

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

                                             

No. 97-1128

                      DENISE COUTIN, ET AL.,

                     Plaintiffs, Appellants,

                                v.

                YOUNG &amp; RUBICAM PUERTO RICO, INC.,

                       Defendant, Appellee.

                                             

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

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

                                             

                              Before

                      Selya, Circuit Judge,                                                    

                  Gibson,* Senior Circuit Judge,                                                         

                    and Lynch, Circuit Judge.                                                      

                                             

     Jorge Miguel Suro Ballester for appellants.                                          
     Etienne Totti  Del Valle, with  whom Totti &amp;  Rodriguez Diaz                                                                           
was on brief, for appellee.

                                             

                        September 8, 1997

                                             

               
*Hon.   John  R.  Gibson,  of  the  Eighth  Circuit,  sitting  by
designation.

          SELYA,  Circuit  Judge.     Plaintiff-appellant  Denise                    SELYA,  Circuit  Judge.                                          

Coutin,1  flush   with  victory   after  winning   an  employment

discrimination suit, encountered disappointment when the district

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

she believed  herself entitled  under the Fees  Act, 42  U.S.C.  

1988  (1994).    Coutin  appeals.   Because  the  district  court

employed   a  flawed  methodology  and  relied  on  impermissible

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

I.  BACKGROUND          I.  BACKGROUND

          On December  30, 1993,  the appellant  sued her  former

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

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

and punitive  damages.   Her complaint  advanced one  substantive

federal  claim:   that Y&amp;R had  violated Title  VII of  the Civil

Rights  Act of  1964,  42  U.S.C.     2000e  to 2000e-17  (1994),

including  the Pregnancy Discrimination Act, 42 U.S.C.   2000e(k)

(1994), by (1) assigning Coutin  (who was then pregnant) to tasks

that were  detrimental to her physical and  emotional health, (2)

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

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

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

complaint  also  included  several claims  under  local  law, the

elements of  which were  subsumed, without  exception, under  the

                                                  

     1Coutin's  spouse  and their  conjugal partnership  are also
plaintiffs  and appellants  in this  litigation.   Because  their
rights derive from Coutin's, we  opt for simplicity and treat the
appeal as if Coutin were the sole plaintiff and appellant.

                                2

broader federal claim.

          Y&amp;R denied  Coutin's allegations and defended  the suit

with considerable vigor.  Along the way, the parties attempted to

reach  an  accord, but  they  came  no closer  than  a demand  of

$150,000 as against an offer of $15,000.  At trial, the appellant

(who  had secured  and  retained  other  employment)  offered  no

evidence of  lost income, and  that aspect of her  original claim

was  pretermitted.  The  case went to the  jury, which found that

Y&amp;R had intentionally  discriminated against, and  constructively

discharged, the appellant, thus violating both federal and Puerto

Rico law.   The jury awarded the appellant and her spouse a total

of $44,000 in  compensatory damages, plus an additional $1,538 in

severance  pay under  Law  80, P.R.  Laws Ann.  tit.  29,    185a

(1985).   The jury rejected  the appellant's prayer  for punitive

damages.

          Y&amp;R, which had  moved unsuccessfully for judgment  as a

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

motion and asked alternatively for a new trial.  See Fed. R. Civ.                                                              

P. 50,  59.   The district court  refused relief.   In  turn, the

appellant  petitioned under  42 U.S.C.     1988 for  an award  of

$52,793.75  in  counsel fees  and  related  expenses.    The  fee

application contained  a sworn statement delineating her lawyer's

two   decades  of  experience  in  personal  injury,  labor,  and

discrimination  cases,  as  well  as  extensive,  contemporaneous

billing  records  that  detailed  the  lawyer's  work  over  four

calendar years.  At the bottom line, the reckoning reflected out-

                                3

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

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

          Despite this meticulous proffer, the judge eschewed any

discussion  of  either  the  hours  spent  or the  billing  rates

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

The  judge  purported  to  base  his  decision  entirely  on  the

"plaintiffs' limited  success on  their  claims, the  plaintiffs'

willingness  to go  to  trial  despite  the  defendant's  earnest

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

involved."2  This appeal ensued.

II.  STANDARD OF REVIEW          II.  STANDARD OF REVIEW

          We   review   fee   awards   deferentially,   according

substantial  respect to  the  trial court's  informed discretion.

See Brewster  v. Dukakis, 3  F.3d 488, 492  (1st Cir. 1993).   We                                  

will disturb such  an award only for  mistake of law or  abuse of

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

F.2d  12, 14  (1st  Cir. 1988).    In this  regard,  an abuse  of

discretion occurs "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

                                                  

     2While the court did not elaborate upon the phrase "equities
involved," it is apparently a euphemism for the judge's view that
the appellant  had been fortunate to secure a verdict, and that a
large  fee  award  therefore  "would  constitute  an  intolerable
windfall."   We proceed on the  assumption that this is  what the
judge meant.    In all  events,  if the  judge was  referring  to
"equities" in a broader sense, those equities, to the extent that
they  bear on attorney  compensation, are encompassed  within the
standard   fee-adjustment  factors.     See  infra  note   3  and                                                            
accompanying text.

                                4

court makes a serious mistake in weighing them."  Foster v. Mydas                                                                           

Assocs., Inc.,  943  F.2d  139,  143 (1st  Cir.  1991)  (internal                       

quotation marks and citation omitted).

          Although  our  analytical  posture  is  respectful,  we

nonetheless must engage the district court's decision critically.

To facilitate this perlustration,  we require the lower  court to

explain its  actions.  See id. at 141.   The explanation need not                                        

be  painstaking,   and,  sometimes,   it  may   even  appear   by

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

against the  backdrop of the record  as a whole, must  expose the

district  court's thought process and show  the method and manner

underlying its  decisional calculus.   See  Blum v. Stenson,  465                                                                     

U.S. 886,  898 (1984);  Hensley v. Eckerhart,  461 U.S.  424, 437                                                      

(1983).

          This  principle is  especially important  when  the fee

award  departs  substantially  from the  contours  shaped  by the

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

a   substantial   reduction   in   either  documented   time   or

authenticated  rates should  offer reasonably  explicit findings,

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

the  whys and  wherefores.'"   Brewster, 3  F.3d at  493 (quoting                                                 

Metropolitan Dist. Comm'n, 847 F.2d  at 18)).  An appellate court                                   

deprived  of meaningful insight  into the trial  court's thinking

frequently  will be  unable to  conduct an  adequate review  of a

significantly adjusted fee  award, and thus will be  compelled to

remand  for  further findings.    See,  e.g.,  Riley v.  City  of                                                                           

                                5

Jackson, 99  F.3d 757, 760  (5th Cir. 1996); Freeman  v. Franzen,                                                                          

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

III.  METHODOLOGY          III.  METHODOLOGY

           The lodestar method  is the strongly preferred  method

by which  district courts  should determine  what  fees to  award

prevailing  parties  in actions  that  fall within  the  ambit of

section 1988.  See Lipsett v. Blanco, 975 F.2d 934, 937 (1st Cir.                                              

1992).  This approach contemplates judicial ascertainment of "the

number  of hours reasonably expended on the litigation multiplied

by  a   reasonable  hourly  rate"   as  the  starting   point  in

constructing a fee award.  Hensley,  461 U.S. at 433.  While  the                                            

lodestar method  is a  tool,  not a  straitjacket    as  we  have

acknowledged,  some deviation from an orthodox application of the

method   is  permissible   in  highly  unusual   situations,  see                                                                           

Metropolitan Dist. Comm'n,  847 F.2d  at 15-16    a  fee-awarding                                   

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

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

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

a tool.   The method is also a device which enables courts to pay

homage to  the fundamental reason  that Congress passed  the Fees

Act:    its  resolve  that  certain  types  of  wrongs,  such  as

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

that  private suits  aimed  at redeeming  such  abuses should  be

encouraged.  See City of Riverside  v. Rivera, 477 U.S. 561, 574-                                                       

75 (1986) (plurality opinion).

          To  say  that  a  trial court  mulling  a  fee  request

                                6

ordinarily must fashion a lodestar  is not to say that  the court

is  in thrall  to  an attorney's  time records.    The court  can

segregate time spent  on certain unsuccessful claims,  see, e.g.,                                                                          

Hensley, 461  U.S. at  435, eliminate  excessive or  unproductive                 

hours,  see, e.g.,  Lipsett, 975  F.2d  at 937,  and assign  more                                     

realistic rates  to time  spent, see, e.g.,  Brewster, 3  F.3d at                                                               

492.   In these and other ways,  the trial court, though adhering

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

a lodestar which differs substantially from the fee requested  by

the  prevailing party.   Moreover,  the trial  court retains  the

authority  to adjust the lodestar after  initially computing it  

but it  must do so in  accordance with accepted  principles.  See                                                                           

Hensley,  461 U.S. at  429-31 (citing the  legislative history of                 

the Fees Act and observing that it is appropriate to  adjust fees

in accordance  with the  twelve factors set  forth in  Johnson v.                                                                        

Georgia Highway  Express, Inc.,  488 F.2d 714,  717-19 (5th  Cir.                                        

1974)).3

IV.  ANALYSIS          IV.  ANALYSIS

          In  this instance,  Coutin submitted  the documentation
                                                  

     3This  circuit has embraced  the Johnson factors  for use in                                                       
sculpting fee  awards. See, e.g., Segal,  746 F.2d at 86.   These                                                 
factors are:   (1) the time and  labor required; (2) the  novelty
and difficulty  of  the questions;  (3)  the skill  requisite  to
perform the legal services properly; (4) the preclusion of  other
employment by the attorney(s) due  to acceptance of the case; (5)
the  customary  fee;  (6)  the   nature  of  the  fee  (fixed  or
contingent); (7) the  time limitations imposed  by the client  or
the  circumstances; (8)  the  amount  involved  and  the  results
obtained;  (9) the  experience, reputation,  and  ability of  the
attorney(s);  (10) the  "undesirability" of  the  case; (11)  the
nature  and  length  of the  professional  relationship  with the
client; and (12) the size of awards in similar cases.

                                7

needed to  permit the district  court to follow  the conventional

approach,  but the court scarcely mentioned  that proffer and, in

all events,  did not  engage in  any lodestar analysis  whatever.

While  such  a   departure  from  preferred  practice   will  not

necessarily  be fatal, spurning  all consideration of  a lodestar

places a substantial  burden upon the  district court to  account

for its  actions.  See Berg v. Gackenbach,  966 F.2d 731, 732 (2d                                                   

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

          Here, the district  court did not  cite any reason  for

abjuring  the lodestar  method.   Still,  the court  did make  an

effort  to explain its decisionmaking process, indicating that it

had  premised its  decision on  three factors:    the appellant's

limited  success, the  parties' abortive  efforts  to settle  the

case,  and  the equities  of  the  situation.   But  the  court's

reliance on the first of  these factors is at best insufficiently

explained, and its  reliance on the other two  factors is plainly

wrong.   Moreover, none  of these  factors justifies  the court's

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

                       A.  Limited Success.                                 A.  Limited Success.                                                    

          The district  court's  conclusion  that  the  appellant

enjoyed  only "limited success" (and,  thus, deserved less in the

way of counsel  fees) is too much of  a stretch.  To  be sure, as

the  court pointed  out, there  was  a chasmal  gulf between  the

damages requested in the complaint and the damages awarded.4  The
                                                  

     4In  making this  comparison, the  court  emphasized the  ad
damnum.   The use of  the ad damnum  for this purpose  is suspect
because the ad damnum is an inherently artificial construct.  See                                                                           

                                8

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

amount to more  than one element in the  constellation of factors

that  the court  considers when  determining the  quality  of the

results  obtained.     Because  this   phenomenon  is   sometimes

misunderstood, we take some pains to explain it.

          As Judge  Casellas correctly noted,  the Supreme  Court

has  identified results obtained as a preeminent consideration in

the fee-adjustment process.   See Hensley, 461 U.S.  at 432, 440.                                                   

But  the term "results obtained"  has a variety  of meanings.  It

can refer  to a  plaintiff's success  claim by  claim, or  to the

relief actually  achieved, or to  the societal importance  of the

right which has been vindicated,  or to all of these  measures in

combination.  We think that the  last meaning is the best choice,

and  that,  as  a  consequence,  all  three  types  of  "results"

potentially bear upon  the amount of an  ensuing fee award.   See                                                                           

generally Norman v.  Housing Auth. of Montgomery, 836  F.2d 1292,                                                          

1302 (11th Cir. 1988).

          Although all three measures of success must be factored

into the fee-reduction  calculus, they do not  lend themselves to

identical treatment.   On the  one hand, to  the extent that  fee

adjustments are  intended to  reflect the  success or failure  of

severable  claims, they are relatively easy to calculate because,

although some overlap  may muddy the waters, a  court usually can

                                                  

Aggarwal v. Ponce Sch. of Med., 745 F.2d 723, 729 (1st Cir. 1984)                                        
(observing that  "[m]odern litigation  practices being what  they
are, the  monetary demand which  caps a plaintiff's  complaint is
likely to be sanguine at best").

                                9

determine the  extent to which  a plaintiff has prevailed  on her

claims merely  by perusing the  docket (e.g., the  complaint, the

verdict  form, etc.),  and  can  then filter  out  time spent  on

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

the other hand,  a fee reduction in  response to a scanty  damage

award  or  a  shortfall  in  other relief  entails  a  subjective

evaluation  of damages  awarded and nonmonetary  relief obtained,

and is substantially  more difficult to quantify.5   Seen in this

light, the  computational principles  applicable to  claims-based

fee reductions are relatively simple and straightforward, whereas

the  computational  principles  applicable  to  relief-based  fee

reductions are highly  ramified and, in some respects, operate at

cross  purposes.    To visualize  how  these  sometimes competing

principles may  affect a district  court's effort to  determine a

"reasonable"  fee,  it  may be  helpful  to  catalog the  several

possible configurations in which the issue may arise.

          1.   If a plaintiff  prevails on only some  of multiple                    1.

claims,  then  a  fee reduction  may  be  in  order.    To  guide

decisionmaking in this situation, the Justices have suggested two

relevant questions:  "First, did the plaintiff fail to prevail on

claims that were  unrelated to the claims on  which he succeeded?

Second, did the  plaintiff achieve a level of  success that makes

the hours reasonably expended  a satisfactory basis for making  a

fee award?"  Hensley, 461 U.S. at 434.                              
                                                  

     5This  is equally true of  the vindication of rights (which,
to the  extent it  may be relevant  here, plainly cuts  against a
reduction in fees).

                                10

          When different claims for relief are not interconnected

  that  is, when  the claims  rest on  different facts  and legal

theories    they  are  by  definition  severable  and  unrelated.

Attorneys' fees normally should not  be awarded for time spent in

litigating  (or preparing  to  litigate) unsuccessful,  severable

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

          2.   If a plaintiff prevails on an insubstantial subset                    2.

of her interrelated  claims and obtains only  limited relief, the

trial  court  has  discretion  to  shrink  fees  to  reflect that

inferior  result.   See  Hensley,  461 U.S.  at  436; Andrade  v.                                                                       

Jamestown Hous.  Auth.,  82  F.3d  1179, 1191  (1st  Cir.  1996).                                

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

standpoint, but who nevertheless obtains substantial compensation

or other important  relief, usually will fare much  better in the

fee  wars, even  though some  of her  claims failed.   See, e.g.,                                                                          

Hensley, 461  U.S. at 440  ("Where a lawsuit consists  of related                 

claims, a  plaintiff who  has won  substantial relief  should not

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

did not adopt each contention raised.").

          3.   If  a prevailing  party is  successful on  all (or                    3.

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

complete) relief,  it goes  without saying  that reasonable  fees

should be  paid for time productively spent, without any discount

for limited success.

          4.     If  a  prevailing  party  succeeds  on  all  (or                    4.

substantially all)  of her  claims, but  receives no  significant

                                11

relief (e.g.,  the jury awards  only nominal damages),  the trial

judge  sometimes may deny  fees altogether because  this scenario

often  "highlights  the  plaintiff's  failure  to  prove  actual,

compensable injury."   Farrar v. Hobby, 506 U.S.  103, 115 (1992)                                                

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

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

"the `technical' nature  of a nominal damages award  or any other

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

1988").  Farrar,  then, signifies that fees need  not be bestowed                         

if the  plaintiff's apparent victory  is "purely technical  or de                                                                           

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

          5.  Sometimes,  the plaintiff will  prevail on all  her                    5.

claims,  but  will  receive  limited  (though  not insubstantial)

redress.   In such circumstances,  it is appropriate for  a trial

court to consider the skimpiness of the relief when adjusting the

lodestar figure.   See  Rivera, 477 U.S.  at 574.   But  though a                                        

meager damage  award may be  taken into consideration,  the Court

has squarely disclaimed "the proposition that fee awards under   

1988 should necessarily be proportionate to the amount of damages

a  civil  rights  plaintiff  actually  recovers."  Id. (approving                                                                

$245,456.25 in fees  in a section 1983 action that  resulted in a
                                                  

     6Be that as it may,  obtaining only nominal damages does not
negate  the possibility  of a  fee award.    For example,  if the
plaintiff  receives another form  of meaningful relief,  then the
"results  obtained"  may  be   substantial,  notwithstanding  the
plaintiff's   failure  to  collect  compensatory  damages.    See                                                                           
O'Connor v. Huard, 117 F.3d  12, 17-18 (1st Cir. 1997) (affirming                           
a substantial  attorneys' fee award  in a section 1983  action in
which  the  plaintiff  received  nominal  damages and  injunctive                                                               
relief).

                                12

judgment  for  $33,350);  see  also   id.  at  585  (Powell,  J.,                                                   

concurring) (noting that  "[n]either the decisions of  this Court

nor the  legislative history of   1988"  lend credence to a "rule

of  proportionality between  the  fee  awarded  and  the  damages

recovered in a civil rights case"); Foley  v. City of Lowell, 948                                                                      

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

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

award  and the  fee award,"  the  former "does  not constitute  a

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

          It is readily apparent that some tension exists between

these principles:   while a judge may not  automatically reduce a

fee award in proportion to  a judgment that is significantly less

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

into   reasonable  account  in  massaging  the  lodestar.    This

dissonance makes it  all the more crucial that a nisi prius court

provide a  clear explanation  when limited  relief furnishes  the

ostensible justification for a departure from the lodestar.

          Conscious of these differing configurations, we turn to

the case  at hand.  The focus of our inquiry is the lower court's

determination  that the  appellant's  success was  limited  (and,

thus, justified a fee reduction).

          We  start by  scrutinizing claims-based  success.   Y&amp;R

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

the  jury  declined to  grant  punitive damages  and  because the

appellant did not pursue her original prayer for lost income.  We

believe  that this riposte  blurs the distinction  between claims

                                13

and  damages.   In  the  fee-shifting context,  a  "claim" is  an

allegation of  a legal injury  comprised of various  elements and

equivalent to  a  cause  of action,  whereas  "damages"  are  the

compensation  awarded to the  plaintiff who has  suffered a legal

wrong and who therefore has  a valid claim against the defendant.

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

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

are  categories  of relief  that  the  jury and  the  appellant's

subsequent employment history, respectively, have denied her.

          We  need not linger.  From a claim-by-claim standpoint,

the  appellant prevailed up and down  the line.  She triumphed on

every  substantive claim asserted  under both federal  and Puerto

Rico law.   In so doing, she  achieved a 100% success  rate   and

complete  success is hardly  "limited."  Consequently,  a claims-

based, results-obtained fee reduction is wholly inappropriate.

          From the  standpoint of relief obtained,  the situation

is more  ambiguous.   After all, it  remains within  the district

court's discretion to  reduce a fee award in  response to limited

relief even  in the  presence of  complete claims-based  success.

See, e.g.,  Cartwright v. Stamper,  7 F.3d 106, 109-10  (7th Cir.                                           

1993)  (declining to award fees  where plaintiff succeeded on all

claims, but  received  only nominal  damages  for each).    Here,

however, the damage award is substantial in absolute terms   over

$45,000   and equals  roughly three times the  appellant's annual

salary.  On its face, such relief does not seem "limited"  in any

relevant sense.

                                14

          Moreover, to the extent   if at all   that the ratio of

the damages requested to the  judgment received may be taken into

account in  fixing an appropriate  award, see Foley, 948  F.2d at                                                             

19-20 ("Often,  when the  amount sought is  large but  the actual

recovery is  small, fees  may be  reduced  somewhat."); see  also                                                                           

Loggins  v.  Delo,  999  F.2d  364, 369  (8th  Cir.  1993),  this                           

proportion may be  used only  as one facet  of the trial  court's

determination of the quality of  the results obtained.  The court

may not employ the derived ratio as an independent  justification

for a fee  reduction.  See Rivera,  477 U.S. at 574.   Rather, in                                           

the absence of special circumstances, the court must evaluate the

data  submitted by the  fee-seeker, compute a  lodestar, consider

the totality of the adjustment  factors approved by Congress  and

the  Court,  see  supra  note  3,  and  make  specific,  reasoned                                 

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

          In  the instant  case, the  court  did not  analyze the

appellant's time-and-rate data; it  ignored the appellant's broad

claims-based success; and  it failed to explain why  the sum upon

which it settled   $5,000   was itself  reasonable in relation to

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

received.  Thus,  the more than 90% fee reduction  that the court

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

     7The district court's  reliance on Andrade (a  case in which                                                         
the trial judge ordered, and  this court approved, a reduction in
fees  from  $26,487.50  to  $2,500)  is  misplaced.   There,  the
plaintiffs  obtained  limited  claims-based success  and  limited                                                                  
relief.   See Andrade,  82 F.3d  at  1191.   In contrast,  Coutin                               
obtained substantial claims-based success and rather  substantial
relief.  Hence, Andrade and this case are not fair congeners.                                 

                                15

                    B.  Settlement Prospects.                              B.  Settlement Prospects.                                                      

          In  other   instances,  inquiry  into  the   course  of

settlement negotiations may  yield information that is  useful in

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

(applying Fed. R. Civ. P.  68 in a civil rights context).  In the

case at bar,  however, the defendant did not  invoke Rule 68 and,

in any event, the judgment  that the plaintiff obtained more than

trebled  the highest  settlement offer  available to  her.   This

success  validates  the  appellant's rejection  of  the  tendered

settlement and immunizes her  from detrimental consequences based

upon that  rejection. See Corder  v. Gates, 947 F.2d  374, 380-81                                                    

(9th Cir. 1991).

          Policy   considerations   militate   strongly   against

relaxing this rule.  Permitting a district court to reduce  a fee

award for failure  to settle when  the eventual judgment  exceeds

the best  settlement offer  previously made by  the losing  party

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

bargain, endorsing that  praxis would create inordinate  pressure

on plaintiffs to accept low settlement offers.  This result would

inhibit the  bringing of civil  rights actions, and, in  the end,

frustrate   Congress's  manifest  intention  that  the  Fees  Act

facilitate  the prosecution of private actions aimed at deterring

civil  rights abuses.    See  Rivera, 477  U.S.  at 574-75.    We                                              

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

attorneys'  fees  in  a  civil  rights  case  in  response  to  a

plaintiff's  rejection of a defendant's settlement offer when the

                                16

subsequent judgment exceeds that offer.8

                          C.  Windfall.                                    C.  Windfall.                                                

          The  district  court's  opinion  suggests  that  a  fee

reduction is appropriate because the  appellant had a shaky  case

and did not deserve to  prevail on the merits.  See supra note 2.                                                                   

Wholly apart  from the accuracy  vel non of the  district court's                                                  

assessment, this  criterion is not  a proper element of  the fee-

award calculus.

          Congress  intended  the  Fees Act  to  effect  attorney

compensation in  virtually all  cases involving  successful civil

rights claims.9    See  generally  S. Rep.  No.  94-1011  (1976),                                           

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

Hous. Auth., 113 F.3d 1294, 1300 (1st Cir. 1997).  After a jury's                     

verdict has been rendered  and has withstood whatever barrage  of

post-trial motions may  ensue, the time  for debate has  expired.

It is an  abuse of discretion for  the trial court thereafter  to

vent  its skepticism  about the  claimant's right  to recover  by

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

See Stefan  v. Laurenitis, 889  F.2d 363, 370-71 (1st  Cir. 1989)                                   

                                                  

     8This  case does not present the somewhat different question
of whether a  fee award in a civil rights action might be subject
to   reduction,  apart  from  Rule  68,  because  the  prevailing
plaintiff  received  a  damage  award  which  was  less  than the
defendant had offered in settlement.   We leave that question for
another day.

     9Despite this  policy  interest,  we  have  determined  that
counsel  fees may be withheld altogether if special circumstances
exist.   See Domegan v. Ponte, 972 F.2d 401, 419 (1st Cir. 1992);                                       
Lewis v. Kendrick,  944 F.2d 949, 957-58  (1st Cir. 1991).   Such                           
circumstances are rare.  They are not present here.

                                17

(refusing to  allow district courts  to balance equities  of this

sort  when considering  whether to  award  attorneys' fees  under

section 1988); see  also DeJesus v. Banco Popular,  918 F.2d 232,                                                           

235 (1st Cir. 1990).  In other words,  the time for a trial judge

to express his doubts about the viability  of a claim occurs when

the judge rules upon the full panoply of motions for judgment  as

a  matter of law and/or for a new  trial.  Once a case has scaled

those barriers    and  this case has    trimming  attorneys' fees

cannot be employed  as a palliative  to assuage lingering  doubts

about the legal viability of the claim.  See DeJesus, 918 F.2d at                                                              

235.   Indeed, if a  plaintiff has  a thin  case but  nonetheless

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

settlement  offer, such  a  template suggests  skillful advocacy,

perhaps worthy of an award of full fees.

                          D.  Local Law.                                    D.  Local Law.                                                 

          Wholly apart  from the district court's  rationale, Y&amp;R

has  a  fallback   position.    It  posits   that,  whatever  the

infirmities of the $5,000 fee  award under federal law, the award

comports with  Puerto Rico  law and should  be sustained  on that

basis.  This  thesis, which proposes that Puerto  Rico law should

govern in respect to fees  because the appellant prevailed on her

non-federal claims and  recovered double damages by  operation of

Puerto Rico law, fails for two reasons.

          First, under section 1988 "the plaintiff is entitled to

fees for  hours worked  not only on  the successful  civil rights

claims,  but also  on other  claims involving  a `common  core of

                                18

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

should receive significant fees when he has won a partial victory                                                                   

on a civil  rights claim while receiving substantially the relief

he  there sought,  though the  jury awards  it on a  factually or

legally related pendent state claim."   Aubin v. Fudala, 782 F.2d                                                                 

287, 291  (1st Cir. 1986)  (quoting Hensley, 461 U.S.  at 435).10                                                     

Here, where the elements of  the various claims under Puerto Rico

law  are  subsumed  by  the  Title  VII  claim,  the  claims  are

unquestionably  interrelated.  Hence, the fact that the appellant

also recovered under Puerto Rico  law is irrelevant vis- -vis her

section 1988 recovery.

          Second, as a  general matter, a plaintiff  who prevails

on congruent  federal  and state  claims and  qualifies for  fee-

shifting  under  two  or more  statutes  may  recover  fees under

whichever  fee-shifting regime  she  chooses.    See  Freeman  v.                                                                       

Package  Mach.  Co., 865  F.2d 1331,  1347 (1st  Cir. 1988).   To                             

constrain  the plaintiff's  choice would  withhold  from her  the

deserved fruits  of her  victory and  would discourage  potential

claimants from redeeming their civil rights.

V.  CONCLUSION          V.  CONCLUSION

          We  need go  no further.   The  court below  offered no

plausible reason for eschewing the  lodestar method, and no  such

                                                  

     10In Aubin, the plaintiff  prevailed on interrelated federal                         
and state claims,  recovering $501 on the former  and $300,000 on
the  latter.  782  F.2d at 288.   The district  court reduced the
requested attorneys' fees on a  theory much like that advanced by
Y&amp;R.   See id.  at 290.  We  overturned that ruling.   See id. at                                                                        
292.

                                19

reason springs spontaneously from the record.  It was, therefore,

error to  forgo the lodestar.   In addition, the court  relied on

impermissible  criteria in  making  its  non-lodestar fee  award.

Consequently,  we vacate the  order appealed from  and remand for

further  proceedings  consistent  with this  opinion.    Costs on

appeal shall be taxed in favor of the appellant.  Upon the timely

filing  of a  supplemental  application  in  suitable  form,  the

district  court  shall  include  in  its  new  fee  award  a  sum

sufficient  to compensate  the appellant's  counsel for  services

rendered  in connection with  the successful prosecution  of this

appeal.

          It is so ordered.                    It is so ordered.                                    

                                20
