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<pre>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br> <br> <br> <br>No. 99-1553 <br> <br>                      DELCIO RIVERA-ROSARIO, <br> <br>                      Plaintiff, Appellant, <br> <br>                                v. <br> <br>                U.S. DEPARTMENT OF AGRICULTURE, <br> <br>                       Defendant, Appellee. <br> <br> <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>        [Hon. Carmen Consuelo Cerezo, U.S. District Judge] <br> <br> <br> <br>                              Before <br> <br>                     Torruella, Chief Judge, <br>               Boudin and Lynch, Circuit Judges. <br>                                 <br>                                 <br>                                 <br>                                 <br>  Demetrio Fernndez and Melva A. Quintana on brief for <br>appellant. <br>  Guillermo Gil, United States Attorney, and Fidel A. Sevillano <br>Del Ro, Assistant U.S. Attorney, on brief for appellee. <br>   <br> <br> <br> <br>January 24, 2000 <br> <br> <br> <br>

          LYNCH, Circuit Judge.  This is an appeal from a denial <br>of an award of attorney's fees under 42 U.S.C.  1988.  The <br>district court refused to award fees to plaintiff, who opted out of <br>a settlement, continued litigation, and then received damages <br>calculated according to the same formula used in the earlier <br>settlement.  The history of the case is set forth in Rivera-Rosario <br>v. U.S. Department of Agriculture, 151 F.3d 34 (1st Cir. 1998). <br>          In 1986, eight individuals including Rivera-Rosario <br>(Rivera) brought an employment discrimination action against the <br>U.S. Department of Agriculture (USDA) and the Secretary of <br>Agriculture for national origin discrimination in the payment of <br>benefits.  Ayala v. U.S. Dep't of Agric., Civil No. 86-1825CC  <br>(D.P.R.).  In 1988, the USDA adopted an administrative law judge's <br>finding that it had discriminated.  On May 6, 1991, a Stipulation <br>for Consent Judgment was entered between the USDA and the seven <br>plaintiffs other than Rivera.  Under that settlement: (a) each of <br>the seven plaintiffs would receive $10,000 for the period 1982-1988 <br>(and three of the plaintiffs would receive interest); (b) the caps <br>for accrued home leave benefits and annual leave would remain as <br>they were; (c) the remedy for future home leave would be <br>prospective; and (d) defendants would pay $31,433.52 in fees for <br>counsel for the seven (who had also been counsel for Rivera).  <br>Rivera chose not to participate in the settlement. <br>          In August 1992, Rivera executed a stipulation of <br>dismissal, dismissing his own case without prejudice.  See id. at <br>36.  He brought a new action pro se in April 1993 to recover for <br>the same national origin discrimination.  See id.  Counsel entered <br>an appearance for Rivera in September 1993.  The district court <br>determined that damages would be calculated according to the <br>procedure set out in its order in the Ayala case.  Based on those <br>principles, the court awarded Rivera $21,448.50, which included <br>principal and interest to May 6, 1991, the date of the earlier <br>settlement.  The district judge rejected Rivera's argument that the <br>two year back-pay period of Title VII, 42 U.S.C.  2000e-5(g)(1), <br>did not apply.  If he were freed of that constraint, Rivera said, <br>he would then be owed $113,864.60.  This court then deemed his back <br>pay argument waived because it was not briefed, and affirmed the <br>district court's order.  See Rivera-Rosario, 151 F.3d at 36-38.   <br>          Having been awarded the $21,448.50, Rivera then sought <br>attorney's fees in the amount of $38,150 for the action brought in <br>1993.  The fees were denied.  The district court found the <br>$21,448.50 awarded was what Rivera would have received had he <br>accepted the 1991 settlement; accordingly, he was not a prevailing <br>party.  Further, the court found that the litigation was frivolous, <br>but it did not award fees against Rivera, as it might have. <br>          In order to obtain attorney's fees under 42 U.S.C. <br> 1988, plaintiff must be a prevailing party.  See 42 U.S.C. <br> 1988(b).  On appeal, Rivera claims that he did prevail: he <br>received $21,448.50 and not $10,000, and he received an enforceable <br>judgment.  He also says he received a prospective benefit not <br>available before.  In light of this, Rivera argues the district <br>court committed error of law in refusing to award him any <br>attorney's fees.  Rivera argues that the district court, under <br>Farrar v. Hobby, 506 U.S. 103 (1992), could consider the degree of <br>success in determining the size of the fee but not as to the <br>eligibility for a fee award at all.  Fees must be awarded unless <br>there are special circumstances rendering an award unjust, Rivera <br>says, and that may only be done on findings of fact and conclusions <br>of law. <br>          The USDA says Rivera is not a prevailing party because <br>there is no causal relationship between his post-1991 pursuit of <br>his suit and the amount he obtained.  The USDA points to the fact <br>that Rivera's $21,448.50 total award was calculated by applying to <br>his claim the same principles used to calculate the awards of the <br>seven plaintiffs who settled in 1991. <br>          Questions of law regarding the award of attorney's fees <br>are reviewed de novo; otherwise, the decision on the award is <br>reviewed with deference and will be reversed only for an abuse of <br>discretion.  See Schneider v. Colegio de Abogados de Puerto Rico, <br>187 F.3d 30, 32 (1st Cir. 1999) (per curiam); see also Bercovitch <br>v. Baldwin Sch., Inc., 191 F.3d 8, 9-10 (1st Cir. 1999).  We agree <br>with the district judge that Rivera was not a prevailing party in <br>the 1993 action.  First, it is evident that the purpose of that <br>action was to pursue Rivera's claim that he was entitled to <br>$113,864.60.  He lost as to that, and so was hardly a prevailing <br>party.  Rivera's effort to recoup by claiming that the 1994 award <br>of $21,488.50 nonetheless means he was a prevailing party is also <br>unsuccessful.  Rivera contrasts his award with the $10,000 he says <br>was offered to the Ayala plaintiffs in the 1991 settlement.  But <br>the $21,488.50 is no more than $10,000 plus interest calculated as  <br>of the date of the 1991 settlement, and three of the seven <br>plaintiffs who settled in 1991 similarly received interest on their <br>$10,000 principal amounts.  Rivera fails to show that he received <br>anything more than what was available to him in 1991, so the <br>outcome of the 1993 action cannot be deemed successful.  <br>Furthermore, the fact that Rivera obtained an enforceable judgment <br>as opposed to a settlement agreement does not make him a prevailing <br>party.  Settlement agreements are enforceable in contract.  See <br>Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 381-82 <br>(1994).  Finally, Rivera's argument that he received an additional <br>enforceable benefit is belied by the record.  The only judgment he <br>received was for the sum of money described. <br>          Rivera also suggests that the administrative law judge's <br>finding that the USDA discriminated reinforces his claim that he is <br>a prevailing party.  This "catalyst" argument, however, is <br>similarly unavailing.  The reality is that it was the Ayala <br>lawsuit, settled in 1991, which served as a catalyst for the <br>finding of discrimination, and not his later suit.  To use the <br>language of the Farrar opinion, it was the Ayala suit that <br>"modifie[d] the defendant's behavior for the plaintiff's benefit."  <br>Farrar, 506 U.S. at 113.  Defendants have already paid the counsel <br>fees for the prevailing plaintiffs in Ayala.  No benefit beyond <br>that available in 1991 was gained in this lawsuit.  This case <br>provides no occasion to explore any contours of the catalyst theory <br>post-Farrar.  See Williams v. Hanover Hous. Auth., 113 F.3d 1294, <br>1299-1300 (1st Cir. 1997) (finding plaintiff qualified as <br>prevailing party under catalyst theory); see also Stanton v. <br>Southern Berkshire Reg'l Sch. Dist., No. 99-1050, 1999 WL 1128856, <br>at *3 & n.2 (1st Cir. Dec. 14, 1999) (noting that the circuits are <br>divided on the continuing viability of the catalyst theory).  See <br>generally 2 Sheldon H. Nahmod, Civil Rights and Civil Liberties <br>Litigation: The Law of Section 1983 10:10 (4th ed. 1999).  <br>Finally, because Rivera is not a "prevailing party," we do not <br>address his arguments about the "special circumstances" test.  <br>Hensley v. Eckerhart, 461 U.S. 424, 429 (1983). <br>          The judgment of the district court is affirmed.  Costs to <br>appellees.</pre>

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