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<pre>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br> <br> <br> <br>No. 98-1071 <br> <br>                ROBERT E. SCHNEIDER, JR., ET AL., <br> <br>                      Plaintiffs, Appellees, <br> <br>                                v. <br> <br>                COLEGIO DE ABOGADOS DE PUERTO RICO <br> <br>                      Defendant, Appellant. <br> <br> <br> <br> <br>No. 98-1073 <br> <br>                ROBERT E. SCHNEIDER, JR., ET AL., <br> <br>                      Plaintiffs, Appellees, <br> <br>                                v. <br> <br>       SECRETARIES OF JUSTICE AND TREASURY OF PUERTO RICO, <br> <br>                     Defendants, Appellants. <br> <br> <br> <br> <br>No. 98-1619 <br> <br>                ROBERT E. SCHNEIDER, JR., ET AL., <br> <br>                     Plaintiffs, Appellants, <br> <br>                                v. <br> <br>           COLEGIO DE ABOGADOS DE PUERTO RICO, ET AL., <br> <br>                      Defendants, Appellees. <br> <br> <br> <br>                                 <br>                                 <br>                                 <br>                                 <br>         APPEALS FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>       [Hon. James L. Watson, Senior U.S. District Judge] <br> <br> <br> <br>                              Before <br> <br>                      Lynch, Circuit Judge, <br>                                 <br>                  Hall, Senior Circuit Judge, <br>                                 <br>                   and Lipez, Circuit Judge. <br>                                 <br>                                 <br>                                 <br>                                 <br>     Robert E. Schneider, Jr., pro se and for Hctor Ramos-Daz. <br>     Carlos A. Rodrguez-Vidal, with whom Carlos Lugo-Fiol, <br>Solicitor General, Edda Serrano Blasini, Deputy Solicitor General, <br>Vanessa Ramirez, Assistant Solicitor General, and the Department of <br>Justice, Puerto Rico, were on brief, for the Colegio de Abogados de <br>Puerto Rico and the Secretaries of Justice and Treasury of the <br>Commonwealth of Puerto Rico. <br>     Salvador Antonetti-Zequeira for the Justices of the Supreme <br>Court of Puerto Rico. <br> <br> <br> <br> <br> <br>July 15, 1999 <br> <br> <br> <br>                                 <br>                                 <br>

  Per Curiam.  After two decades of litigation in the <br>Puerto Rico and federal courts, plaintiffs Robert E. Schneider, <br>Jr., and Hctor Ramos-Daz succeeded in invalidating the use of bar <br>dues for ideological purposes by the mandatory bar of Puerto Rico, <br>the Colegio de Abogados.  The action in the case at hand was a <br>civil rights action; the successful claims were of constitutional <br>dimension.  Other claims were less successful.  The district court, <br>acting pursuant to 42 U.S.C.  1988, awarded plaintiffs $244,848.12 <br>in attorney's fees plus costs and a refund in unrefunded compulsory <br>dues.  The Colegio and other defendants (collectively, "the <br>Colegio") appeal.  Schneider and Ramos cross appeal, saying, inter <br>alia, that they were entitled to even more.  We affirm in part and <br>reverse in part. <br>  The long history of this hard-fought litigation will not <br>be repeated here.  It is adequately told in the following opinions:  <br>Schneider v. Colegio de Abogados de Puerto Rico, 546 F. Supp. 1251 <br>(D.P.R. 1982); In re The Justices of Supreme Court of Puerto Rico, <br>695 F.2d 17 (1st Cir. 1982); Schneider v. Colegio de Abogados de <br>Puerto Rico, 565 F. Supp. 963 (D.P.R. 1983), vacated by Romany v. <br>Colegio de Abogados de Puerto Rico, 742 F.2d 32 (1st Cir. 1984); <br>Schneider v. Colegio de Abogados de Puerto Rico, 572 F. Supp. 957, <br>957-58 (D.P.R. 1983); Schneider v. Colegio de Abogados de Puerto <br>Rico, 670 F. Supp. 1098 (D.P.R. 1987); Schneider v. Colegio de <br>Abogados de Puerto Rico, 682 F. Supp. 674 (D.P.R. 1988), rev'd in <br>part by Schneider v. Colegio de Abogados de Puerto Rico, 917 F.2d <br>620 (1st Cir. 1990); Schneider v. Colegio de Abogados de Puerto <br>Rico, 947 F. Supp. 34 (D.P.R. 1996); and Schneider v. Colegio de <br>Abogados de Puerto Rico, No. 82-1459 (D.P.R. Aug. 7, 1997). <br>  The Colegio protests that there should have been no award <br>at all for two reasons.  First, Schneider was representing himself <br>as well as Ramos and this, the Colegio says, makes Schneider a pro <br>se attorney-plaintiff who may not receive fees under the rule of <br>Kay v. Ehrler, 499 U.S. 432, 437-38 (1991).  In addition, the <br>Colegio argues, plaintiffs are not prevailing parties.  In any <br>event, the Colegio says, the fee award is simply too high for a <br>number of reasons. <br>  Questions of law regarding the award of attorney's fees <br>are reviewed de novo.  See Williams v. Hanover Housing Auth., 113 <br>F.3d 1294, 1297 (1st Cir. 1997).  Otherwise, the award is reviewed <br>with deference and "will be disturbed only for mistake of law or <br>abuse of discretion."  Rodriguez-Hernandez v. Miranda-Velez, 132 <br>F.3d 848, 858 (1st Cir. 1998). <br>  We affirm the award of attorney's fees plus costs and the <br>refund of unrefunded dues, except for those fees and costs <br>associated with the proceedings in the courts of the Commonwealth <br>of Puerto Rico that took place before the filing of this federal <br>lawsuit.  As to that limited amount of fees and costs, totaling <br>$13,872.20, the court reverses and vacates. <br>  The first question is whether any fees should be awarded <br>in light of the fact that attorney Schneider was a plaintiff as <br>well as counsel.  Here, Ramos is a plaintiff and Schneider also <br>represented Ramos; the fees incurred by plaintiffs are essentially <br>the same whether or not Schneider was also a plaintiff.  The <br>Colegio does not argue otherwise.  Thus, in our view, the <br>prohibition in Kay against awarding attorney's fees to an attorney <br>pro se litigant does not apply.  See Kay, 499 U.S. at 437-38.  We <br>do not reach the issue of whether plaintiffs would have had <br>difficulty in obtaining other counsel, a matter on which the record <br>is barren of evidence. <br>  The second question is whether plaintiffs are prevailing <br>parties given the partial success of their claims.  On balance, we <br>conclude that they are prevailing parties given their success in <br>invalidating the payment of mandatory bar dues for ideological <br>activities of the bar.  See Farrar v. Hobby, 506 U.S. 103, 109 <br>(1992) (explaining that "plaintiffs may be considered 'prevailing <br>parties' for attorney's fees purposes if they succeed on any <br>significant issue in litigation which achieves some of the benefit <br>the parties sought in bringing suit") (quoting Hensley v. <br>Eckerhart, 461 U.S. 424, 433 (1983) (internal quotation marks <br>omitted)). <br>  The third question is whether attorney's fees may be <br>awarded to plaintiffs for work done in the Commonwealth courts <br>before the filing of the federal lawsuit.  The district court's <br>attempts to find this situation identical to abstention by a <br>federal court after a federal claim has been filed and to further <br>characterize the Puerto Rico proceedings "as a necessary prelude to <br>the federal action" are in error, both as a matter of law and of <br>fact.  Schneider v. Colegio de Abogados de Puerto Rico, No. 82- <br>1459, slip op. at 4-5, (D.P.R. Aug. 7, 1997) (emphasis added).  The <br>correct test is articulated in Webb v. Board of Education, 471 U.S. <br>234 (1985): pre-suit fees may be awarded under 42 U.S.C.  1988 <br>only for "discrete" work "that was both useful and of a type <br>ordinarily necessary to advance the civil rights litigation to the <br>stage it reached."  Id. at 243.  After all, the statutory language <br>in  1988 permits an award of attorney's fees only "[i]n any action <br>or proceeding to enforce a provision of section[] . . . 1983."  42 <br>U.S.C.  1988(b) (emphasis added).  No federal claims were raised <br>in the Puerto Rico proceeding and plaintiffs do not meet the Webb <br>test. <br>  The next question is whether the overall fee award is <br>excessive.  The district court found that the claims on which the <br>plaintiffs prevailed were "reasonably related" to those on which <br>the plaintiffs lost, and the court therefore declined to reduce the <br>overall award on the basis of plaintiffs' limited success.  <br>Although the question is close, we think that the district court <br>properly found an adequate relationship between the successful and <br>unsuccessful claims.  See Hensley, 461 U.S. at 440 (noting that an <br>award of attorneys' fees based on related claims should not be <br>reduced merely because the plaintiff did not prevail on every <br>claim).  As to the remainder of the defendants' objections and as <br>to plaintiffs' cross appeal, there is no showing of mistake of law, <br>clear error of fact, or abuse of discretion by the district court. <br>  For these reasons, the judgment is affirmed in part, <br>reversed in part, and the judgment is modified to reduce the <br>attorney's fees awarded from $244,848.12 to $230,975.92 (with <br>interest from September 22, 1988, as per the district court's final <br>judgment). <br>  Costs to plaintiffs. <br> <br>  LIPEZ, Circuit Judge, concurring.  Although I agree with <br>the results arrived at by my colleagues in their per curiam <br>opinion, I wish to explain more fully the history of this case and <br>my rationale for the conclusions we reach. This case is the <br>culmination of a two decade long odyssey of litigation that has <br>engaged thousands of hours of attorney and court time, raised <br>important constitutional issues, and engendered strong feelings <br>among the parties. Under these circumstances, I think it is <br>appropriate to offer an explanation that hopefully will enhance an <br>understanding of the issues we have addressed and avoid further <br>litigation. <br>                               I. <br>                       Litigation History <br>  The Colegio de Abogados de Puerto Rico ("Colegio"), <br>Puerto Rico's unitary bar association, instituted disciplinary <br>proceedings in the Supreme Court of Puerto Rico in 1977 against <br>ninety-nine attorneys for failure to pay their annual dues. All but <br>two, Robert E. Schneider, Jr. and Hctor R. Ramos-Daz, paid the <br>dues. As a defense to the disciplinary proceedings, Schneider and <br>Ramos argued that the statute establishing the Colegio in its <br>modern form, Law Number 43, 4 L.P.R.A.  771, as amended, exceeded <br>the authority of the Puerto Rico legislature, and that compelled <br>membership in the Colegio violated their rights of free speech and <br>association under the Constitution of the Commonwealth of Puerto <br>Rico. Schneider and Ramos alleged that bar dues were being used <br>to fund ideological activities outside the legitimate scope of a <br>bar association. A special master was appointed by the Court to <br>receive evidence, and after several years of proceedings (during <br>which Schneider served as counsel for himself and Ramos), the <br>Supreme Court of Puerto Rico issued an opinion on April 5, 1982. <br>Colegio de Abogados de Puerto Rico v. Schneider, 112 D.P.R. 540, 12 <br>T.P.R. 676 (P.R. 1982) (Colegio I). <br>  The Court ruled that Law 43 was a valid exercise of <br>legislative power and that compulsory membership in the Colegio was <br>constitutional under the Puerto Rico Constitution. Holding that it <br>had plenary power to shape rules governing Colegio membership, the <br>Court ordered the Colegio to institute a new process permitting <br>attorneys to dissent from the use of their dues for ideological <br>activities, including the establishment by the next dues period of <br>an independent review board to pass on controversies arising over <br>activities funded from dues. Dissenters' dues would be held in <br>escrow until then. See 12 T.P.R. at 695. In passing on the <br>constitutionality of the Colegio's use of compulsory dues for <br>ideological purposes, and in shaping the remedy, the Court based <br>its rulings on dissenters' rights arising under the Puerto Rico <br>Constitution, not the federal Constitution. However, it stated that <br>"the sense of the freedom of speech clause contained in Art. II, <br>Sec. 4 of the Constitution of Puerto Rico is not narrower than that <br>given by the United States Supreme Court to the First Amendment in <br>this context," id. at 692, and relied heavily on federal precedent <br>in its discussion, see id. at 689-94. The Court gave Schneider and <br>Ramos fifteen days to pay their dues or be suspended from the <br>practice of law. Id. at 695. Notwithstanding the promised procedure <br>for objecting to Colegio activities, Schneider and Ramos refused to <br>pay dues, and were disbarred on June 3, 1982. <br>  On June 9, 1982, Schneider filed a complaint on behalf of <br>Ramos and himself in federal district court alleging that the <br>Colegio, its Foundation, the Secretaries of Justice and Treasury of <br>Puerto Rico, and the Justices of the Supreme Court of Puerto Rico <br>violated their civil rights pursuant to 42 U.S.C.  1983. <br>Responding to assorted motions filed by the parties, the district <br>court ruled on September 13, 1982, inter alia, that plaintiffs' <br>challenge to compulsory Colegio membership and to the use of dues <br>and stamp revenues for ideological purposes stated a cause of <br>action not barred by res judicata or collateral estoppel <br>principles, that abstention was not appropriate, and that the <br>Justices of the Supreme Court of Puerto Rico were immune from <br>damages but not from declaratory and injunctive relief. See <br>Schneider v. Colegio de Abogados de Puerto Rico, 546 F. Supp. 1251 <br>(D.P.R. 1982) (Torruella, J.) (Schneider I). <br>  During the pendency of the proceedings in the district <br>court, the Colegio, its Foundation, and the Justices of the Supreme <br>Court of Puerto Rico submitted petitions for a writ of mandamus to <br>this court, asking that we order the district court to expedite its <br>decision or dismiss the action. Two days after the district court <br>issued its opinion, we entertained oral argument on the petitions <br>for mandamus (now reduced to seeking dismissal), and we modified <br>the court's decision sub nom. In re The Justices of the Supreme <br>Court of Puerto Rico, 695 F.2d 17 (1st Cir. 1982) (Schneider II). <br>We held that the Justices were entitled to a writ of mandamus <br>requiring the district court to dismiss claims against the Justices <br>concerning compulsory bar membership or compulsory payment of bar <br>dues because the Justices had only a neutral, adjudicatory role <br>with respect to those claims. See id. at 25. We further held that <br>the Justices should remain "purely nominal parties" with respect to <br>challenges to the use of stamp revenues because of their <br>administrative responsibilities over the stamp program. Id. at 27. <br>The request of the Colegio and its Foundation for mandamus relief <br>was denied. See id. <br>  In December 1982, in compliance with the earlier order of <br>the Supreme Court of Puerto Rico, the Colegio adopted a remedial <br>refund procedure and informed that Court of its action. While the <br>Supreme Court of Puerto Rico evaluated the remedy, the district <br>court held an evidentiary hearing on the merits of the proposal, <br>followed by full argument and briefing. In June 1983, the district <br>court issued a ruling characterizing the Colegio's remedy as a <br>"sham, designed to forestall the adjudication of this case and the <br>remedies to which Plaintiffs are entitled under the Laws and <br>Constitution of the United States." Schneider v. Colegio de <br>Abogados de Puerto Rico, 565 F. Supp. 963, 977 (D.P.R. 1983) <br>(Schneider III). As noted by the district court, the proposal <br>provided that, in order to retain a right to object to any activity <br>funded by the Colegio, a general objection to funding ideological <br>activities had to be voiced by a dissenting member at the moment of <br>paying dues. Members were then required to object specifically to <br>individual activities within thirty days after they took place, and <br>a Review Board of lawyers essentially selected by the Colegio's <br>Board of Governors would review objections on a standard that <br>defined "ideological activities" narrowly to mean activities <br>"related to partisan politics." Id. at 975. If an objection was <br>successful, the member who objected would receive a proportionate <br>refund of dues; others who objected only generally to the use of <br>their fees for ideological activities would receive notice of the <br>outcome and would have to file claims individually within thirty <br>days of notice in order to receive similar refunds. See id. <br>  The court found the proposed remedy inadequate because it <br>(1) failed entirely to address the issue of use of funds raised <br>through sale of notarial stamps, (2) unconstitutionally required <br>dissenters to disclose their disapproval of specific activities, <br>(3) was procedurally inadequate to protect the dissenters, <br>requiring excessive vigilance from them, and (4) used too narrow a <br>definition of "ideological." Id. at 976-77. The court therefore <br>declared various sections of Law 43 and related acts "as <br>interpreted, enforced and applied" to be unconstitutional. Id. at <br>979-80. The court also enjoined all defendants (except the <br>Justices) from taking any action against lawyers who failed to pay <br>dues or fees to the Colegio "until such time as the Colegio ceases <br>to engage in ideological and/or political activism," from <br>collecting fees from the sale of forensic or notarial stamps, or <br>from preventing anyone otherwise qualified from engaging in legal <br>or notarial practice for failure to pay dues or fees or failure to <br>be a member of the Colegio. Id. Plaintiffs Oreste Ramos, Romany and <br>Souss (to whom the court limited, without explanation, its award) <br>were awarded nominal damages of one dollar each. See id. at 980. <br>The court subsequently refused to stay this judgment pending <br>appeal. See Schneider v. Colegio de Abogados de Puerto Rico, 572 F. <br>Supp. 957, 962 (D.P.R. 1983) (Schneider IV). <br>  We vacated this decision sub nom. Romany v. Colegio de <br>Abogados de Puerto Rico, 742 F.2d 32, 40-43 (1st Cir. 1984) <br>(Schneider V), reasoning that the court should have abstained from <br>deciding the federal constitutional claims, and citing to cases in <br>the line descended from Railroad Commission of Texas v. Pullman, <br>312 U.S. 496 (1941). We stated that "the district court should have <br>stayed its hand in this case, pending final determination of the <br>issues turning upon Puerto Rico law, as it is clear that completion <br>of the remedial stage of [Colegio I] 'might avoid in whole or in <br>part the necessity for federal constitutional adjudication; or at <br>least materially alter the nature of the problem.'" 742 F.2d at 40 <br>(quoting Harrison v. NAACP, 360 U.S. 167, 177 (1959)). We added <br>that "[t]he argument for abstention is also greatly strengthened by <br>several special factors" present in the case. Id. at 42. First, an <br>action in the Commonwealth court was already pending. See id. <br>Second, because the Supreme Court of Puerto Rico had inherent <br>plenary power to shape the rules governing the bar, it could <br>directly fashion relief, whereas a federal court was limited to <br>striking down provisions. See id. at 42-43. Finally, we cited <br>comity considerations: "the expertise, cooperation and goodwill of <br>the Supreme Court of Puerto Rico will make much difference to the <br>success of any remedy from whatever source over the long run. This <br>fact alone suggests the need for restraint in these <br>circumstances. . . . [W]hile we can appreciate the concerns of the <br>district court, we think this matter must be approached with <br>deliberation and full respect for the role of the judiciary of the <br>Commonwealth of Puerto Rico." Id. at 43. The stamp issues were also <br>held suitable for abstention, despite the fact that they were not <br>addressed in Colegio I. See id. at 43-44. Finally, we recommended <br>that the Supreme Court of Puerto Rico implement an interim remedy <br>to protect the interests of the dissenters: pending the resolution <br>of both Commonwealth and federal proceedings, we suggested that 50% <br>of dissenting members' dues should be held in an escrow account <br>managed by a neutral entity. See id. at 44-45. <br>  In the wake of our abstention ruling, the Supreme Court <br>of Puerto Rico again held hearings to consider a remedy. In late <br>1984, the Court issued an order providing for the interim remedy we <br>suggested, and then reinstated Schneider and Ramos to the practice <br>of law in light of their consent to that remedy. After hearings, <br>the Court issued an opinion outlining a permanent remedy. See <br>Colegio de Abogados de Puerto Rico v. Schneider, 117 D.P.R. 504, 17 <br>T.P.R. 610 (P.R. 1986) (Colegio II). The opinion established a list <br>of non-objectionable activities (such as maintaining professional <br>and ethical standards, advocating the rights and immunities of <br>lawyers, establishing legal aid programs, and so forth), without <br>offering a definition of "objectionable" activities. 17 T.P.R. at <br>630-31. It then provided that dissenting attorneys could lodge a <br>general objection to funding all "objectionable" activities, either <br>at the time of paying annual dues or later during the year. Id. at <br>633. A portion of dissenters' dues (15% for those objecting upon <br>payment; proportionately less for mid-year dissenters) would be <br>reserved in a general escrow account. See id. at 634. Any member of <br>the Colegio could raise objections to specific activities before a <br>review panel of retired Commonwealth judges, reviewable by the <br>Supreme Court of Puerto Rico. If the review panel found the <br>activity to be objectionable, a proportionate dues refund would be <br>paid to the objector and to all those who lodged a general <br>objection. See id. at 632-35. The costs and expenses of the use of <br>Colegio facilities by third parties engaged in objectionable <br>activities would be "subject to this remedy" if those parties did <br>not cover those costs and expenses. Id. at 631. Proceeds from the <br>sale of notarial and bar stamps were not to be used for <br>objectionable activities. See id. at 636. <br>  The Colegio then moved to dismiss the federal action as <br>res judicata. The district court (per Torruella, by then a Circuit <br>Judge, sitting by designation) rejected this argument, see <br>Schneider v. Colegio de Abogados de Puerto Rico, 670 F. Supp. 1098, <br>1101 (D.P.R. 1987) (Schneider VI), for roughly the same reasons it <br>gave earlier, in Schneider I, 546 F. Supp. at 1268-74 (a ruling not <br>appealed and thus, the court held, the law of the case). 28 U.S.C. <br> 1738 requires federal courts to give the same preclusive effect <br>to judicial proceedings of any state, territory or possession <br>(including the "Commonwealth" of Puerto Rico; see Felix Davis v. <br>Vieques Air Link, 892 F.2d 1122, 1124 (1st Cir. 1990)) that those <br>judgments would be given in the courts of the state, territory or <br>possession from where the judgments were entered. See Kremer v. <br>Chemical Constr. Corp., 456 U.S. 461, 466 (1982). Puerto Rico's res <br>judicata rules require that "there be the most perfect identity <br>between the things, causes, and persons of the litigants, and their <br>capacity as such." 31 L.P.R.A.  3343 (quoted in Schneider VI, 670 <br>F. Supp. at 1104). The court found that the federal case concerned <br>ongoing obligations to support the Colegio, whereas the <br>Commonwealth case concerned only past obligations not met, thus <br>disrupting the required identity. Collateral estoppel was <br>inapplicable because the federal claims were not raised in the <br>Commonwealth proceedings. Schneider VI, 670 F. Supp. at 1104. <br>  Reaching the merits once again in a subsequent hearing, <br>the district court found that the 1986 rule failed to adequately <br>protect dissenters' rights. See Schneider v. Colegio de Abogados de <br>Puerto Rico, 682 F. Supp. 674 (D.P.R. 1988) (Schneider VII). The <br>court found the rule's definition of "objectionable" activities  <br>too narrow. The rule stated that activities within "the Bar <br>Association's purposes and ends which are germane thereto shall not <br>be considered objectionable," and then stated that the Colegio's <br>"functions and purposes" are "[t]o exercise . . . powers conferred <br>by law or by the Supreme Court of Puerto Rico and any other <br>incidental powers necessary or convenient for the ends of its <br>creation and which are not in disagreement with the purpose and the <br>law which creates the Bar Association." Id. at 687. <br>  Most importantly, the parties had stipulated for this <br>proceeding that objectionable Colegio activities, similar to those <br>undertaken prior to 1983, had continued. See id. at 678. This <br>stipulation induced the court to implement substantial remedial <br>measures. The court found the 15% escrow reserve percentage to be <br>arbitrary, and held that the Colegio had to base the escrow <br>percentage on each year's projected budget, including a buffer <br>allowing for error in the budget projections. See id. at 687-88. <br>The court also found unacceptable the requirement that dissenters <br>object to specific activities, and the fact that those objections <br>would be made public. See id. at 684, 689. The court allowed 60 <br>days for the Commonwealth to institute a remedial rule. See id. at <br>691. Pending the adoption of such a rule, the defendants could not <br>compel payment of dues or fees, use of stamps, or membership in <br>the Colegio. See id. Finally, the court awarded nominal damages of <br>one dollar to each of the five plaintiffs. See id. at 692. <br>  On appeal from the district court's ruling, we stayed the <br>injunction prohibiting mandatory dues for six months "so that the <br>Colegio may remain integrated while it attempts to correct its <br>constitutional defects."  See Schneider v. Colegio de Abogados de <br>Puerto Rico, 917 F.2d 620, 623, 636 (1st Cir. 1990) (Schneider <br>VIII). During this period, 100% of dissenters' dues would be held <br>in escrow. See id. at 636. After the six months had passed, the <br>injunction was again stayed (this time by the district court) <br>pending consideration of petitions for certiorari filed by the <br>Colegio, Secretaries, and plaintiffs, all of which were denied by <br>the Supreme Court on January 13, 1992. See 502 U.S. 1029 (1992). <br>  The Supreme Court of Puerto Rico issued a new rule in <br>June of 1992. The district court reviewed it, and, finding it <br>inadequate in several respects, ordered the parties to submit the <br>district court's amendments to the Supreme Court of Puerto Rico for <br>its consideration. Order, No. 82-1459 (D.P.R. Nov. 19, 1992). <br>Amended rules were issued by the Supreme Court of Puerto Rico in <br>January 1993. Judge Torruella withdrew from the case on March 13, <br>1995. Following the recusal of all other judges in the District of <br>Puerto Rico, Judge James L. Watson was designated to sit in the <br>District of Puerto Rico and assigned the case. He approved the new <br>rule and held that the dissenting attorneys were entitled to <br>attorney's fees as prevailing parties under 42 U.S.C.  1988. See <br>Schneider v. Colegio de Abogados de Puerto Rico, 947 F. Supp. 34, <br>41, 42 (D.P.R. 1996) (Schneider IX). After holding hearings and <br>receiving evidence, the court awarded attorney's fees in the amount <br>of $244,848.12 plus interest to Schneider for his representation of <br>Ramos and himself throughout the litigation, from 1977 onwards, <br>including time spent in the disciplinary proceedings and post- <br>abstention proceedings in the Supreme Court of Puerto Rico. See <br>Memorandum, Opinion and Order, No. 82-1459 (D.P.R. August 7, 1997) <br>(Schneider X, unpublished slip opinion). After issuance of a final <br>Judgment, No. 82-1459 (D.P.R. March 23, 1998) (Schneider XI, <br>unpublished), the parties resubmitted notices of appeal. <br>  On appeal, the Colegio and the Secretaries challenge the <br>court's award of attorney's fees, claiming that Schneider was pro <br>se and therefore not entitled to fees under  1988, that he and <br>Ramos were not prevailing parties, and that the award of fees was <br>excessive, primarily because it compensated for hours spent in <br>proceedings before the Supreme Court of Puerto Rico. They also <br>claim the court erred in its order mandating a refund of dues to <br>plaintiffs. In their cross-appeal, Schneider and Ramos claim the <br>court erred in failing to: (1) order a more extensive refund of <br>dues; (2) address a seeming inconsistency in the rules governing <br>who may object to specific Colegio activities; (3) adequately <br>sanction the Colegio for its failure to notice plaintiffs of <br>motions before the court and for its withdrawal of funds from the <br>escrow account; (4) award fees to attorney Hctor Mrquez for his <br>representation of several other plaintiffs in this litigation; and <br>(5) hold the Justices of the Supreme Court of Puerto Rico liable <br>for attorney's fees. <br> <br>                              II. <br>                           The Appeal <br>A. Plaintiffs' entitlement to attorney's fees <br>  Federal courts have consistently held that a pro se <br>litigant who is not a lawyer is not entitled to attorney's fees <br>under  1988. See Lovell v. Snow, 637 F.2d 170 (1st Cir. 1981); see <br>also Poythress v. Kessler, 475 U.S. 1129, 1129 (1986) (Burger, <br>C.J., dissenting from denial of certiorari) (citing lower court <br>cases); Gonzalez v. Kangas, 814 F.2d 1411, 1411 (9th Cir. 1987) <br>(citing cases).  In Kay v. Ehrler, 499 U.S. 432 (1991), the Supreme <br>Court extended this rule to pro se litigants who also happen to be <br>lawyers. The Court stated that "it seems likely that Congress <br>contemplated an attorney-client relationship as the predicate for <br>an award under  1988," id. at 436, and reasoned that Congress <br>wished to encourage such an agency relationship so that parties <br>would benefit from the detached objectivity of a disinterested <br>advocate. See id. at 435-37. <br>  This case is not Kay because Schneider was involved in an <br>attorney-client relationship throughout this litigation, <br>representing both himself and Hctor R. Ramos-Daz. The attorney- <br>client relationship imposed an ethical obligation on Schneider to <br>consider the interests of his client at all times and exercise his <br>best professional judgment, thus satisfying the concerns <br>underlying Kay's requirement of an attorney-client relationship. <br>Nevertheless, the Colegio argues that we should extend Kay to <br>situations where an attorney-client relationship exists, but the <br>attorney also has a personal interest in the outcome of the case. <br>On this theory, the Colegio asserts that Ramos (and Schneider as <br>well) should have sought counsel who was fully disinterested in the <br>outcome of the case if they wished to avail themselves of <br>attorney's fees under  1988. <br>  I disagree. If Ramos had retained an attorney admitted in <br>Puerto Rico   that is, a member of the Colegio   to represent him, <br>it could hardly be said that he had retained objective counsel. Any <br>relief achieved by the litigation would have affected the rights <br>and obligations of such an attorney in relation to the Colegio, <br>just as it would those of his client Ramos; therefore, such an <br>attorney's stake in the outcome of the matter would resemble that <br>of a party. Moreover, such an attorney would have complied with the <br>very rules that Ramos wished to challenge, and would thereby have <br>taken a position directly contrary to that of his client. <br>  Although Ramos could have sought counsel admitted only <br>outside the jurisdiction, he would have faced many practical <br>difficulties. During most of the pendency of this case, an attorney <br>who was not a member of the Colegio could only practice in the <br>Commonwealth through courtesy of the Puerto Rico Supreme Court. <br>Prior to July 1, 1989, an attorney could not be admitted to <br>practice before the federal district court for the District of <br>Puerto Rico without being "currently in good standing as an <br>attorney admitted to practice before the courts of the Commonwealth <br>of Puerto Rico." P.R. U.S. Dist. L.R. 201 (1987). Therefore, any <br>attorney from outside the jurisdiction would have had to obtain <br>courtesy admission in the Commonwealth Court in order to argue even <br>the federal case (at least prior to July 1, 1989). In addition, <br>Ramos would have had to find an attorney from outside of Puerto <br>Rico proficient in Spanish and competent to deal with issues of <br>Commonwealth constitutional law to function effectively in the <br>Commonwealth Court proceedings. <br>  I believe the challenge of finding "independent" counsel <br>with fully objective judgment capable of competently handling the <br>entirety of the case, and gaining his or her admission to practice <br>before the Commonwealth and federal courts, would constitute an <br>unreasonable burden on Ramos in the pursuit of his legal claims. If <br>"Congress was interested in ensuring the effective prosecution of <br>meritorious claims" when it enacted  1988, as the Supreme Court <br>stated in Kay, 499 U.S. at 437, surely it did not envision <br>requiring plaintiffs in the position of Ramos to seek disinterested <br>counsel under circumstances that would make such a requirement <br>antithetical to the effective prosecution of their claim. I <br>therefore conclude that Schneider's party status, on the unusual <br>facts of this case, does not preclude an award of attorney's fees. <br> <br>B. Schneider's and Ramos' status as prevailing parties under 42 <br>U.S.C.  1988 <br>  The Civil Rights Attorney's Fees Awards Act of 1976, 90 <br>Stat. 2641, as amended, 42 U.S.C.  1988(b), provides that: <br>    In any action or proceeding to enforce a <br>  provision of section[] . . . 1983 . . . of <br>  this title, . . . the court, in its <br>  discretion, may allow the prevailing party, <br>  other than the United States, a reasonable <br>  attorney's fee as part of the costs . . . . <br>The Colegio and Secretaries argue that the relief obtained by <br>plaintiffs consisted mainly of an award of nominal damages, which <br>"did not materially alter the relationship between the plaintiffs <br>and the Colegio and the Secretaries," and left the outcome of the <br>litigation as a whole "at most a minimal success" for plaintiffs. <br>The Colegio and Secretaries contend that the primary "relief sought <br>in this case was clearly to convert the Colegio into a voluntary <br>association, and shield the plaintiffs from the risk of disbarment <br>for their continued refusal to pay dues to the Colegio." This <br>argument conflates an argument for a reduction in the size of the <br>award due to "limited success" (which I consider in section C(1), <br>below) with an argument that the plaintiffs here are not entitled <br>to any fees award since they do not qualify as "prevailing <br>parties." <br>  Plaintiffs may be considered prevailing parties "if they <br>succeed on any significant issue in litigation which achieves some <br>of the benefit the parties sought in bringing suit." Texas State <br>Teachers Assoc. v. Garland Indep. Sch. Dist., 489 U.S. 782, 789 <br>(1989) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) <br>(quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. <br>1978))). The Supreme Court has stated that a plaintiff is a <br>prevailing party under  1988 "when actual relief on the merits of <br>his claim materially alters the legal relationship between the <br>parties by modifying the defendant's behavior in a way that <br>directly benefits the plaintiff," and that "[a] judgment for <br>damages in any amount, whether compensatory or nominal, modifies <br>the defendant's behavior by forcing the defendant to pay an amount <br>of money he otherwise would not pay." Farrar v. Hobby, 506 U.S. <br>103, 111-12, 113 (1992).  Since Schneider and Ramos each received <br>one dollar in nominal damages, they are "prevailing parties" who <br>"crossed the threshold to a fee award of some kind." Garland, 489 <br>U.S. at 792. <br> <br>C. The size of the fee award <br>1. Degree of success <br>  While "the degree of a plaintiff's success in relation to <br>the other goals of the lawsuit" is not relevant to his "eligibility <br>for a fee award," it is "a factor critical to the determination of <br>the size of a reasonable fee." Garland, 489 U.S. at 790. The <br>Colegio contends that the overall fee award should have been <br>reduced because Schneider and Ramos achieved limited success when <br>the litigation is viewed as a whole, and, in particular, plaintiffs <br>failed to achieve the goal "closest to [their] heart[s]," <br>overturning mandatory membership. Evaluating the extent of success <br>for purposes of fees award reduction is assigned to the trial <br>court's discretion and our review is appropriately deferential. See <br>Hensley, 461 U.S. at 437 ("court necessarily has discretion" in <br>making equitable judgment as to fees award reduction for limited <br>success). <br>  The Supreme Court has stated that "'the most critical <br>factor' in determining the reasonableness of a fee award 'is the <br>degree of success obtained.'" Farrar, 506 U.S. at 114 (quoting <br>Hensley, 461 U.S. at 436). Where a plaintiff recovers "only nominal <br>damages . . . the only reasonable fee is usually no fee at all." <br>Farrar, 506 U.S. at 115. However, this principle applies only <br>"'[w]here recovery of private damages is the purpose of civil <br>rights litigation.'" Id. at 114 (quoting Riverside v. Rivera, 477 <br>U.S. 561, 585 (1986) (Powell, J., concurring)). Damages were never <br>a significant issue to the plaintiffs in this litigation. Rather, <br>Schneider and Ramos sought and achieved far more than an award of <br>individual money damages in this case. They sought primarily to <br>vindicate their constitutional rights through injunctive relief. <br>Although compulsory Colegio membership was ultimately held to be <br>constitutional, this holding was subject to a significant <br>qualification: the Colegio would no longer be allowed to use dues <br>and stamp proceeds to support ideological purposes outside of the <br>core purposes of a bar association, and it was forced to institute <br>procedures to refund to dissenting attorneys dues that were <br>earmarked for such ideological purposes. As the district court put <br>it: "[T]he success of plaintiffs in winning an alteration of the <br>method by which dues were assessed and collected by the Colegio was <br>a victory of major proportions for the constitutional rights of <br>Colegio members. . . . Its significance is not diminished by the <br>fact that there were a good number of issues on which plaintiffs <br>did not prevail." Schneider X, slip op. at 1. <br>  The Supreme Court has stated that "[w]here a lawsuit <br>consists of related claims, a plaintiff who has won substantial <br>relief should not have his attorney's fee reduced simply because <br>the district court did not adopt each contention raised." Hensley, <br>461 U.S. at 440. Claims are related where they "involve a common <br>core of facts or [are] based on related legal theories," or where <br>counsel's time is "devoted generally to the litigation as a whole, <br>making it difficult to divide the hours expended on a claim-by- <br>claim basis."  Id. at 435; see also Coutin v. Young & Rubicam <br>Puerto Rico, Inc., 124 F.3d 331, 339 (1st Cir. 1997) (claims <br>unrelated where they "rest on different facts and legal theories" <br>(emphasis added)). Here the district court specifically found that <br>"[t]hose claims in which plaintiffs failed to prevail were <br>reasonably related to the claim on which they succeeded. The <br>[failed] claims were not distinct in all respects" and therefore <br>hours expended pursuing them were properly considered in assessing <br>fees. Schneider IX, 947 F. Supp. at 42 (citing Hensley, 461 U.S. at <br>440). <br>  The Colegio and Secretaries claim the district court <br>abused its discretion in reaching this conclusion. However, the <br>unsuccessful efforts of Schneider and Ramos to overturn mandatory <br>membership and stamp use were closely related to their successful <br>efforts to establish a dues reduction procedure and limits on the <br>Colegio's use of stamp proceeds. Both remedies pursued by <br>plaintiffs (voluntary membership/stamp use and dues <br>reduction/limits on stamp revenue use) were means to the same end: <br>vindicating the constitutional rights of dissenters who did not <br>wish to be forced to subsidize the Colegio's ideological <br>activities. Plaintiffs' based their pursuit of both alternate <br>remedies on an identical "core of facts" documenting the Colegio's <br>ideological activities, and on "related legal theories" regarding <br>the underlying constitutional right in question; either identity <br>would be sufficient to establish the relatedness of the remedial <br>claims under the disjunctive standard of Hensley and Coutin, above. <br>Moreover, it would be nearly impossible to "divide the hours <br>expended on a claim-by-claim basis," Hensley, 461 U.S. at 435, even <br>if the district court, in the exercise of its discretion, had <br>determined that it was equitable to do so. I therefore conclude <br>that the district court did not abuse its discretion in declining <br>to reduce the attorney's fees award because Schneider and Ramos did <br>not prevail on every claim they raised or achieve all the relief <br>they requested. <br> <br>2. The Commonwealth Court proceedings <br>  Under certain conditions, federal courts have held that <br>hours expended in state court proceedings are compensable under <br> 1988. We have, for example, held that hours expended in state <br>court proceedings are compensable where those state proceedings <br>were initiated and pursued solely because of a federal court's <br>Pullman abstention subsequent to the initial filing of a federal <br>claim in the federal forum. See Exeter-West Greenwich Reg'l Sch. <br>Dist. v. Pontarelli, 788 F.2d 47 (1st Cir. 1986) (where  1983 <br>action halted under Pullman for certification of issue of Rhode <br>Island law to state supreme court, and state court's resolution <br>mooted  1983 claim, attorney's fees properly awarded for hours <br>spent on state court proceedings); see also Bartholomew v. Watson, <br>665 F.2d 910 (9th Cir. 1982) (state court action compensable where <br>state proceedings initiated and pursued solely because of filing of <br>federal claim and subsequent Pullman abstention by federal court). <br>Clearly, therefore, all hours expended on proceedings before the <br>Supreme Court of Puerto Rico subsequent to our 1984 abstention <br>ruling and leading to its June 1986 opinion, and any subsequent <br>Supreme Court of Puerto Rico proceedings, are eligible for <br>compensation. Section 1983 was part of the litigation by then, and <br>federal court abstention made the prosecution of the Commonwealth <br>proceedings necessary to the advancement of the federal proceeding. <br>  The Colegio argues that hours spent in the disciplinary <br>proceeding in the Supreme Court of Puerto Rico from 1977 to <br>plaintiff's 1982 disbarment, prior to the filing of the federal <br>claim, should not be compensable under  1988 since the <br>disciplinary proceeding preceded the filing of the federal claim <br>but was not a legally necessary precursor to the filing of that <br>claim. On this line of argument, Schneider and Ramos should have <br>raised their federal constitutional defenses to the disbarment <br>proceedings immediately (instead of reserving them) and should then <br>have attempted to remove the case to federal court. Better yet, <br>according to the logic of the Colegio, they might have preempted <br>the disbarment action by filing a complaint seeking declaratory <br>relief in federal court under  1983, instead of simply letting <br>their dues payments lapse and waiting for the Colegio to commence <br>disciplinary proceedings in the Commonwealth Court. However, they <br>chose to allow the disciplinary proceedings to commence and then <br>intentionally reserved their federal ( 1983) defenses. The Colegio <br>claims that this course of conduct left the 1977-1982 disciplinary <br>proceedings essentially unrelated to the  1983 action that <br>eventually followed, and thus any hours expended on the <br>disciplinary proceedings should not be compensable under  1988. <br>  In ordering more proceedings on the subject of attorney's <br>fees in its October 1996 ruling, the district court stated that <br>"[a]bsent a showing that these hours[ claimed for work in <br>Commonwealth Court proceedings], or any part of them, were either <br>done for the benefit of this federal litigation or necessary to <br>maintain or advance this litigation, or otherwise connected to or <br>required by this litigation, such work is not covered by 42 U.S.C. <br> 1988." Schneider IX, 947 F. Supp. at 42 (citing Webb v. County <br>Bd. of Educ., 471 U.S. 234 (1985)). Ultimately, however, the court <br>justified its actual fees award not on Webb but rather on its <br>conclusion that the Commonwealth Court proceedings of 1977-1982 <br>would have been part of any federal  1983 action because of the <br>inevitability of Pullman abstention on the facts of this case. <br>Specifically, the district court stated that "[c]lose scrutiny has <br>been given to plaintiffs' claim for attorney[']s fees incurred in <br>the Commonwealth court proceedings from November 1977 . . . to June <br>9, 1982 [the date of filing the federal action]." Schneider X, slip <br>op. at 3. Noting that this litigation did not have the "'neat' <br>history of an action in which the federal court immediately <br>abstained in order to allow a state action to proceed," the court <br>nevertheless concluded that "the conduct and conclusion of the <br>Commonwealth proceeding was eventually recognized as a necessary <br>prerequisite and adjunct to the federal action." Id. at 4. <br>  I cannot agree with this rationale, grounded as it is on <br>the inevitability of the 1977-1982 Commonwealth proceedings even if <br>Schneider and Ramos had filed their federal claims in federal court <br>prior to the commencement of the disciplinary proceedings in 1977. <br>Pullman abstention is a discretionary practice of federal courts, <br>premised on both prudential and federalism/comity concerns, see <br>Pullman, 312 U.S. at 500-01, and it is therefore impossible to say <br>with certainty that a federal court would have ordered abstention <br>on a given set of facts. See Baggett v. Bullitt, 377 U.S. 360, 375 <br>(1964) ("The abstention doctrine is not an automatic rule applied <br>whenever a federal court is faced with a doubtful issue of state <br>law; it rather involves a discretionary exercise of a court's <br>equity powers."); Erwin Chemerinsky, Federal Jurisdiction 742 (3d <br>ed. 1999) ("abstention doctrines are derived from the discretion <br>inherent to courts of equity" (citing Quackenbush v. Allstate <br>Insurance Co., 517 U.S. 706, 722-26 (1996)); id. at 747-48 <br>(acknowledging contradictory precedent but stating "[t]he <br>preferable approach is to treat abstention as discretionary"). <br>  It is true that we have awarded fees for hours spent <br>defending state court proceedings that were not the product of a <br>federal court's abstention. In Stathos v. Bowden, 728 F.2d 15 (1st <br>Cir. 1984), an employer, anticipating a  1983 suit by two <br>employees, brought an action seeking a declaratory judgment under <br>Massachusetts' sex discrimination statute in state court prior to <br>the filing of a federal claim by the employees. The employees <br>promptly brought a federal  1983 claim in federal court, and then <br>immediately sought to dismiss the preemptive state action brought <br>by the employer by citing the pending federal case. The state <br>action was then stayed pending resolution of the federal case. See <br>Municipal Lighting Commission of Peabody v. Stathos, 433 N.E.2d 95, <br>96 (Mass. App. Ct. 1982) (detailing chronology). We held that the <br>hours spent by the employees in defending the state declaratory <br>judgment action were a "necessary part of [the employees'] efforts <br>to achieve their  1983 goal" (and thus compensable under  1988) <br>since the "issues in the state suit were virtually the same as in <br>the federal case" and the employees "were forced to defend [the <br>state case] lest they lose their  1983 claim in the federal courts <br>through collateral estoppel." 728 F.2d at 22. <br>  While the Colegio's attempt to disbar Schneider and Ramos <br>might seem analogous to the preemptive action taken by the employer <br>in Stathos, the situations are distinguishable. Schneider and Ramos <br>did not move to cut short the state proceedings by instituting a <br>separate  1983 action in district court and then moving to halt <br>the Puerto Rico Supreme Court proceedings pending action in the <br>federal court (as did the employee-plaintiffs in Stathos), nor did <br>they raise federal defenses in the Commonwealth proceedings and <br>seek removal to the district court. Here, unlike the employees in <br>Stathos, Schneider and Ramos were not at risk of losing their <br>claims through collateral estoppel or res judicata (issue or claim <br>preclusion, respectively) predicated on the Puerto Rico Supreme <br>Court's resolution of the issues before it. See Schneider I, 546 F. <br>Supp. at 1268-74 (pre-1982 state proceedings not res judicata as to <br>federal proceedings; collateral estoppel also not applicable); <br>Schneider VI, 670 F. Supp. at 1104 (same). Rather, they attempted <br>to prevail on Commonwealth law grounds in the Puerto Rico Supreme <br>Court while reserving all federal/ 1983 claims. They therefore <br>have no claim to hours expended on the disciplinary proceedings <br>under Stathos. <br>  The Supreme Court has stated in Webb v. Board of <br>Education of Dyer County, Tennessee, 471 U.S. 234, 243 (1985), that <br>even hours spent pursuing procedurally-optional proceedings prior <br>to the commencement of the federal litigation may be compensable <br>where the work done in those optional proceedings was "both useful <br>and of a type ordinarily necessary to advance" a later federal <br>claim. There the Supreme Court held that because exhaustion of <br>administrative remedies was not a prerequisite to a  1983 claim, <br>plaintiff Webb was not entitled to attorney's fees for "all" work <br>done in (optional) administrative proceedings he chose to pursue <br>before his federal  1983 action was filed. The court held the <br>prevailing plaintiff to his contention (which he argued <br>consistently in the courts below) that "all of the hours spent by <br>his attorney" in the optional administrative proceeding were <br>"reasonably expended" to enforce rights under  1983. Id. at 242 <br>(emphasis added). "The question argued below was whether the time <br>spent on the administrative work during the years before [the <br>filing of the  1983 claim in] August 1979 should be included in <br>its entirety or excluded in its entirety. On this record, the <br>District Court correctly held that all of the administrative work <br>was not compensable." Id. at 243 (emphasis added). "The petitioner <br>made no suggestion below that any discrete portion of the work <br>product from the administrative proceedings was work that was both <br>useful and of a type ordinarily necessary to advance" the  1983 <br>claim. Id. (emphasis added). Whether or not facts like those in <br>Webb might ordinarily support a partial fee award, the "all-or- <br>nothing" nature of the plaintiff's fee claims in Webb precluded <br>such a result. <br>  In the case before us, we have no indication that <br>Schneider and Ramos made claims in any way distinguishable from <br>those made by Webb. Webb's attorney's fees claims in the district <br>court contained an "itemized description of the time spent" in the <br>ancillary administrative proceedings. Id. at 238. Schneider's and <br>Ramos' application did the same, detailing specific tasks and hours <br>spent thereon in the disciplinary proceedings. However, in Webb <br>this approach was found to be insufficient, given that Webb <br>presented only evidence "that the administrative work in its <br>entirety was 'useful' and 'necessary' to the outcome of the <br>litigation." Id. at 257 (Brennan, J., dissenting in part and <br>concurring in part) (emphasis added). Schneider and Ramos argued <br>below that the "total" hours expended in the 1977-1982 disciplinary <br>proceedings were compensable, on the theory that "litigation in the <br>Puerto Rico Supreme Court of the 1977 case Colegio v. Schneider et <br>al[.,] was a necessary and indispensable condition precedent to and <br>part of this case." Motion for Attorneys Fees, Dkt. 257 (Sep. 28, <br>1988), at 6. Later, after the Schneider IX decision, they argued <br>that a "prior ruling by the highest State [sic] Court on the <br>Constitutionality of said laws under the Constitution of the <br>Commonwealth of Puerto Rico was a prerequisite to the federal <br>claim, irrespective of whether said ruling was prior to or after <br>the institution of the suit in the Federal [sic] Court [sic] <br>challenging the constitutionality of said laws under the U.S. <br>Constitution." Motion in Compliance with October 30, 1996 Order, <br>Dkt. 382 (Feb. 7, 1997), at 3. Both statements present all-or- <br>nothing claims similar to those rejected in Webb. The statements <br>also mirror the inevitability theory put forward by the district <br>court, a theory I have rejected, above. In fact, Schneider and <br>Ramos did not articulate below (or on appeal) any viable theory for <br>why some "discrete portion" of the hours spent in the disciplinary <br>proceedings should be compensable as "useful and . . . ordinarily <br>necessary" under Webb. <br>  I therefore concur in the conclusion that we must reject <br>the claim of Schneider and Ramos for attorney's fees for hours <br>spent prior to June 3, 1982 on Commonwealth Court proceedings, and <br>must adjust the district court's award, eliminating those amounts <br>owing to hours expended prior to June 3, 1982 on Commonwealth Court <br>proceedings. In total these hours accounted for $13,872.20 of the <br>district court's fees award, and this deduction results in a <br>reduced award of $230,975.92, plus costs and with interest from <br>September 22, 1988 as per the district court's order. <br> <br>3. Miscellaneous claims for adjusting the fee award <br>  The Colegio contends that the court should have adjusted <br>the fee award downwards for work on losing claims advanced by <br>plaintiffs. I have already considered and rejected these "partial <br>success" fee reduction arguments in my discussion of the degree of <br>success issue, above. The Colegio also objects to the court's <br>failure to reduce the fee award for hours spent on motions by <br>plaintiffs that were dismissed, for allegedly excessive hours <br>claimed for individual tasks, and for clerical tasks allegedly <br>inappropriately performed by lawyers. The district court gave these <br>claims careful consideration in rejecting the majority of them, <br>see Schneider X, slip op. at 5-6, and we have properly refrained <br>from disturbing its exercise of discretion here. <br>  Citing no authority, see Appellant's Br. at 34-37, the <br>Colegio and Secretaries challenge the district court's refusal to <br>discount the fees award for time spent by plaintiffs pursuing <br>unsuccessful or partially successful appeals to this court. The <br>Schneider II proceeding, for instance, resulted in the grant of a <br>writ of mandamus to the defendant/petitioner Justices, reducing <br>them to nominal parties; our decision in the Schneider V appeal <br>vacated the district court's decision in favor of plaintiffs and <br>ordered abstention; and our Schneider VIII decision temporarily <br>stayed an injunction granting relief sought by plaintiffs. However, <br>"the prevalent approach" to determining whether a plaintiff is a <br>prevailing party "on appeal[] is to inquire whether the plaintiff <br>has prevailed in the litigation as a whole." John E. Kirklin, <br>Section 1983 Litigation: Statutory Attorney's Fees 29 (3d. ed. <br>1997); see also Cabrales v. County of Los Angeles, 935 F.2d 1050, <br>1053 (9th Cir. 1991) ("a plaintiff who is unsuccessful at a stage <br>of litigation that was a necessary step to her ultimate victory is <br>entitled to attorney's fees even for the unsuccessful stage"); <br>Buffington v. Baltimore County, 913 F.2d 113, 128 n.12 (4th Cir. <br>1990) (district court need not revisit fees award for first trial, <br>which ended in mistrial, where plaintiff prevailed in subsequent <br>trial); Alizadeh v. Safeway Stores, Inc., 910 F.2d 234, 237-38 (5th <br>Cir. 1990) (fees awarded for work on appeal which resulted in <br>reversal of summary judgment in favor of Safeway, which then <br>prevailed at trial; ultimate success on merits made award of "fees <br>for the entire course of the litigation" reasonable exercise of <br>district court's discretion);  Ustrak v. Fairman, 851 F.2d 983, 990 <br>(7th Cir. 1988) (plaintiff had prima facie entitlement to "entire <br>fees in this court" on appeal (from fees award) where fee award was <br>affirmed but reduced by a third); Dougherty v. Barry, 820 F. Supp. <br>20, 25 (D.D.C. 1993) (rejecting attempt to bifurcate failure on <br>appeal from success at trial; reasonable fees would be "determined <br>by examination of the entire case"). <br>  Here, Schneider and Ramos ultimately succeeded in <br>achieving a significant portion of the relief sought, despite a <br>number of backwards steps along the convoluted pathway this <br>litigation took through the courts (including this court of <br>appeals). I have no difficulty concluding that the district court <br>was within its discretion in refusing to discount hours spent in <br>unsuccessfully defending appeals, especially where the appellate <br>setbacks suffered by plaintiffs were largely procedural in nature <br>(here, reducing the justices from defendants to nominal defendants, <br>postponing (temporarily, as it turned out) the exercise of federal <br>jurisdiction, and temporarily postponing the effectiveness of an <br>injunction). Cf. Jaffee v. Redmond, 142 F.3d 409, 414 (7th Cir. <br>1998) (an "unsuccessful but reasonable argument in support of a <br>successful claim may be compensable."). The result might be <br>different were the unsuccessful appeals initiated by the <br>plaintiffs, but that was not the case for the three appeals to this <br>court mentioned above. See Ustrak, 851 F.2d at 990 (for purposes of <br>determining whether unsuccessful appeal is sufficiently related to <br>plaintiff's success, "a distinction should be made between an <br>appellant and an appellee"; where "defendant appeals and plaintiff <br>incurs expenses in defending against the appeal that are reasonable <br>even though they are not crowned by complete success," <br>plaintiff/appellee should be awarded fees since "he had no choice <br>but to incur them or forfeit his victory in the district court."). <br> <br>D. Refund of dues <br>1. Background <br>  The district court's final judgment in this matter, <br>Schneider XI at 1-2, included an order resolving dissenters' claims <br>to a refund of dues amounts corresponding to ideological activities <br>of the Colegio during years prior to the institution of the final <br>dues reduction procedure outlined in the 1993 rules promulgated by <br>the Supreme Court of Puerto Rico. Before responding to the parties' <br>objections to the district court's dues refund order, I must review <br>the history of that court's orders concerning dues payments during <br>the pendency of this case, including the dues payments that were <br>actually made by plaintiffs (relying primarily on the briefs on <br>appeal and cross-appeal for much of the payment data, which is <br>absent from the record). <br>  Schneider ceased to pay dues in 1974, Ramos in 1976. See <br>Schneider I, 546 F. Supp. at 1255. Our 1984 abstention decision <br>stated that a pure refund remedy was inadequate (a similar plan <br>having been rejected by the Supreme Court in Ellis v. Brotherhood <br>of Railway, Airline & Steamship Clerks, 466 U.S. 435, 441-44, 104 <br>S. Ct. 1883, 1889-90 (1984), on the grounds that the amount to be <br>rebated constitutes an "involuntary loan" to the union), and that <br>the Supreme Court of Puerto Rico should adopt an interim rule <br>allowing for a portion of dissenters' dues payments to be held in <br>escrow. See Schneider V, 742 F.2d at 44. We suggested that a <br>reasonable interim remedy would allow dissenters to pay 50% of dues <br>into escrow. See id. at 44-45. This recommended interim remedy was <br>approved on November 13, 1984 by the Supreme Court of Puerto Rico, <br>which allowed readmission of dissenters upon compliance; with <br>respect to Schneider and Ramos, the Court allowed them to pay 50% <br>of their dues into escrow for all dues years for which they had <br>voiced objection to Colegio ideological activities. See Dkt. 328, <br>Exh. A (Nov. 13, 1984 order of the Supreme Court of Puerto Rico). <br>  The parties stipulated terms for the escrow account, <br>including requirements that the name of the bank holding the <br>account and the account number be disclosed to dissenters, and that <br>the Supreme Court of Puerto Rico would order the Colegio "not to <br>withdraw any amount of money from this [Escrow] Account until the <br>claims in dispute have been finally resolved by the Supreme Court <br>of Puerto Rico, and, if it were necessary, by the federal courts." <br>Bl. Br. (cross appeal) at 7-8 (quoting Dkt. 328, Exh. B, at 2). The <br>stipulation was signed by the parties on Jan. 23, 1985, and on Jan. <br>31, 1985, Schneider and Ramos paid the Colegio 50% of their dues <br>corresponding to years 1978-1985 inclusive, and an equal amount <br>into the escrow account. At the same time, Schneider paid his full <br>dues for years 1974-1977 directly to the Colegio as well, see Red <br>Br. (cross appeal) at 21, and Ramos similarly paid full dues for <br>1976-1977 directly to the Colegio, see Red Br. (cross appeal) at <br>22; neither plaintiff paid any amount into escrow for those dues <br>years. In 1986 Schneider and Ramos paid appropriate amounts to the <br>Colegio and the escrow account for their 1986 dues. See Red Br. <br>(cross appeal) at 22. The Supreme Court of Puerto Rico's 1986 <br>remedy provided that 15% of dues could be paid to escrow for dues <br>years from 1987 onwards. See Colegio II, 17 T.P.R. at 634. Nothing <br>in the briefs or record on appeal indicates whether or not <br>Schneider or Ramos paid any dues for 1987 or 1988. <br>  In 1988 the district court enjoined the Colegio from <br>mandating bar membership or dues payments, see Schneider VII, 682 <br>F. Supp. at 691; after a grace period, this injunction appears to <br>have gone into effect on May 31, 1988 (although the record is far <br>from clear; the injunction may have been stayed pending appeal). We <br>suspended effectiveness of the injunction for 6 months in 1990, but <br>allowed 100% of dues to be escrowed during this stay. See Schneider <br>VIII, 917 F.2d at 636. After the 6 months expired, petitions for <br>certiorari were filed by all parties, and the district court <br>extended our stay pending resolution of these certiorari petitions. <br>The Supreme Court denied certiorari in January 1992. See 502 U.S. <br>1029 (1992). In June 1992, the Supreme Court of Puerto Rico issued <br>new rules governing dues that allowed dissenters to pay a <br>proportionately lower dues amount based on the Colegio's budget for <br>unobjectionable activities. Schneider admits not making dues <br>payments for the dues year 1989 and every year afterwards. See Red <br>Br. at 12. As for Ramos, the Colegio indicates that he paid dues <br>from 1989 to 1992 and paid the full, undiscounted amount to the <br>Colegio for 1993, see Red Br. (cross appeal) at 21; there is no <br>indication of whether Ramos paid some or all of his dues for 1989- <br>1992 into the escrow account. <br>  The 1992 rules promulgated by the Supreme Court of Puerto <br>Rico established a Review Board to deal with disputes over <br>categorization of expenses. On May 24, 1995, the Colegio appeared <br>before the Board to present its dues refund proposal for dues years <br>1985-1992. On August 29, 1995, the Review Board issued a decision <br>determining amounts for refund to plaintiffs in conformity with the <br>Colegio's proposal. For dues years 1989-1992, the amount to be <br>refunded was determined on the basis of an independent accounting <br>for that portion of the Colegio budget spent on ideological <br>activities; for other years where no accounting was done, the <br>total portion of dues (50% for 1985-1986 and 15% for 1987-1988) <br>paid into escrow was ordered refunded; in each case, refunds were <br>to include interest. Notwithstanding the Review Board's <br>pronouncement, further proceedings in the district court took place <br>in order to resolve the refund issue. After reviewing the <br>contentions of both parties, the court determined that "the fairest <br>way to resolve" the refund issue was to avoid determining exactly <br>what percentage of the Colegio budget for past years was <br>attributable to ideological activities, Schneider IX, 947 F. Supp. <br>at 42, and ultimately ordered that all moneys that had been paid <br>into escrow but were as yet unrefunded should be returned to <br>plaintiffs, with interest. See Schneider XI at 1-2. <br> <br>2. The Colegio's objection to the dues refund order <br>  The Colegio argues that the district court's "Memorandum, <br>Opinion and Order" of Oct. 30, 1996, Schneider IX, 947 F. Supp. at <br>42, "augments" the amount of dues to be refunded to plaintiffs, <br>over and above the limited refunds of escrowed dues approved by the <br>Review Board in 1995. The district court's final judgment ordered <br>the refund of all dues deposited in escrow, whereas the Review <br>Board approved only a partial refund for the years 1989-1992, <br>following the results of its independent accounting. For example, <br>for years 1990-1992, dissenters were allowed to pay 100% of their <br>dues into escrow, all of which would be refundable to dissenters <br>under the district court's refund plan, whereas the Review Board <br>determined that only a small portion of those payments would be <br>refunded based on its accounting of ideological-activity related <br>expenses for those years. However, in developing its argument, the <br>Colegio does not claim that this "augmentation" of the refund is <br>substantively unfair (with one minor exception addressed below), <br>but only claims that the Review Board's determination of the issue <br>should have had a preclusive effect on the district court. I find <br>nothing about the Review Board proceedings and refund order that <br>indicates its conclusions should be binding on the parties to the <br>federal case. The refund issue had been a part of the federal case <br>for many years, see, e.g., Schneider VII, 682 F. Supp. at 675, it <br>remained so, and the district court was well within its power in <br>choosing to resolve it as it did. <br>  The Colegio also seems to imply that the 1996 Opinion <br>unfairly "augments" the dues refund by ordering the Colegio to pay <br>Schneider a refund (in the amount of 50% of compulsory dues) for <br>years in which Schneider did not in fact pay any dues. The October <br>1996 order states: "To the extent that, in any year of the ... <br>period [during which dues were partially escrowed], the refund by <br>the Colegio to plaintiffs was less than 50% of the compulsory dues, <br>the difference shall be paid to plaintiffs with interest from the <br>end of that membership year." Schneider IX, 947 F. Supp. at 42. <br>This language might be read to mean that, had no dues been paid <br>into escrow by a plaintiff, and thus no dues refunded, the Colegio <br>would nonetheless owe said plaintiff the difference between the <br>amount refunded (zero) and half the compulsory dues, resulting in <br>a windfall for the plaintiff. However, the court's final order of <br>March 23, 1998 states its mandate somewhat differently: <br>    3. That, for the years in which plaintiffs and <br>  other lawyers, following the commencement of <br>  this action up to the promulgation of the <br>  rules referred to above, paid 50% or another <br>  portion of their annual compulsory dues into <br>  an escrow account and said amounts have not <br>  been refunded, then the Colegio shall refund <br>  the unrefunded amounts together with interest <br>  on those amounts from the end of the <br>  membership year for which they were deposited. <br> <br>Schneider XI at 1-2 (D. Puerto Rico March 23, 1998). This provision <br>clearly covers only "paid" and "unrefunded" amounts, which by <br>definition could not include amounts never paid by plaintiffs or <br>amounts already refunded under the plan approved by the Colegio's <br>Board of Review, if any. To the extent that any language in the <br>earlier opinion of the court could be interpreted to the contrary, <br>it is superseded by the text of this final order. <br>                              III. <br>                        The Cross-Appeal <br>A. The adequacy of the dues refund <br>  On cross-appeal Schneider and Ramos assert that the dues <br>refund order did not go far enough, and should have included an <br>order for dues refunds for the ten years prior to the court's <br>opinion and findings of fact in Schneider v. Colegio, 565 F. Supp. <br>963 (D.P.R. 1983). The district court's findings of fact are <br>detailed in the appendix to its opinion entitled "Supplementary <br>Findings and Conclusions": <br>    30. The official positions, activities and <br>  actions of the Colegio over the past ten years <br>  evidence a pattern of conduct by the Colegio <br>  to engage in, and to use the facilities, <br>  personnel and resources of the Colegio for <br>  ideological or political activity without <br>  restriction or limitation in the name and <br>  representation of all the members of the <br>  Colegio, including Plaintiffs. <br> <br>Schneider III, 565 F. Supp. at 982-83 (emphasis added). That <br>opinion was vacated on appeal, but the district court later <br>regarded its earlier factual findings as either the law of the case <br>(since not appealed from) or incorporated into the later opinion. <br>See, e.g., Schneider VII, 682 F. Supp. at 678-79. Schneider and <br>Ramos claim the court's 1998 order should have mandated further <br>refunds to cover the Colegio's use of dues for ideological <br>activities during the ten year period described in the court's 1983 <br>finding. This period includes years for which no portion of dues <br>was paid into the escrow account; such amounts would not be covered <br>by the court's 1998 refund order. <br>  Schneider and Ramos did not properly preserve this issue <br>for appeal. The district court first addressed the refund issue in <br>its October 30, 1996 order, stating that plaintiffs claimed "the <br>Colegio has not refunded to them the amount of dues properly <br>attributable to non-core activities during the course of this <br>litigation." Schneider IX, 947 F. Supp. at 42. The court <br>subsequently requested that the parties submit proposed final <br>orders. Plaintiffs' proposed order provided only for refunds of <br>dues paid into the escrow account "during the period from June 9, <br>1982 up to February 23, 1993." Dkt. 389, Dec. 5, 1997, Exhibit A, <br>at 12. Schneider and Ramos thereby waived the issue of refunds of <br>dues paid during any earlier period, and we have correctly refused <br>to entertain their request to exhume it on appeal. See Poliquin v. <br>Garden Way, Inc., 989 F.2d 527, 531 (1st Cir. 1993) (appellate <br>courts will not ordinarily resolve issues waived or abandoned at <br>trial). <br> <br>B. Construction of the Supreme Court of Puerto Rico's rules <br>governing the right to object to unbudgeted activities of the <br>Colegio <br>  The district court issued an order, Dkt. 313, Nov. 19, <br>1992, which mandated that the parties petition the Supreme Court of <br>Puerto Rico to consider certain amendments to that Court's 1992 <br>rules governing membership in the Colegio and the Colegio's use of <br>dues for ideological activities. The controversy at hand concerns <br>language in Rule 6(A), reproduced in context below ("second- <br>category activities" are those activities not related to the core <br>purposes of a bar association, or having "ideological overtones"): <br>    Rule 5 Dues  <br>      (A) Bar members who choose to finance <br>  all Bar Association activities shall pay the <br>  annual dues fixed by the General Assembly in <br>  accordance with the law.  <br>      (B) Computation of annual dues for bar <br>  members who choose not to finance <br>  second-category activities shall be based on <br>  the classification of the activities included <br>  in the Rule 4(B)(2) statement of income and <br>  expenses. The annual dues shall be an amount <br>  equal to the proportion of the regular dues <br>  that expenditures for first-category <br>  activities bear to expenditures for all Bar <br>  Association activities carried out during the <br>  year.  <br>      (C) Second-category activities shall <br>  not be funded from loans or contributions to <br>  the Bar Association, unless otherwise <br>  specified by the person who makes the <br>  contribution at the moment such contribution <br>  is made and it is thus accepted by the Bar <br>  Association upon receipt of the same.  <br>    Rule 6 Remedial mechanisms  <br>      (A) Any bar member who pays his Rule <br>  5(B) bar dues is entitled to resort to the <br>  Review Board of the Bar Association Activities <br>  (Review Board) created by these rules, with <br>  regard to:  <br>      (1) the classification of any <br>  particular activity included in the audited <br>  statement of income and expenses used as basis <br>  for the computation of dues, and/or  <br>      (2) the real expenses of a given <br>  activity.  <br>      (3) any nonbudgeted activity funded by <br>  first-category activity dues that arises <br>  during the course of the year, with respect to <br>  classification or amount of expense. <br> <br>Rules relating to the use of the Puerto Rico Bar Association funds <br>collected from the payment of dues and from the sale of notarial <br>and bar stamps, as amended, January 1993 (certified translation, <br>Dkt. 376) (emphasis added) (quoted in Schneider IX, 947 F. Supp. at <br>39). The 1992 version of Rule 6(A), extant prior to the district <br>court's order, was identical except for (3), which was added as <br>per the district court's Nov. 18, 1992 order. However, the district <br>court also recommended in its order that the highlighted language <br>in the first line of Rule 6(A), above, be changed. The relevant <br>text of the district court's order follows:  <br>      Plaintiffs object to the remedial <br>  mechanisms of Rule 6. As the Rule now stands, <br>  members must elect not to finance budgeted, <br>  noncore activities at the beginning of the <br>  year. Only those members who elected not to <br>  finance noncore activities may seek review of <br>  the budget by the Review Board of the Bar <br>  Association Activities ("Review Board"). This <br>  rule provides no avenue to object to <br>  nonbudgeted, noncore items that arise <br>  throughout the year, which if past experience <br>  is any indication, comprise the bulk of the <br>  noncore activities. <br>      Thus Rule 6 must be amended to allow <br>  all members (whether they objected to the <br>  projected budget, or approved it initially, <br>  and later dissent from a nonbudgeted, noncore <br>  activity that was funded from the core <br>  activity budget) to dissent at any time during <br>  the year, and to receive a refund should the <br>  Review Board grant their petition. The court <br>  notes that at the hearing counsel for the <br>  Colegio maintained that the Rules currently <br>  contain such a provision, and conceded that <br>  such a provision should be added if the Rules <br>  did not. <br>      The following amendments should be made <br>  to Rule 6: <br>        a) delete "his Rule 5(B) bar" from <br>    lines 1-2 of Rule 6; <br>        b) add "(3) any nonbudgeted activity <br>    funded by first-category activity dues <br>    that arises during the course of the <br>    year, with respect to classification or <br>    amount of expense." after provision (2) <br>    of Rule 6; <br> <br>Order, Dkt. 313 at 2 (Torruella, J.) (emphasis added to 6(A)). The <br>mandate at the end of the district court's order states that "[t]he <br>parties are hereby ordered to petition the Supreme Court of Puerto <br>Rico to consider the amendments to the Rules indicated herein." Id. <br>at 5. Notwithstanding the district court's use of the term <br>"consider," in fact the Supreme Court of Puerto Rico adopted all <br>the changes except the amendment to lines 1-2 suggesting the <br>deletion of "his Rule 5(b) bar" from Rule 6. <br>  Schneider and Ramos allege that the motion the Colegio <br>filed with the Supreme Court of Puerto Rico did not include <br>language describing the district court's proposed amendment to <br>lines 1-2 of Rule 6. They claim such presentation to the <br>Commonwealth Court was mandatory (and imply that the failure to <br>present was hidden from the district court by the Colegio's failure <br>to translate its motion into English). In response, the Colegio <br>claims the amendment was a mere "suggestion" by the court, but <br>further claims to have presented the entire November 18, 1992 order <br>(in English and in Spanish translation) to the Supreme Court of <br>Puerto Rico. This dispute was raised before the district court <br>after Judge Watson replaced Judge Torruella in 1995. The district <br>court's opinion of Oct. 30, 1996 states: <br>      In their motion for entry of judgment <br>  and injunctive relief, plaintiffs have argued <br>  that the Rule reproduced above limits the <br>  right to review to those who elected not to <br>  finance non-core activities at the beginning <br>  of the year, i.e., when the budget was first <br>  announced or approved. Plaintiffs claim that <br>  Rule 6 of the Rules still does not provide a <br>  way to object to non-budgeted, non-core items <br>  that arise during the year for the first time. <br>      This claim is totally incorrect. At a <br>  time when this judge had first entered the <br>  case, and when a complete copy of the new rule <br>  was not in the record, the adamancy with which <br>  this claim was advanced caused this court to <br>  hold hearings and order that a certified <br>  translation of the new Rule be filed. But when <br>  all is said and done plaintiffs have been <br>  unable to point to any meaningful way in which <br>  the new Rule fails to conform to the <br>  constitutional standards laid out by this <br>  court and the court of appeals. <br> <br>Schneider IX, 947 F. Supp. at 41 (Watson, J.) (emphasis added). I <br>concur with this judgment. <br>  On a literal reading, the 1993 Rules as amended might <br>appear to prevent those who "choose to finance all bar activities" <br>(and thus pay Rule 5(A) dues) from changing their minds mid-year <br>and invoking the review procedures of Rule 6(A) (limited to those <br>who pay "Rule 5(B) dues") when an unforeseen activity belonging in <br>the "second-category" is funded from the core activity budget. On <br>this reading, advocated by Schneider and Ramos, the amended Rules <br>establish an "all or nothing" objection rule, as it were: only <br>those who choose not to fund any second category activities (by <br>paying the reduced Rule 5(B) dues) may object mid-year under Rule <br>6 to the categorization or accounting for costs of budgeted or <br>unbudgeted activities. <br>  However, as the Colegio argues, other parts of the Rules <br>counter such an interpretation. Specifically, language in Rule 6(C) <br>allows for objections to unbudgeted activities by those who <br>initially opted to fund all activities: <br>    [Rule 6](C) Should the Review Board determine, <br>  after adjudicating the petitions filed for the <br>  year in question, that the expenses for <br>  second-category activities exceeded the <br>  budget, it shall order the Bar Association to <br>  make refunds to the bar members who chose not <br>  to finance such activities, or later objected <br>  to nonbudgeted, second-category activities, <br>  and to pay interest at the legal rate <br>  prevailing at the time when the dues were <br>  paid. The Review Board shall remit all funds <br>  to dissenters within a reasonable time. The <br>  Review Board shall order any fund surplus <br>  remitted to the Bar Association. <br> <br>Rule 6(C) (1993 version) (quoted in Schneider IX, 947 F. Supp. at <br>39-40) (emphasis added). The highlighted language was recommended <br>by the district court's Nov. 18, 1992 order, and presumably was <br>designed to be consistent with the other amendments recommended by <br>that order. It clearly presumes that the right to object is granted <br>even to those members who declined the option of not paying dues <br>for second-category activities at the beginning of the year. <br>  As more support for the Colegio's reading, I note that <br>language suggested by the district court and now incorporated into <br>Rule 9(B) seems to distinguish 6(A) petitions from "nonbudgeted <br>activity" petitions: <br>    [Rule 9](B) A Rule 6(A) petition objecting to <br>  budgeted items shall be filed before the final <br>  date set for payment of the annual dues. All <br>  petitions objecting to non-budgeted items <br>  shall be filed within ten (10) working days <br>  after the event or item occurs. <br> <br>Rule 9(B) (1993 version) (quoted in Schneider IX, 947 F. Supp. at <br>40) (emphasis added) (highlighted sections added in response to the <br>Nov. 18, 1992 order's proposed amendments). Again, this language <br>clearly allows any dues payer to object to nonbudgeted activities <br>(notwithstanding the "Rule 5(B) dues" restriction of Rule 6(A)). <br>The Colegio insists that the Rules must be read this way, the <br>district court agreed, and I concur: notwithstanding the limiting <br>language in Rule 6(A), any member of the Colegio who pays dues <br>(whether they be Rule 5(A) dues or Rule 5(B) dues) may resort to <br>the Review Board in order to object to "any nonbudgeted activity <br>funded by first-category activity dues that arises during the <br>course of the year, with respect to classification or amount of <br>expense" (as per Rule 6(A)(3)) and, if successful, receive an <br>appropriate refund. <br>  Schneider and Ramos claim that the district court should <br>have been bound in its 1996 ruling by the order of the court in <br>1992, which they claim established the "law of the case," and <br>should have insisted that the new rule "comply strictly" with the <br>1992 order's recommended changes to Rule 6(A). It is true that the <br>effect of the district court's reading in 1996, and mine, is not <br>exactly the same as the effect of the 1992 order's recommended <br>amendment to line 1 of Rule 6(A): had the amendment to Rule 6(A) <br>been made, and the language "his Rule 5(B) bar" been deleted, a <br>Rule 5(A) dues payer would have been able to voice objection under <br>6(A)(1) or (2) to classification or real expenses of budgeted <br>items. On the district court's reading in 1996, 5(A) dues payers <br>may not so object to treatment of budgeted items, but only to <br>treatment of "any nonbudgeted activity funded by first-category <br>activity dues that arises during the course of the year," as per <br>Rule 6(A)(3). However, objections to budgeted activities by Rule <br>5(A) dues payers were not contemplated by the reasoning of the <br>district court's 1992 order, which was concerned with only the <br>right of any member "to object to nonbudgeted, noncore items that <br>arise [during the course of] the year." Order, Nov. 19, 1992, Dkt. <br>313, at 2. Since the reading of the district court in 1996 gives <br>the Rules the effect intended by the court's 1992 order, there is <br>no law of the case problem. <br> <br>C. Sanctions for the Colegio's failure to notify the plaintiffs of <br>its June 20, 1991 motion to stay judgment <br>  Our opinion of December 20, 1990 (Schneider VIII, 917 <br>F.2d at 636) stayed for six months the effectiveness of the <br>district court's 1988 judgment (Schneider VII) immediately <br>enjoining the Colegio from compelling membership until it either <br>ceased all ideological activities or implemented an adequate system <br>to protect dissenters' rights. We took that action to give the <br>Colegio time to submit to the district court a modified rule <br>governing use of compulsory dues, in the hope that such a delay <br>would permit the preservation of the integrated bar while allowing <br>the Colegio to formulate a remedy for the constitutional problems <br>highlighted by this litigation. During the stay, all parties <br>submitted petitions for certiorari to the Supreme Court of the <br>United States. On June 20, 1991, the date on which our stay was <br>to expire, the Colegio requested an extension of the stay pending <br>the Supreme Court's consideration. The Colegio did not notify <br>Schneider of its motion requesting the stay. On July 19, 1991, the <br>district court granted the stay of the injunction as requested, <br>and, according to the Colegio, notified all parties. Schneider <br>claims the Clerk's office failed to notify him. The Supreme Court <br>denied certiorari on January 13, 1992. On June 30, 1992, the <br>Supreme Court of Puerto Rico promulgated rules governing use of <br>Colegio funds, effective July 1, 1992. On August 13, 1992, <br>Schneider and Ramos moved for sanctions against the Colegio for <br>failing to notify them of its motion. The court denied their <br>request. <br>  Schneider and Ramos claim that as a result of the <br>Colegio's failure to give notice, "[p]laintiffs had every reason to <br>assume that the injunction regarding the Colegio compulsory dues <br>was in effect and that they were under no obligation to pay Colegio <br>compulsory dues and plaintiffs relied on this assumption." <br>Schneider and Ramos imply that they mistakenly failed to pay their <br>next installment of Colegio dues and were subject to renewed <br>disciplinary proceedings. According to their brief (we have nothing <br>in the record to confirm this), on September 8, 1992, the Colegio <br>commenced a disciplinary action against Schneider and others as a <br>result of their failure to continue paying dues upon the extension <br>of the stay; the case, AB92-90, remains dormant but pending in the <br>Supreme Court of Puerto Rico. <br>  In denying the motion for sanctions (in its order <br>reviewing the new rules), the district court added an important <br>qualifier to its order, which essentially responds to the claim of <br>Schneider and Ramos: <br>    Plaintiffs' motion for sanctions against the <br>  Colegio de Abogados, for failure to notify <br>  plaintiffs that the court stayed the <br>  reimposition of the injunction against the <br>  Colegio, is denied. The plaintiffs are not <br>  relieved from payment of their annual <br>  membership dues and must do so within fifteen <br>  (15) days from the filing of this Order if <br>  they wish to retain membership in the Colegio. <br>  Upon payment of the dues owed by plaintiffs, <br>  the Colegio is ordered to rescind any request <br>  for disbarment that may have been filed as a <br>  result of plaintiffs' failure to timely pay <br>  their dues. <br> <br>Order of Nov. 18, 1992 (Dkt. 313), at 1-2 (emphasis added). Federal <br>Rule of Civil Procedure 5 requires that all parties not in default <br>be served with essentially all papers and pleadings filed <br>subsequent to the original complaint. The rule itself does not <br>specify what sanctions are appropriate for violations. Where the <br>moving party has failed to serve a motion on the nonmoving party, <br>courts have struck or denied the motion or set aside the relief <br>requested in the motion if already granted. See 4A Charles Alan <br>Wright & Arthur R. Miller, Federal Practice & Procedure  1143 n.13 <br>(citing cases). Although the court stated that it was denying <br>plaintiffs' motion for sanctions, it established a grace period for <br>payment of any dues that plaintiffs mistakenly failed to pay as a <br>result of their lack of notice, and thereby mitigated any prejudice <br>to plaintiffs resulting from the failure to give notice. Schneider <br>and Ramos do not indicate exactly what further sanction they <br>requested below, if any, and any specific argument for further <br>sanctions is thus waived. <br> <br>D. The Colegio's withdrawal of funds from the escrow account in <br>1986 <br>  The Supreme Court of Puerto Rico, by resolution of <br>November 13, 1984, as modified by stipulation of the parties on <br>January 23, 1985, adopted an interim remedy in consonance with the <br>proposals of this court in Schneider V, 742 F.2d 32, 44-45 (1st <br>Cir. 1984). Under this interim remedy, disbarred plaintiffs could <br>request readmittance if they paid half their dues to the Colegio <br>and half into an interest-bearing escrow account, where the funds <br>would be held until the parties and the courts worked out a final <br>refund procedure. Plaintiffs were allowed to escrow half their dues <br>payable back to the first membership year for which they objected <br>to the Colegio's ideological activities. As of December 1986, <br>Schneider had deposited 50% of his dues for membership years 1978 <br>through 1986 in the escrow account; the other plaintiffs similarly <br>had paid half of their dues for certain years into the escrow <br>account. The parties stipulated that the Colegio would inform the <br>dissenting attorneys depositing their dues into the escrow account <br>of the account number and the name of the bank selected by the <br>Colegio to hold such account. The stipulation also provided that <br>the Colegio would not withdraw funds from the account "until the <br>claims in dispute have been finally resolved by the Supreme Court <br>of Puerto Rico." Dkt. 328, Exh. B, at 2. <br>  On June 26, 1986, the Supreme Court of Puerto Rico <br>adopted a remedy providing for the deposit in an escrow account of <br>15% of compulsory dues paid by any lawyer dissenting to ideological <br>activities of the Colegio. See Colegio II, 17 T.P.R. at 634. On <br>December 24, 1986, the Colegio withdrew 70% of the balance <br>deposited in the escrow account and (according to plaintiffs) the <br>total of the interest, leaving 30% of the deposit balances <br>remaining in the escrow account. Since the amount originally <br>deposited in escrow was 50% of total dues, the 30% of deposit <br>balances remaining in escrow after the withdrawal corresponded to <br>15% of total dues. Apparently the Colegio presumed that it was <br>entitled by the terms of the 1986 remedy to reduce the dissenters' <br>dues withholding for prior years from the 50% of total dues the <br>Supreme Court of Puerto Rico mandated in 1984 to the 15% of total <br>dues mandated by its 1986 decision. However, plaintiffs also claim <br>the Colegio withdrew all of the interest earned in the account, not <br>just 70% of it. They also argue that nothing in the Supreme Court <br>of Puerto Rico's opinion stated its 15%-withholding-based remedy <br>would be applied retroactively. Plaintiffs also allege they never <br>received account statements, the name of the bank, or the number of <br>account, as required by the January 23, 1985 stipulation. <br>  It is important to note what is not in dispute here: <br>under the district court's 1998 order, every plaintiff should <br>ultimately receive refunds equal to the total amounts originally <br>deposited in escrow (with interest on any previously-unrefunded <br>portion): <br>    [F]or the years in which plaintiffs and other <br>  lawyers, following the commencement of this <br>  action up to the promulgation of the rules <br>  referred to above, paid 50% or another portion <br>  of their annual compulsory dues into an escrow <br>  account and said amounts have not been <br>  refunded then the Colegio shall refund the <br>  unrefunded amounts together with interest on <br>  those amounts from the end of the membership <br>  year for which they were deposited. <br> <br>Schneider XI at 1-2. The Colegio must refund any amounts that were <br>"paid" but "unrefunded," regardless of how much actually remains in <br>the escrow account. At issue, then, is only the question of <br>sanctions. I find no abuse of discretion in the district court's <br>conclusion that "the fairest way to resolve" the refund dispute, <br>Schneider IX, 947 F. Supp. at 42, was its refund order, without the <br>imposition of any sanction. <br> <br>E. Hctor L. Mrquez's hours <br>  Schneider purports to argue on behalf of Hector L. <br>Mrquez-Figueroa, another attorney who represented dissenting <br>attorneys in this litigation, that the court erred in not granting <br>an award of attorney's fees for hours expended by Mrquez on behalf <br>of plaintiffs Jorge F. Romany, Jorge Souss-Shidrewa, and Oreste V. <br>Ramos-Daz (the "consolidated plaintiffs") over the course of this <br>litigation. The Colegio argues that this part of the appeal was not <br>properly noticed, as the consolidated plaintiffs were not listed in <br>the caption of the notice of appeal filed by Schneider. That notice <br>is captioned "Robert E. Schneider, Jr., et als., plaintiffs." <br>Federal Rule of Appellate Procedure 3(c)(1)(A) states that the <br>notice of appeal must "specify the party or parties taking the <br>appeal by naming each one in the caption or body of the notice, but <br>an attorney representing more than one party may describe those <br>parties with such terms as 'all plaintiffs,' 'the defendants,' 'the <br>plaintiffs A, B, et al.,' or 'all defendants except X'." (Emphasis <br>added.) Schneider, however, was not representing Mrquez's <br>"consolidated plaintiffs," and thus was not entitled to designate <br>those plaintiffs as appellants informally through the use of "et <br>al." in his notice of appeal. Although Federal Rule of Appellate <br>Procedure 3(c)(4) states that "[a]n appeal must not be dismissed <br>for informality of form or title of the notice of appeal, or for <br>failure to name a party whose intent to appeal is otherwise clear <br>from the notice," this rule does not save the deficiency in the <br>notice of appeal: "The failure to name a party in a notice of <br>appeal is more than excusable 'informality'; it constitutes a <br>failure of that party to appeal." Torres v. Oakland Scavenger Co., <br>487 U.S. 312, 314 (1988). The consolidated plaintiffs failed to <br>appeal the court's award of attorney's fees, and we therefore lack <br>jurisdiction to consider the issue of Mrquez's fees for <br>representing them. See id. at 317. <br> <br>F. The liability of the Justices of the Supreme Court of Puerto <br>Rico for an award of attorney's fees <br>  Schneider and Ramos insist the court erred in holding <br>that the Justices of the Supreme Court of Puerto Rico were not <br>liable for any part of the attorney's fees award. The district <br>court ruled that the Justices would not be liable for attorney's <br>fees because they had been reduced to nominal parties early in the <br>case. See Schneider IX, 947 F. Supp. at 43 (fees ruling); Schneider <br>II, 695 F.2d at 27 (Justices remain in case as nominal parties, but <br>only as to their "administrative responsibilities in respect to the <br>stamp statutes"). Schneider and Ramos focus entirely (and <br>unpersuasively) on the Justices' potential fees liability for their <br>"non-adjudicative enforcement" and remedy-drafting actions, <br>responsibilities for which the Justices were not parties in this <br>case. The court's ruling was not an abuse of discretion. <br> <br>  For all of the reasons stated above, I concur with the <br>judgment of the court.</pre>

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