significance," "materiality"),  require quali-          tative  assessments  pertaining  principally  to  the  claimant's          eligibility  for a fee award.  Throughout its discussion in Texas                                                                      _____          Teachers,  and  particularly its  references  to  the "degree  of          ________          success" achieved in litigation,  see id. at 790, 793,  the Court                                            ___ ___          appears  to intend  a quantitative  assessment of  the claimant's          success only in relation  to the reasonableness of the  amount of          the fee awarded a "prevailing party."            The  "prevailing  party" criteria  endorsed  in Texas  Teachers                                                            _______________          inquire whether the  plaintiff (i) obtained relief  on a signifi-                                                                   ________          cant claim in litigation, (ii) effecting a material alteration in          ____                                       ________          the parties' legal relationship, (iii) that is not merely techni-                                          31                                          31          cal or de  minimis in nature.   See Texas  Teachers, 492 U.S.  at                 __  _______              ___ _______________          791-93  (emphasis  added).    Whereas  the  "degree  of  success"          achieved in litigation  may affect the amount  awarded, the third                                                 ______          criterion for  "prevailing party" status superimposes  a residual          limitary standard  on its  companion criteria designed  to ensure          that  entitlement to  an  award will  depend  on the  qualitative                ___________                                     ___________          significance of the  relief obtained, in terms of its materiality                               ______                           ___________          to the legal  relationship which occasioned  the unconstitutional          action.22            Domegan obtained a final judgment for  damages on a significant          constitutional claim.   See Carey  v. Piphus, 435  U.S. 247,  266                                  ___ _____     ______          (1978) (as  procedural due  process is  an "absolute"  right, its          denial is  actionable without proof of actual  injury, because of          "the importance to organized  society that procedural due process          be observed").23   Although the  monetary damage award  is minus-                                        ____________________          22In Brezenoff II,  for example, the decree  derailing the "walk-               ____________          about" restriction afforded relief that effected a purely techni-          cal  alteration in the legal  relationship that gave  rise to the          claims  in litigation.   The  hypothetically-limited relief  dis-          cussed in Texas Teachers brought no relief, since the requirement                    ______________          of permission to use school premises  during non-school hours was          never actuated  or threatened.   Similarly, the putative  risk of          injury in Naprstek  was "'more contrived than real[,]'"   Nadeau,                    ________                                        ______          581 F.2d at 279 n.3, and in Stover the nuisance settlement lacked                                      ______          the required nexus to a significant claim.          23Carey, 435 U.S. at 266,  has never been limited in  any Supreme            _____          Court case arising under  section 1988.  See City of Riverside v.                                                   ___ _________________          Rivera,  477 U.S.  561, 574  (1986) (plurality  op.) ("reasonable          ______          fee"  case, citing  to  Carey's "nominal  damages" discussion  in                                  _____          support  of Rivera view that  "a civil rights  plaintiff seeks to                      ______          vindicate important  civil and constitutional  rights that cannot          be valued solely in monetary terms."); id. at 594 (Rehnquist, J.,                                                 ___                                          32                                          32          cule in amount, in the eyes  of the law its remedial significance          is  substantial, as  society recognizes  the  intrinsic deterrent          effect in  judgments against public officials  who violate proce-          dural due process rights guaranteed under the Constitution.   See                                                                        ___          id.  & infra note  32; see also  Memphis Community Sch.  Dist. v.          ___    _____           ___ ____  _____________________________          Stachura, 477 U.S. 299,  308 n.11 (1986) (stating:   Carey "makes          ________                                             _____          clear  that nominal damages  . . .  are the  appropriate means of          'vindicating' rights  whose deprivation  has  not caused  actual,          provable  injury.").   Thus,  in these  circumstances, the  final          judgment awarding  nominal damages for violations  of the inmate-          plaintiff's  absolute  constitutional  right  to  procedural  due          process cannot be  characterized, in  any legitimate  qualitative          sense, as "purely technical or de minimis success."  Furthermore,                                         __ _______          since the procedural due process  deprivation in the present case          is not amenable to monetary reparation, a quantitative assessment          of the relief  obtained in litigation  would defeat the  congres-          sional intent underlying the principles governing fee shifting in          civil rights cases.            The Supreme Court  made it abundantly  clear in Texas  Teachers                                                            _______________          that  the ultimate  monitor for  the  "prevailing party"  test is          congressional intent.  Congress avowedly designed section 1988 to          enable private  citizens to vindicate civil  rights violations in                                        ____________________          dissenting)  (distinguishing Rivera  case  from "a  case such  as                                       ______          [Carey],  in  which the  deprivation  of  a constitutional  right           _____          necessarily results in only nominal pecuniary damages.").                                          33                                          33          circumstances  where  the unlikelihood  of  significant financial          recoveries would  deter their  remediation due to  the otherwise-          unaffordable litigation costs.            If  private citizens  are to  be able  to assert  their civil            rights,  and if  those who  violate the  Nation's fundamental            laws are not  to proceed  with impunity,  then citizens  must            have  the opportunity to recover what it costs them to vindi-            cate these rights in court.               . . . .               . . . [F]ee  awards are essential if the  Federal statutes            to which [  1988] applies are to  be fully enforced.  We find            that the effects of  such fee awards are ancillary  and inci-            dent to securing  compliance with  these laws,  and that  fee            awards  are an  integral  part of  the remedies  necessary to            obtain such compliance. . . .               It  is intended  that  the amount  of  fees awarded  under            [  1988] . . . not be reduced because the rights involved may            be nonpecuniary in nature. . . .               . . . If  the cost of private enforcement  actions becomes            too  great, there  will be  no private  enforcement.   If our            civil rights  laws are not  to become mere  hollow pronounce-            ments which the average citizen cannot enforce, we must main-            tain the  traditionally effective  remedy of fee  shifting in            these cases.          S. Rep. No. 1011, 94th Cong.,  2d Sess. 2, 5, 6 (1976), reprinted                                                                  _________          in  1976  U.S.C.C.A.N. 5908,  5910, 5913.    See also  Furtado v.          __                                           ___ ____  _______          Bishop, 635  F.2d  915, 919  (1st  Cir. 1980)  (emphasizing  that          ______            1988  is  meant to  finance  litigation  in cases  which  apply          (rather than create) legal  rules, and stating that "pathbreaking          holdings  that will not be enforced are of limited public value,"          adding that  "the 'principle' of  enforcement is served  by suits                                                        __          that 'merely' seek damages." (emphasis in original)).                                          34                                          34            Especially significant in the circumstances of the instant case          is  Congress' explicit  pronouncement  that "the  amount of  fees          awarded under [  1988]  . . . not  be reduced because  the rights          involved may be nonpecuniary in nature."  S. Rep. No. 1011, at 6,          reprinted in 1976  U.S.C.C.A.N. at  5913.  As  the Supreme  Court          _________ __          similarly  observed,  "Congress  enacted   1988  specifically  to          enable plaintiffs to enforce the civil rights laws even where the          amount of damages at  stake would not otherwise make  it feasible          for them to do so . . . ."  City of Riverside v. Rivera, 477 U.S.                                      _________________    ______          561, 577 (1986) (plurality op.).24                                        ____________________          24Four years before Congress  enacted the Civil Rights Attorney's          Fees  Awards Act  of  1976 (the  "Act"),  this court  reversed  a          district court order denying  a fee award to a  successful   1982          claimant.  The reversal was predicated on public policy consider-          ations which were explained as follows:               The violation  of an  important public policy  may involve            little by way of actual damages, so far as a single individu-            al is concerned,  or little  in comparison with  the cost  of            vindication,  as the case at bar illustrates.  If a defendant            may feel that the cost of litigation, and, particularly, that            the financial circumstances of an injured party may mean that            the chances of suit  being brought, or continued in  the face            of opposition, will be small, there will be little brake upon            deliberate wrongdoing.          Knight  v. Auciello,  453  F.2d 852,  853  (1st Cir.  1972)  (per          ______     ________          curiam).            These  very words were quoted four  years later on the floor of          the United States Senate by the sponsor of the Senate bill subse-          quently  enacted into law as the Act.   122 Cong. Rec. 33, 313-14          (1976) (remarks of Sen. Tunney); see 122 Cong. Rec. 33,314 (1976)                                           ___          (remarks of Sen.  Kennedy) ("[C]ivil rights cases     unlike tort          or antitrust cases     do  not provide  the prevailing  plaintiff          with a large recovery from which he can pay his lawyer."), quoted                                                                     ______          in  Rivera, 477 U.S. at  577 (plurality op.);  see also H.R. Rep.          __  ______                                     ___ ____          No. 1558, 94th Cong., 2d Sess. 9 (1976) (noting importance of fee                                          35                                          35            Unless private citizens  are to be  denied "the opportunity  to          recover what it costs  them to vindicate [their civil]  rights in          court," S. Rep. No. 1011, at 2, reprinted in 1976 U.S.C.C.A.N. at                                          _________ __          5910, contrary to  the explicit  intent of Congress  and the  in-          struction in  Texas Teachers,25 an enforceable  final judgment on                        ______________                                        ____________________          awards  in  protecting  civil  and  constitutional  rights, given          "immunity  doctrines and  special  defenses"  which "preclude  or          severely limit" availability  of damages), reprinted  in Subcomm.                                                     _________  __          on  Constitutional Rights,  Senate Comm.  on the  Judiciary, 94th          Cong., 2d Sess., Civil Rights Attorney's Fees Awards Act of 1976:          Source Book:  Legislative History, Texts, and Other Documents 217          (Comm. Print 1976) [hereinafter Source Book].                                          ______ ____          25Throughout the legislative history  of the Act, Congress recog-          nized the need  to protect civil rights claimants whose financial          circumstances  would foreclose  litigation  aimed at  vindicating          deprivations of important nonpecuniary rights.  S. Rep. No. 1011,          at  2, reprinted  in 1976  U.S.C.C.A.N. at  5910 ("In  many cases                 _________  __          arising  under our civil rights laws, the citizen who must sue to          enforce  the law  has little  or no  money with  which to  hire a          lawyer.  If private citizens are to be able to assert their civil          rights . .  . then [they]  must have  the opportunity to  recover          what  it costs them to  vindicate these rights  in court."); H.R.          Rep.  No. 1558, at 1,  reprinted in Source  Book 209 (recognizing                                 _________ __ ______  ____          that  it is  important that  "the judicial  remedy [be]  full and          complete," and stating, "[b]ecause a vast majority of the victims          of civil rights violations cannot afford legal counsel, they  are          unable  to present their cases to the courts."); Rivera, 477 U.S.                                                           ______          at 577 (plurality  op.) (quoting floor debate  remarks by members          of Congress).  The remarks of Rep. Hamilton Fish are particularly          noteworthy in the present context:                 Without the  provision of  attorney's fees, it  would be            very difficult to bring cases such as the following:            . . . .            Fourth.  Suits under [42 U.S.C.    1983 et al.] by inmates of            a penitentiary  alleging  violations of  the inmates'  rights            under the 1st, 8th, 13th, and 14th amendments.          122 Cong. Rec. 35,126 (1976) (remarks of Rep. Fish).                                          36                                          36          a  significant constitutional  claim which materially  alters the          rights and responsibilities of the parties to the legal relation-          ship  in which the claim arose cannot be deemed "purely technical          or de minimis" success simply because it vindicates a  nonpecuni-             __ _______          ary deprivation.   As we  are persuaded that  the nominal  damage          award effected  a "material alteration of  the legal relationship          of  the parties in  a manner which Congress  sought to promote in                          __  _ ______ _____ ________  ______ __ _______ __          the fee statute,"   Texas Teachers, 492 U.S. at  792-93 (emphasis          ___ ___ _______     ______________          added), it  cannot be  deemed "purely  technical  or de  minimis"                                                               __  _______          success  simply  because the plaintiff sustained no injury of the          sort traditionally considered amenable to compensatory damages.            c.  "Sole Object" Test            c.  "Sole Object" Test                 _________________            Appellants vigorously  urge, however, that no  fee award should          have been allowed, as Domegan did not sue for nominal damages but          for substantial  compensatory and  punitive damages.   Relying on          Estate of  Farrar v. Cain, 941  F.2d 1311 (5th  Cir. 1991), cert.          _________________    ____                                   ____          granted sub nom. Farrar v. Hobby,  112 S. Ct. 1159 (1992), appel-          _______ ___ ____ ______    _____          lants argue that Domegan's  inability to establish an entitlement          to compensatory or punitive damages required a determination that          the nominal damage award represented de minimis success.                                               __ _______            Appellants' contention runs counter to the formulation in Texas                                                                      _____          Teachers, 492  U.S. at  792-93, which precludes  consideration of          ________          the "degree of success" in connection with the "prevailing party"          test.   de Jesus v. Banco  Popular de Puerto Rico,  918 F.2d 232,                  ________    _____________________________                                          37                                          37          234  (1st  Cir. 1990)  (rejecting  defendant's  attempt to  limit          "prevailing  party"  status  to plaintiffs  "whose  damage awards          closely approximate  the sums sought").26   In Estate  of Farrar,                                                         _________________          941 F.2d 1311, the Fifth Circuit did not conclude and, we submit,                                               ___          could not have concluded, in light of Carey and the congressional                                                _____                                        ____________________          26We fail to  see how a material alteration of  a legal relation-          ship  is  made "non-material"  through  reference  to relief  not          obtained.  The  corollary    that a  non-material alteration does          not become material merely because it represents  the full relief          sought      was recognized  in  Waterman S.S.  Corp.  v. Maritime                                          ____________________     ________          Subsidy  Bd., 901 F.2d 1119  (D.C. Cir. 1990)  (EAJA case), where          ____________          the plaintiffs were deemed  prevailing parties on the basis  of a          district court  order remanding their case  to the administrative          agency.   The  Court  of Appeals  for  the District  of  Columbia          Circuit  reversed on the ground that the order of remand afforded          no relief on the  merits.  The court rejected the contention that          a bare remand constitutes some of  the benefit sought by a plain-          tiff whose main purpose in bringing suit was to secure a remand:            To  the extent [it is]  argue[d] that the  concept of benefit            should be proportional to what is sought, we disagree . . . .            It would  seem absurd to  grant fees  to [] a  party [seeking            only  a remand], while denying  them to a  party that differs            only in that it asked  for a more complete victory .  . . and            lost on that . . . . Proportionality would come in only after            an adequate  victory is  found and  the court  considers what            share of the fees is reimbursable.          Waterman  S.S. Corp.,  901 F.2d  at 1123;  see also  Gillespie v.          ____________________                       ___ ____  _________          Brewer, 602  F. Supp. 218, 223 (N.D.W.  Va. 1985) ("The nature or          ______          importance of an action does not vary in proportion to the amount          of monetary relief requested.").            Had Domegan sought  only nominal damages on his  procedural due          process claim, there  would be no  question, under our  analysis,          that the comprehensive relief obtained through the nominal damage          award would be sufficient for "prevailing party" status.  Compare                                                                    _______          Waterman  S.S. Corp.,  901 F.2d at  1123.  That  Domegan may have          ____________________          sought compensatory damages, but see infra nn. 28 & 30, would not                                       ___ ___ _____          detract from such a "prevailing party" finding.  Of course, as we          have  stated, adjustment in  the amount of  the fee  award may be                                           ______                    ___          appropriate  in  certain circumstances  in  response  to a  great          disparity between the  damages sought and recovered.   See, e.g.,                                                                 ___  ____          Foley v. City of Lowell, 948 F.2d 10, 19-20 (1st Cir. 1991).          _____    ______________                                          38                                          38          intent  underlying  section 1988,  that  a  nominal damage  award          invariably  constitutes de  minimis success.   Rather,  the court                                  __  _______          held:   "when  the sole  object  of a  suit is  to recover  money                             ____          damages,  the recovery of one dollar is no victory under   1988."          Estate of Farrar, 941 F.2d at 1315 (emphasis added) ("This was no          ________________          struggle over  constitutional principles.   It was a  damage suit          and surely so since plaintiffs sought nothing more.").27            Respectfully, we are  unable to  agree that a  bona fide  civil                                                           ____ ____          rights  action  converts to  a mere  "damage  suit" simply  by an          adjustment to the  ad damnum,  particularly where  the claim  can                             __ ______          (but need  not) be brought only  for nominal damages  based on an          alleged deprivation  of an "absolute" constitutional  right.  See                                                                        ___          Carey, 435 U.S. at 266; see also Stachura, 477 U.S.  at 308 n.11.          _____                   ___ ____ ________          The present cause of action arose under the United States Consti-          tution and was not  converted into a mere tort claim  for damages          simply  because Domegan  demanded  compensatory  relief.28    See                                                                        ___                                        ____________________          27The Supreme Court rejected  the Fifth Circuit's "central issue"          test in  Texas Teachers, 489 U.S.  at 791.  In  Estate of Farrar,                   ______________                         ________________          941 F.2d at 1315, the court formulated its "sole object" test.          28We  note also  that  Domegan initially  sought declaratory  and          injunctive relief  but  properly refrained  from  pursuing  those          claims  following his  release from  state custody.    Cf., e.g.,                                                                 ___  ____          Rhodes, 488 U.S.  at 4 (former inmates  not "prevailing parties,"          ______          as  case  became  moot  before entry  of  judgment  for equitable          relief); Preiser v. Newkirk, 422 U.S. 395, 402-03 (1975) (inmate-                   _______    _______          's action  for equitable relief from wrongful transfer was mooted          by retransfer of inmate  after filing of complaint; there  was no          legitimate concern that the  wrongful transfer would affect "good          time" or parole decisions, and no reasonable expectation that the          alleged wrong  would be repeated); American  Postal Workers Union                                             ______________________________          v.  Frank, No.  91-1633, slip op.  at 9  (1st Cir.  July 6, 1992)              _____                                          39                                          39          also Blanchard v.  Bergeron, 489  U.S. 87,  96 (1989)  (rejecting          ____ _________     ________          "the  notion that a  civil rights action  for damages constitutes          nothing more than a  private tort suit benefiting only  the indi-          vidual plaintiffs  whose rights were violated")  (quoting Rivera,                                                                    ______          477 U.S. at 574 (plurality op.)).            Domegan did  not deny culpability for  the disciplinary charges          which led to the AFP placement.  Instead, he claimed  that he was          wrongfully placed  and  kept on  the AFP  without procedural  due          process.  Accordingly, even  if de facto isolation and  an inade-                                          __ _____          quate  diet  had  caused  provable injury  amenable  to  monetary          compensation, Domegan  could not have established  an entitlement          to compensation  for the  substantive deprivation.29   See Carey,                                                                 ___ _____          435 U.S. at  260, 263; Rodriguez  de Quinonez v. Perez,  596 F.2d                                 ______________________    _____          486, 491 (1st Cir.), cert. denied, 444 U.S. 840 (1979).  The only                               ____  ______          wrong occasioned  Domegan was the unconstitutional  denial of his          absolute  right  to procedural  due  process.   Although  a civil          rights plaintiff  may demand compensatory damages  for mental and                                        ____________________          ("The  presence of viable damages claims . . . does not establish          a  'present case  or controversy  regarding  [equitable] relief,'          O'Shea [v. Littleton], 414 U.S. [488,] 495-96 [(1974)].").          ______     _________          29Domegan asserted  Eighth Amendment claims,  and companion  sub-          stantive due process claims, for damages allegedly sustained as a          consequence of the wrongful procedural placement on AFP and other          AFP-related  conduct by prison officials.  The jury found for the          defendants on these claims.  Under Texas Teachers, Domegan's lack                                             ______________          of  success on  those claims,  and thus  on a  large part  of his          complaint, goes to  the degree of  success and the amount  of the            1988 award, not its availability.  See Texas Teachers, 489 U.S.                                               ___ ______________          at 792.                                          40                                          40          emotional  distress  resulting  from  a  procedural  due  process          deprivation,30  see Carey, 435  U.S. at 263-64  (damages for men-                          ___ _____          tal  and emotional  distress);  Maldonado  Santiago v.  Velazquez                                          ___________________     _________          Garcia,  821 F.2d  822,  829  (1st  Cir. 1987)  (same),  monetary          ______          damages are not presumed to flow from the violation.  Carey,  435          _______     ___ ________                              _____          U.S. at 260-64;   id. at 263 ("[W]here a deprivation is justified                            ___          but procedures  are deficient,  whatever distress a  person feels          may be attributable to the  justified deprivation rather than  to          deficiencies in procedure.").31            d.  Summary            d.  Summary                _______                                        ____________________          30Domegan  demanded compensatory  damages aggregating  $50,000 in                                                    ___________          connection  with all  his federal  constitutional claims  and the                           ___                                      ___          state law  claim.  Moreover,  the special verdict  form indicates          that the  entire $350,000 punitive  damage demand related  to the                    ______          Eighth Amendment claim.          31This is in noteworthy  contrast to certain other constitutional          violations resulting in nonpecuniary injury, such as deprivations          of  the right  to  vote, for  which  presumptive damages  may  be          recoverable for the definite, though not readily measurable, harm                              ________          presumed to flow from the bare violation.  See Stachura, 477 U.S.                                                     ___ ________          at 310-11 & 311 n.14  (discussing Nixon v. Herndon, 273 U.S.  536                                            _____    _______          (1927), and other  cases); Carey, 435  U.S. at 264-65 &  265 n.22                                     _____          (emphasizing that "elements  and prerequisites for recovery"  for          one  constitutional deprivation  are not  necessarily appropriate          for another; discussing  voting rights cases); see also  Walje v.                                                         ___ ____  _____          City  of Winchester, Kentucky, 827 F.2d 10, 12-13 (6th Cir. 1987)          _____________________________          (presumed damages  available for First  Amendment deprivation not          involving  the right to vote);  City of Watseka  v. Illinois Pub.                                          _______________     _____________          Action  Council, 796  F.2d 1547, 1559  (7th Cir.  1986) (presumed          _______________          damages for deprivation of First  Amendment solicitation rights),          aff'd, 479  U.S. 1048 (1987).   But  cf. Schneider v.  Colegio de          _____                           ___  ___ _________     __________          Abogados  de Puerto  Rico,  917 F.2d  620,  639 (1st  Cir.  1990)          _________________________          (upholding  nominal damage  award in  First Amendment  case where          plaintiff  offered no proof of damages), cert. denied, 112 S. Ct.                                                   ____  ______          865 (1992).                                          41                                          41            Supreme Court analysis  on the  sufficiency of  the relief  ob-                                                                ______          tained  in  litigation  invariably  centers on  its  capacity  to          redress  real wrongdoing.  The Supreme Court has never ruled (nor          adverted with approval to a case which has held) an award of fees          improper under  section 1988  merely because the  monetary relief          obtained  in  litigation was  de minimis  in  amount.   All cases                                        __ _______          adverted to in Texas Teachers involved circumstances in which the                         ______________          wrong established  was  more illusory  than real,  or the  relief          _____ ___________                                          ______          obtained in  litigation was so  insubstantial in relation  to the          ________          relevant legal relationship as to be considered "purely technical          or de minimis."   Thus, "prevailing party" status in  the instant             __ _______          case was neither precluded  by the inability to obtain  a compen-          satory damage award on  the procedural due process claim,  nor by          the failure  to establish  liability on  other claims,  which are          matters appropriately considered  in assessing the reasonableness          of the fee award.  See Texas Teachers, 489 U.S. at 793; de Jesus,                             ___ ______________                   __ _____          918 F.2d at 234 (citing Texas Teachers).                                    ______________            Were  we to conclude  that a  nominal damage  award in  a civil          rights action based on a nonpecuniary deprivation represents mere          de  minimis success, we would rule out fee shifting under section          __  _______          1988 notwithstanding  that the claimant  recovers an  enforceable          judgment  on  a significant  constitutional  claim.   We  find no          warrant in  Supreme Court caselaw for  doing so.  See  Carey, 435                                                            ___  _____          U.S.  at 266  (procedural due  process deprivation  is actionable          without  proof  of injury  because  the right  to  procedural due                                          42                                          42          process is "absolute,"  and "because of  the importance to  orga-          nized society  that procedural due process  be observed.");32 see                                                                        ___          also  Stachura, 477 U.S. at 380 n.11 (nominal damage award appro-          ____  ________          priate to vindicate rights  whose infringement causes no "actual"          injury).   Thus, we do  not understand Texas  Teachers to condone                                                 _______________          (let  alone require) disentitlement  to "prevailing party" status          merely  because the  final judgment  redressing a  procedural due          process violation awards only nominal damages.            A  nominal damage award based on a denial of the predeprivation          process  due the  claimant  whose culpability  is later  conceded          presents a tantalizing candidate for characterization as "techni-          cal or de  minimis success."  Yet to  do so would be  to conclude                 __  _______          that the  constitutional violation  itself was de  minimis, which                                                         __  _______          cannot be  done under current  Supreme Court caselaw,  see, e.g.,                                                                 ___  ____          Carey, 435 U.S.  at 266, our own  precedent, see, e.g., Perez  v.          _____                                        ___  ____  _____          University of Puerto Rico, 600 F.2d 1, 2 (1st Cir.  1979), or the          _________________________          congressional  intent  underlying  section 1988.    We  therefore          conclude that "prevailing party"  status is appropriate where the          claimant establishes a significant procedural  due process depri-          vation and  obtains an  enforceable nominal damage  award against          the responsible public officials.                                        ____________________          32Significantly,  the Court  noted in  Carey that  "the potential                                                 _____          liability of   1983 defendants for attorney's fees . . . provides          additional     and by no means  inconsequential    assurance that          agents  of the  State will  not  deliberately ignore  due process          rights."  Carey, 435 U.S. at 257 n.11.                    _____                                          43                                          43            2.  Special Circumstances            2.  Special Circumstances                _____________________            Appellants  argue that  Domegan is  entitled  to no  fee award,          because he allegedly exhibited an "inexcusable reaching for fees"          by submitting an inflated fee application.  See Lewis v. Kendric-                                                      ___ _____    ________          k, 944  F.2d  949, 958  (1st  Cir. 1991)  (on  rehearing).33   In          _          Lewis,  we denied a fee award where the application reflected (1)          _____          no "good faith" effort to exclude excessive, redundant, or other-          wise unnecessary hours, (2) no reduction for time spent on unsuc-          cessful claims, and (3)  no allowance for the limited  "degree of          success"  achieved by the plaintiff.    Id. at 957-58 (relying on                                                  ___          Hensley  v. Eckerhart,  461 U.S. 424,  434, 436 (1983)).   On the          _______     _________          other hand,  the present  fee request reflects  reasonable regard          for the concerns expressed in Lewis, as evidenced in part  by the                                        _____          fact that the number of hours for which compensation was request-          ed  approximates only one third  of the hours  counsel devoted to          the litigation.   These  self-imposed, pre-application cuts  sub-          stantiallyanticipated                              virtuallyallofappellants'                                                      presentcontentions.34                                        ____________________          33As the present claim is raised for the first time on appeal, we          review for "plain error"  indicative of "a 'clear  miscarriage of          justice'  . .  . ."   Playboy  Enterprises, Inc. v.  Public Serv.                                __________________________     ____________          Comm'n., 906 F.2d 25, 40 (1st Cir.) (quoting Brown v. Trustees of          _______                                      _____    ___________          Boston  Univ., 891 F.2d 337,  359 (1st Cir.  1989), cert. denied,          _____________                                       ____  ______          111 S. Ct. 388 (1990)).          34An examination  of  certain  objections  raised  by  appellants          demonstrates  that  the  fee  application was  prepared  with  no          purpose to inflate  fees.  For instance,  appellants suggest that          Procter &  Hoar's over-staffing  and personnel changes  caused "a          spate of conferences, cross-conferences, drafts, revisions, edits          of other people's drafts and revisions, etc., for which plaintiff          sought  compensation."  Our review  of the application allays any                                          44                                          44            Appellants   contend  that  the  fee  application  inadequately          reflected the limited "degree of success" achieved in litigation,          as demonstrated by the sizeable reduction imposed by the district          court, and, therefore, that  the total compensation requested was                                        ____________________          such concerns.   Approximately 267 of the 352 time entries in the          fee application pertain to services performed by the lead partner          and the  primary  associate who  took  charge of  the  litigation          several  years after Procter & Hoar was appointed.  Moreover, the          application pares the  total hours billed, in  recognition of the          fact  that "some  of  the time  billed  was redundant,  owing  to          unavoidable  changes of staffing on  the case, or  was less effi-          cient than it might have been because some assignments were given          in the first instance to law clerks and interns."            Appellants further  contend that the fee  request was inflated,          because, they  say, virtually the  entire trial was  dedicated to          litigating  the unsuccessful  claims, lead  trial counsel  sought          compensation  for more than ten hours daily even though the trial          was conducted on a half-day basis, and compensation was requested          for  two trial attorneys.   Nevertheless, it was  not improper to          request compensation for  the trial time  spent securing the  due          process  nominal damage  award.   In recognition  of the  lack of          success on the other claims,  compensation was requested for only          one third of the trial time.  Contrary to appellants' suggestion,          moreover, we  do not find  the pretrial discovery  entries exces-          sive, nor, for the most part, inclusive of work for which compen-          sation should not have been sought.  Virtually all of the discov-          ery services for which  compensation was requested (including the          deposition  of a  Department of  Correction nutritionist  and the          interrogatories  propounded  to victorious  defendants)  were not          plainly unrelated to the successful due process claim, in support          of  which evidence  was  needed to  establish  the existence  and          nature of the due process deprivation.  See infra note 40.                                    ___________   ___ _____            Appellants point to a handful of "mixed" entries  pertaining to          amendments  to the  complaint which  are not  compensable because          they  related  to unsuccessful  claims  (even  though each  entry          included some compensable services as  well).  Likewise, a number          of other  "mixed" entries relating to  unsuccessful claims should          not  have been  included in the  fee application.   But for these          minor  exceptions,  however,  the  fee application  accorded  due          regard to  the requirement  that compensation  not be  sought for          services rendered on  unsuccessful claims.   In all fairness,  we          cannot  conclude  that  these  lapses  in  precision  fee-cutting          approached those involved  in Lewis, such that the  present award                                        _____          again should be slashed under the "special circumstances" test.                                          45                                          45          inflated.  Our review discloses, however, that appellants neither          identify any substantial failure  of "reasonable compliance  with          the judicial pronouncements" relating to fee requests, Lewis, 944                                                                 _____          F.2d at 958  (on rehearing),  nor challenge the  veracity of  the          time sheets or  the supporting affidavits.   Although we conclude          that further  reductions are required,  we discern  no basis  for          questioning  the  bona fides  of  the fee  application  under the                            ____ _____          "special circumstances" exception.            3.  Size of the Award            3.  Size of the Award                _________________            The fee application requested  an award totaling $86,016.80 for          legal services  performed during the five-year  period spanned by          the  litigation.  The district  court found "the  rates and hours          charged for  various aspects  of the  case  to be  reasonable,"35                                        ____________________          35The  only appellate  challenge to  the reasonableness  of these          hourly rates asserts that the district court was required to com-          pensate counsel  at different  rates for different  services, but          instead  allowed a flat hourly  rate for all  legal services per-          formed by the same  attorney.  We do not accept Domegan's conten-          tion that appellants  waived their right  to contest the  reason-                                ______          ableness of  the  fee award  on  this basis  by reason  of  their          failure to present evidence  as to reasonable hourly rates.   Cf.                                                                        ___          Blum v. Stenson, 465 U.S. 886, 892 n.5 (1984) (failure to present          ____    _______          evidence supporting challenge to the "accuracy and reasonableness          of the hours  charged").  Nevertheless, their failure  to present          evidence  that the flat rates approved by the district court were          unreasonable means that appellants  cannot prevail on their "flat                                                     _______          rate" challenge.   Since the  "bottom line" is  a reasonable  fee          award, their  "flat rate" challenge cannot  succeed unless appel-          lants show that the flat rates allowed by the district court were          not  reasonable average  rates for  the types  of legal  services          determined  compensable by the district  court.  We  do not think          appellants  can  manage  their burden  without  establishing  the          hourly rates  which they would  propose be used  in place of  the          flat  rates approved by the  district court, especially since the                                          46                                          46          but halved the request  to reflect the limited degree  of success          achieved in litigation.   See Hensley,  461 U.S. at 434-37.   The                                    ___ _______          $41,441.55 award  purportedly allowed  compensation only  for the          388.5  hours  "explicitly spent  on  the due  process  issue, the          summary judgment motion, and the [interlocutory] appeal . . . ."            We  review the  reasonableness  of the  attorney fee  award for          abuse of discretion,  finding an abuse  "'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  v. Mydas Assoc.,  Inc., 943 F.2d  139, 143 (1st                    ______     ___________________          Cir. 1991)  (quoting Independent Oil  & Chem. Workers  of Quincy,                               ____________________________________________          Inc. v.  Proctor & Gamble Mfg.  Co., 864 F.2d 927,  929 (1st Cir.          ____     __________________________          1988)).  "District courts have  discretion when awarding fees and          expenses under 42 U.S.C.    1988, [Hensley], and appellate courts                                             _______          accord deference to  the exercise of that discretion."  Grendel's                                                                  _________                                        ____________________          approved rates do not  appear excessive on their face.   Although          appellants contend that flat rates  are impermissible as a matter          of law, we have  never indicated as much, see infra p. 52; nor do                                                    ___ _____          we believe it necessary to reach the issue on the present record.          See  Foley v. City  of Lowell, Mass.,  948 F.2d 10,  21 (1st Cir.          ___  _____    ______________________          1991)  (Where "a fee target  has failed to  offer either counter-          vailing evidence  or persuasive  argumentation in support  of its          position, we do  not think it  is the  court's job []  to do  the          target's homework . . . .").            We  likewise reject  the contention  that appellants  failed to          preserve their challenges to  particular hours billed, by failing                                                   _____          to present  countervailing evidence  below.  These  challenges             founded primarily  on caselaw,  the insufficiency of  the billing          entries,  and argumentation  based  on the  circumstances in  the          present case    did not depend on evidentiary support.                                          47                                          47          Den,  Inc. v.  Larkin, 749 F.2d  945, 950  (1st Cir.  1984).  The          __________     ______          district court enjoys  broad discretion in setting the  amount of          an attorney fee award.  de Jesus v. Banco Popular de Puerto Rico,                                  ________    ____________________________          951 F.2d 3, 5  (1st Cir. 1991) [hereinafter de Jesus  II]; United                                                      ____________   ______          States  v. Metropolitan Dist. Comm'n,  847 F.2d 12,  14 (1st Cir.          ______     _________________________          1988).    On an "abuse  of discretion" review, the  basis for the          fee  award is to  be reviewed carefully, and  we must ensure that          the amount is reasonable, but "we normally prefer to defer to any          thoughtful rationale  and decision developed by a trial court and          to  avoid extensive second guessing."  Grendel's Den, 749 F.2d at                                                 _____________          950.            a.  Disproportion            a.  Disproportion                _____________            Appellants  contend  that the  attorney  fee  award is  grossly          disproportionate to the one  dollar damage award, particularly in          light  of the  damages  demanded.   The  amount of  the  monetary          recovery is "certainly  [a] relevant" factor to  be considered in          setting the  size of  an attorney  fee, Rivera,  477 U.S.  at 574                                                  ______          (plurality  op.); Foley,  948 F.2d  at 19-20  (amount of  damages                            _____          relevant  to determination of reasonable fee;  fee may be reduced          when  amount of damages sought is large but recovery small); Home                                                                       ____          Placement Serv., Inc. v. Providence  Journal Co., 819 F.2d  1199,          _____________________    _______________________          1210  (1st Cir. 1987) ("recovery  of only nominal  damages can be          cause for reducing a fee award if the litigation is not otherwise          significant") (Clayton Act  case); Perez, 600 F.2d at  2 (nominal                                             _____                                          48                                          48          damage award one factor that may affect amount of fee).            Nevertheless,  disproportion  alone  does not  render  an award          unreasonable, Rivera, 477 U.S. at 574 (plurality op.); id. at 585                        ______                                   ___          (Powell,  J., concurring);  Foley v. City  of Lowell,  Mass., 948                                      _____    _______________________          F.2d 10, 20 (1st  Cir. 1991 )  (reasonable fee may exceed  damage          recovery  "several  times  over"),  and a  judgment  for  nominal          damages  may warrant a substantial  fee award.   Aubin v. Fudala,                                                           _____    ______          782 F.2d 287, 290-91 (1st Cir. 1986)  (suggesting intrinsic value          in "simple  declaration of  violations of federal  law."); Perez,                                                                     _____          600  F.2d at 2 n.2 (policy  of awarding nominal fees for recovery          of  nominal damages would "handicap those seeking to assert civil          rights  to the same extent as denying fees altogether"); see also                                                                   ___ ____          Ruggiero v. Krzeminski, 928 F.2d 558, 564 (2d Cir. 1991) (uphold-          ________    __________          ing $12,833.34 fee based on $1.00 damage award); Allen v. Higgin-                                                           _____    _______          s, 902 F.2d  682, 684-85 (8th  Cir. 1990)  ($10,000 fee based  on          _          $1.00  damage  award); Home  Placement  Serv., 819  F.2d  at 1212                                 ______________________          (awarding $16,989  for portion of litigation  relating to nominal          damage award); McCann  v. Coughlin,  698 F.2d 112,  129 (2d  Cir.                         ______     ________          1983)  (that  successful  procedural  due  process  claimant  who          recovered  $1.00 damage award did not warrant reduction in attor-          ney fee award of almost $50,000).36                                        ____________________          36Of  course, the "degree of success" achieved in litigation is a          "critical"  factor in fixing the amount of an award under section          1988.  Texas Teachers,  489 U.S. at 789-90  (discussing Hensley).                 ______________                                   _______          Appellants  do  not contend,  however,  that  the district  court          failed  to reduce the fee request to reflect the recovery of only                                                                       ____          a  nominal damage award on  the procedural due  process claim and                                          49                                          49                      b.  Summary Judgment            b.  Summary Judgment                ________________            Appellants  argue  that  the  district court  should  not  have          allowed  compensation for  all legal  services attributed  to the          summary  judgment proceedings,  since a significant  portion went          toward the unsuccessful Eighth Amendment claims, which appellants          assert  were  wholly distinct  from  the  successful due  process          claim.  See Hensley,  461 U.S. at 434-35 (no  compensation allow-                  ___ _______          able for services on unsuccessful claims segregable from success-          ful ones); Wojtkowski v. Cade, 725 F.2d  127, 130 (1st Cir. 1984)                     __________    ____          (same).  The district  court implicitly determined, however, that          the  due process  and  Eighth Amendment  claims were  interrelat-          ed.37   As its  interrelatedness finding is  adequately supported                                        ____________________          the lack of success  realized on the other claims  in litigation.          Rather, even though the  court reduced the number  of compensable          hours from  808.3 to 388.5  for these purposes,  appellants still                                          _____          contend  that  the "extraordinarily  high  award"  constituted an          abuse of discretion.  As we find no abuse of the district court's          broad discretion     based on  the disproportion between  the fee          and damage awards     see Nydam v. Lennerton,  948 F.2d 808,  813                                ___ _____    _________          (1st Cir. 1991) (appellate court will not interfere "'[w]here . .          . [a]  district court [has] carefully weighed the correct factors          and  arrived at a  result within a  supportable range .  . . .'")          (quoting  Wojtkowski v. Cade, 725 F.2d 127, 131 (1st Cir. 1984)),                    __________    ____          we turn to appellants' demands for further reductions relating to          fees for particular services.          37After  observing that  "a one  dollar award  constitutes rather          less  than  a resounding  victory,"  the  district court  opinion          quoted the following passage from Hensley:                                            _______            If .  . . a  plaintiff has  achieved only partial  or limited            success,  the product  of  hours reasonably  expended on  the            litigation as a whole  times a reasonable hourly rate  may be            an excessive amount.  This will be true even where the plain-            tiff's claims were interrelated,  nonfrivolous, and raised in                               ____________                                          50                                          50          in the  record,38 we see no  abuse of discretion in  the district          court decision to forego  the request to separate the  time spent          on interrelated claims where it would have been largely impracti-          cable to do so.  Aubin v. Fudala, 821 F.2d 45, 47 (1st Cir. 1987)                           _____    ______          [hereinafter Aubin II]; see Hensley, 461 U.S. at 435-36 (focusing                       ________   ___ _______          on overall success when different claims are legally or factually                                                               __          intertwined); Nydam  v. Lennerton,  948 F.2d  808, 812 (1st  Cir.                        _____     _________          1991)  (no abuse  of discretion  where district  court determined                                        ____________________            good faith.          Hensley, 461  U.S. at 436 (emphasis  added).  The  section of the          _______          majority opinion from  which the quoted excerpt is taken provides          instruction on the proper approach  to fee applications for legal          services on interrelated, nonsegregable claims where the claimant          achieved limited success in litigation.            We think  it clear, therefore,  that the district  court recog-          nized the  interrelatedness of these  claims.  The  court awarded          compensation for "only  those hours explicitly  spent on the  due          process issue, the summary  judgment motion, and the [defendants'          interlocutory]  appeal (including research  on qualified immunity          issues)  . .  . ."   As we  understand the  district court award,          since Domegan's "success [on  the interrelated claims] may fairly          be characterized  as 'limited,'" attorney fees  were awarded only          for the legal  services in connection  with the summary  judgment          litigation  and the  interlocutory appeal.   Additionally,  legal          services specifically devoted to the due process claim (i.e., any          such  services  which could  be  separated  out) were  determined                                _____          compensable,  as that was the  only claim on  which Domegan "gar-          nered [any] success."  See also infra n.40.                                 ___ ____ _____          38For example, even  though the due process  and Eighth Amendment          claims differed, the "Memorandum in Support of Plaintiff's Motion          for  Partial Summary Judgment" reveals that they arose out of the          same circumstances, and both concerned Domegan's placement on the          AFP.  Although not all material  facts are common to both claims,          the  core facts are common.  Moreover, both claims were dependent          on the  factual investigation  and legal research  underlying the          portion of the summary judgment memorandum relating to the direct          and supervisory liability of the individual appellants.                                          51                                          51          that successful and unsuccessful claims arose from core of common          facts);  Fishman v.  Clancy, 763  F.2d 485,  491 (1st  Cir. 1985)                   _______     ______          (same); see also Nydam, 948 F.2d at 813 (appellate court will not                  ___ ____ _____          interfere "'[w]here  . .  .  [a] district  court [has]  carefully          weighed  the correct  factors and  arrived at  a result  within a          supportable range .  . .  .'") (quoting Wojtkowski,  725 F.2d  at                                                  __________          131).            Appellants  point to  certain time-sheet entries  which reflect          services  devoted to  the successful  "due process" claim  or the                                                                     __          unsuccessful  Eighth Amendment  claim.39   Of course,  the inter-          relatedness  finding is not undermined simply because it may have                       _______          been  practicable  to discern  some further,  partial distinction                                                        _______          between the  services  rendered on  successful  and  unsuccessful          claims.   See  Wagenmann v.  Adams, 829  F.2d 196, 225  (1st Cir.                    ___  _________     _____          1987) (upholding interrelatedness finding, noting clearly segreg-          able  item on billing sheets); see also  Aubin II, 821 F.2d at 47                                         ___ ____  ________          ("It  might not have been  practical for the  lawyers to allocate          each  hour among  the several  factually related  legal claims.")          ____          (emphasis added).   For example,  a billing  entry which  distin-          guishes  between  legal research  on  different  claims does  not          necessarily enable a clear allocation of fees where the different                                        ____________________          39Only one of these time-sheet entries was approved in connection          with  the fee award for  summary judgment services,  an entry for          3.8 hours spent on  the due process and Eighth  Amendment claims,          and the  facts section of Domegan's  summary judgment memorandum.          ___ ___  _____          We adjust for this entry  (# 111) as indicated below.   See infra                                                                  ___ _____          note 44.                                            52                                          52          claims are factually intertwined.  See,  e.g., supra note 39.  As                     _________               ___   ____  _____          these  summary judgment  claims were  interrelated,40 appellants'          complaint that compensation should  not have been allowed because          the time  entries might  have distinguished more  sharply between          the  due process and Eighth Amendment claims is unavailing in the          present circumstances.  See Rivera, 477 U.S. at 570 n.4 (plurali-                                  ___ ______          ty op.)  ("[W]hile  it is  true that  some of  the disputed  time          records do not identify the precise claims worked on at the time,          we  find this lapse unimportant, in light of the District Court's          finding that all of respondents' claims were interrelated.").            The  award of  fees for  professional  services in  the summary          judgment  proceedings must also be  viewed in the  context of the          award as  a whole.    The district  court awarded  fees only  for          pretrial summary  judgment  services, the  interlocutory  summary          judgment appeal, and the services specifically related to the due                                        ____________________          40Appellants urge  that these claims were  entirely separate, due          to the  fact that the Eighth Amendment  claim concerned so-called          "substantive conditions of confinement" while on the AFP, whereas          the  due  process  claim  dealt with  "procedural  issues  before                                                                     ______          implementation  of the AFP."  However, as Domegan points out, one          of the  summary judgment disputes  turned on whether  due process          protection  attached,  which  depended  on   whether  appellants'          actions constituted punishment as  distinguished from mere admin-          istrative  restraint.   The due  process portion  of the  summary          judgment  memorandum therefore focused  in part on  the nature of          the deprivations caused by the  AFP placement, and the lack  of a          sufficient   administrative   rationale  for   the  deprivations.          ("Nutritionally deficient  and unvaried  meals in no  way advance          the interest in preventing  health hazards caused by  thrown food          and waste.").   Thus, this section of  the memorandum did rely on          evidence as to the conditions of confinement while Domegan was on          the AFP.                                          53                                          53          process claim.  Consequently, due to  the interrelatedness of the          Eighth  Amendment and due  process claims, as  a practical matter          essentially no fee award was made for virtually all legal servic-          es devoted to pretrial  discovery and to the trial  itself, since          such  entries  did  not  distinguish among  interrelated  claims.          Furthermore, with  the  exception  of  the time  devoted  to  the          summary   judgment  proceedings  and  the  related  interlocutory          appeal, the  district court  rationale ensured that  counsel were          penalized for any failure  to segregate successful and unsuccess-          ful claims on  their billing  sheets.  Thus,  the district  court          rationale affords  counsel a  substantial inducement  to maintain          detailed time  records, wherever practicable  clearly delineating          the particular  claims and  issues  to which  the legal  services          related.   See Hensley, 461  U.S. at 437  (billing records should                     ___ _______          enable  court to  identify distinct  claims); see  also Grendel's                                                        ___  ____ _________          Den, 749 F.2d  at 952 (substantial  fee reduction appropriate  if          ___          detailed contemporaneous time records  not kept); Wojtkowski, 725          ________                                          __________          F.2d at 130 (billing sheets should distinguish between particular          issues); Nadeau, 581 F.2d at 279 (same).                   ______            Careful review  reassures us  that the district  court tailored          its total  award to reflect  the value of  the legal  services in          light of  the time reasonably required for  their performance and                                          54                                          54          the degree of  success achieved.41   Gabriele v. Southworth,  712                                               ________    __________          F.2d 1505, 1507 (1st Cir. 1983) ("Nor should the judge  become so          deluged with details  that [s]he is unable to view the claims for          fees  in perspective.    [S]he must  retain  a sense  of  overall          proportion.").  There  was no abuse of  discretion in determining          the number of compensable hours.  See United States v. Metropoli-                                            ___ _____________    __________          tan Dist. Comm'n, 847 F.2d 12, 17 (1st  Cir. 1988) (separation of          ________________          "wheat  from chaff" in fee  award context is,  "within broad lim-          its," a matter for the district court's discretion).42            c.Uniform Hourly Rates            c.Uniform Hourly Rates              ____________________                                        ____________________          41In response  to  the limited  "degree of  success" achieved  in          litigation,  the  district court  halved  the  fee request,  even                                                             _______          though the request sought  compensation only for about one  third          the total time counsel devoted to  the case.  Cf. Home  Placement                                                        ___ _______________          Serv.,  819  F.2d at  1211-12 (awarding  50%  of fees  related to          _____          portion of litigation in which nominal damages were obtained).          42Appellants argue that the district court should have disallowed          fees for  legal services on  the unsuccessful due  process claims          against  their codefendants.    Yet appellants  propose no  prac-          ticable method for doing so.  See Cobb v. Miller,  818 F.2d 1227,                                        ___ ____    ______          1233-34  (5th Cir.  1987)  (reversing  fee-reduction order  where          plaintiff  succeeded  on but  one  of  three interrelated  claims          against different defendants:  interrelated claims did "not arise          from a course  of conduct  that is easily  differentiated on  the          basis of each  defendant.").  The only significant  summary judg-          ment services which might  conceivably have been distinguished on          such  a basis would have been legal research and drafting related          to the supervisory liability  of the appellants, as distinguished                                           ___ __________          from their victorious  codefendants.  As  for any other  services          which  might have been distinguished on the basis of the particu-          lar defendant  involved, (e.g., pretrial discovery), the district                                    ____          court allowed no compensation.  In sum, appellants have failed to          demonstrate  that the  fee  award includes  compensation for  any          significant, readily-segregable services specifically relating to          the victorious codefendants.                                          55                                          55            Appellants assert error in  the district court's approval  of a          uniform  hourly rate  for all  legal  services performed  by each          attorney regardless of the nature of the services rendered (e.g.,          research, conferencing, court appearances).  In Maceira v. Pagan,                                                          _______    _____          698 F.2d 38, 41 (1st  Cir. 1983), we noted that, "while  Miles v.                                                                   _____          Sampson, [675 F.2d 5, 9 (1st Cir. 1982),] upon which [appellants]          _______          rel[y], indicates the importance of using more than one rate when          appropriate, it does not hold that differential  rates are always                                                                     ______          required."  Maceira, 698  F.2d at 41 (citing cases)  (emphasis in                      _______          original).  Although it would have been within the  bounds of the          district court's  broad discretion  to assign  differential rates          for  various  legal services,  appellants  proposed  no alternate          rates and submitted no evidence that the rates charged by Procter          & Hoar  were not reasonable.   We find no abuse  of discretion in          the decision to forego differential rates in these circumstances.            d.Excessive Hours            d.Excessive Hours              _______________            Appellants contend that the 247 hours attributed to the summary          judgment litigation, and the 152  hours to the related interlocu-          tory appeal, were excessive.  The hours determined compensable by          the district court do  not appear excessive on their face  and no          particular rationale is assigned in support of  the allegation of          excessiveness as  it relates to the  summary judgment litigation.          We  recognize  that the  district  court was  better  situated to          evaluate  whether the time spent on these services was reasonably                                          56                                          56          necessary.  See Foley,  948 F.2d at 19 ("[A]n  appellate tribunal                      ___ _____          lacks  the means to replicate the trial court's first-hand knowl-          edge of the litigation and its nuances."); Wagenmann, 829 F.2d at                                                     _________          224-25 (district court  "has far greater  familiarity than do  we          with  how much  was done,  who  did it,  and how  effectively the          result  was accomplished");  Chalmers  v. Los  Angeles, 796  F.2d                                       ________     ____________          1205,  1211 (9th Cir.  1986) ("The district court  is in the best          position to determine in  the first instance the number  of hours          reasonably expended in furtherance of the successful aspects of a          litigation.").    We  therefore  defer to  the  district  court's          informed judgment that  the hours devoted to "various  aspects of          the case" were reasonably efficient and necessary.43            e.Challenges to Particular Time-sheet Entries            e.Challenges to Particular Time-sheet Entries              ___________________________________________                                        ____________________          43Appellants attempt to assign  grounds for their contention that          too much time was spent on the interlocutory appeal; we find none          convincing.  First, their contention  that the request was exces-          sive because Procter &  Hoar did not need to compile the appendix          for  the  interlocutory  appeal  (for which  the  district  court          allowed 1.5 hours of  compensable time) is an insufficient  basis          for finding that  other, necessary interlocutory  appeal services          (research and drafting) did  not reasonably require as  much time          as  claimed.   Second, we  find particularly  unconvincing appel-          lants' overall plaint  of excessiveness, as well as  their direct          attack on the  services performed by one attorney whose (minimal)          time  was spent  largely  in researching  interlocutory appellate          jurisdiction,  especially  since  appellants  had   attempted  to          present appellate  claims not  subject  to interlocutory  appeal.          See  infra, pp.  54-55.   The  additional  time reasonably  spent          ___  _____          successfully  resisting appellants'  attempt to  assert appellate          jurisdiction where  none existed is fully  compensable.  Although          appellants advance several other objections to the reasonableness          of the  hours determined  compensable by the  district court,  we          find none of sufficient moment to warrant discussion.                                          57                                          57            Appellants contend that the fee award, contrary to the district          court's  own  criteria,  includes compensation  for  services not          devoted  to the  summary judgment  litigation, the  interlocutory          appeal, or the procedural due process claim.  Appellants  contest          the allowance  of compensation  based on certain  "mixed" entries          which appear to combine hours devoted to compensable  and noncom-          pensable services.              Our concerns about ambiguous time-sheet entries are well recog-          nized.  See, e.g., Furtado v. Bishop, 635 F.2d 915, 922 (1st Cir.                  ___  ____  _______    ______          1980) (disallowing  compensation for  "Conf[erence] G.  Sousa and          travel,"  since  the entry  did not  indicate  the time  spent in          conference and "we  are disinclined to compensate  an attorney at          professional rates for  travel time .  . . .").   Accordingly, we          have  culled  out, for  disallowance  on  these grounds,  various          "mixed" entries  to which  appellants have called  our attention,          totaling $3,502.60.44    In  other respects,  we  find  that  the          district  court's handling  of various  "mixed" time  entries was          well within its broad discretion.  Metropolitan Dist. Comm'n, 874                                             _________________________          F.2d  at  17 (separation  of  "wheat from  chaff,"  "within broad          limits," is within the discretion of the district court).            Appellants  challenge  an  apparent allowance  of  compensation          based  on "at  least  three"  entries  for research  relating  to                                        ____________________          44Thus, all compensation is denied for the services identified in          the following entries:  ##  36, 69, 97, 111, 124, 182,  190, 192,          195, 206, and 207; totaling 37.8 hours.                                          58                                          58          interlocutory appellate review.  As the defendant state officials          unquestionably were entitled to  an interlocutory appeal from the          denial of their motion for  partial summary judgment on qualified          immunity grounds, appellants insist  that no interlocutory appeal          research was necessary.  We remind appellants that there were two          other  appellate claims  which they  had no  right to  present on          interlocutory  appeal.  See Domegan v. Fair, 859 F.2d 1059, 1061-                                  ___ _______    ____          62 (1st Cir. 1988)  (no interlocutory appeal permitted on  two of          appellants'  three  claims).   We have  been  given no  reason to          believe that the services rendered in connection with these three          entries were unnecessary.45            f.Computational Errors            f.Computational Errors              ____________________            Finally,  appellants assign  errors in  the computation  of the          award,  which require that the  award be reduced  by $165.60 (2.4          hours  at  $69.00 per  hour); $295.00  (5.9  hours at  $50.00 per          hour);46 $484.50  (5.1 hours at  $95.00 per hour),  and increased                                        ____________________          45A fourth billing entry involved "[r]esearch on appealability of          qualified  immunity ruling."  The 1.7 hours billed for this entry          seem entirely reasonable, as  does the .3  hour entry for a  con-          ference  on  the motion  to dismiss  the  appeal and  research on          appellate jurisdiction.          46The district  court apparently  allowed 8.3 hours  for services          relating  to liability  issues  at the  pretrial discovery  stage          which had  no connection  with the interlocutory  appeal or  with          qualified immunity.  The award is reduced accordingly.                                            59                                          59          by $90.00 (1 hour at $90.00) and $40.00 (.4 hours at $100.00).47-            The  attorney fee award is reduced to $37,123.85.  The district            _________________________________________________  ____________          court judgment is affirmed, as modified; costs to appellee.          __________________________________________________________                               - Concurrence Follows -                               - Concurrence Follows -                                 ___________________                                        ____________________          47The  district court allowed 55.0  hours at $95.00  per hour for          services  by Attorney Bagger.   As appellants point  out, the fee          application claimed that Ms. Bagger spent 49.1 hours of compensa-          ble time  (on summary judgment  and the interlocutory  appeal) at          the  $95.00 hourly rate.  Our review  of the fee request and time          sheets  indicates that she actually devoted  49.9 hours, but that          other minor  miscalculations necessitate the  net adjustment  set          forth in the text.                                          60                                          60            CAMPBELL, Senior Circuit Judge  (Concurring).  I join  in Judge            CAMPBELL, Senior Circuit Judge  (Concurring)                      ____________________          Cyr's exceedingly thoughtful opinion.  Even if one were not fully          persuaded, the result is dictated  by this Circuit's prior prece-          dent and our panel is bound by stare decisis.   The Supreme Court          will  presumably  decide the  matter  definitively  next term  in          Farrar v. Hobby.          ______    _____                                          61                                          61
