          United States Court of Appeals
                     For the First Circuit

Nos. 06-1448, 06-1449, 06-1450


 HON. PEDRO J. ROSSELLÓ-GONZÁLEZ; LUIS FORTUÑO; MIRIAM RAMÍREZ;
     NANETTE GUEVARA; ARNOLD GIL-CARABALLO; LARRY SEILHAMER;
      JOSÉ SÁNCHEZ; JUAN F. RAMÍREZ; JAVIER RODRÍGUEZ-HORTA,

             Plaintiffs-Appellees/Cross-Appellants,

                                 v.

    ANÍBAL ACEVEDO-VILÁ; AURELIO GRACIA-MORALES, individually
  and in his capacity as President of the Puerto Rico Electoral
  Commission; GERARDO A. CRUZ, individually and in his capacity
      as a member of the Puerto Rico Electoral Commission;
           THE PUERTO RICO ELECTORAL COMMISSION, a/k/a
              The Commonwealth Election Commission,

             Defendants-Appellants/Cross-Appellees,

       SILA MARÍA CALDERÓN, Mayor, individually and in her
              capacity as Governor of Puerto Rico;
          THE INCOMING GOVERNMENT TRANSITION COMMITTEE,

                   Defendants/Cross-Appellees,

   THOMAS RIVERA-SCHATZ, individually and in his capacity as a
  member of the Puerto Rico Electoral Commission; JUAN DALMAU-
     RAMÍREZ, individually and in his capacity as a member of
               the Puerto Rico Electoral Commission,

                           Defendants.


          APPEALS FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

         [Hon. Daniel R. Domínguez, U.S. District Judge]
                             Before

                    Torruella, Circuit Judge,
                  Selya, Senior Circuit Judge,
                    and Lynch, Circuit Judge.


     Jorge Martínez-Luciano, with whom Pedro E. Ortiz-Álvarez,
Johanna M. Emmanuelli-Huertas, and Law Offices Pedro Ortiz-Álvarez
were on brief, for appellants/cross-appellees.
     James F. Hibey, with whom Romeo S. Quinto, Jr., Howrey LLP,
Luis Berríos-Amadeo, Special Counsel, and Cancio, Nadal, Rivera &
Díaz were on brief, for appellees/cross-appellants.
     Susana I. Peñagarícano-Brown, Assistant Solicitor General,
Department of Justice, with whom Salvador J. Antonetti-Stutts,
Solicitor General, Mariana D. Negrón-Vargas, Deputy Solicitor
General, and Maite D. Oronoz-Rodríguez, Deputy Solicitor General,
were on brief, for cross-appellee Sila María Calderón.



                         March 13, 2007




                               -2-
          TORRUELLA, Circuit Judge. The main issue in this case is

whether the district court abused its discretion in refusing to

award attorneys' fees.   See 42 U.S.C. § 1988(b) ("[T]he court, in

its discretion, may allow the prevailing party, other than the

United States, a reasonable attorney's fee as part of the costs

. . . ." (emphasis added)).      After careful consideration, we

determine that the district court did not abuse its discretion, and

we affirm the denial of attorneys' fees to both parties.

                            Background

          On November 2, 2004, a general election was held in

Puerto Rico, pitting Pedro J. Rosselló-González and Luis Fortuño,

candidates on the New Progressive Party ticket for Governor and

Resident Commissioner, against Aníbal Acevedo-Vilá and Roberto

Prats-Palerm, candidates on the Popular Democratic Party ticket.1

After the balloting was conducted, a series of disputes arose

between the parties as to the procedures for issuing and counting

absentee ballots, whether a general recount should be conducted,

and whether certain ballots known as "three-mark split" ballots

should be counted. A more detailed description of these claims may

be found in our first opinion in this case, Rosselló-González v.

Calderón-Serra, 398 F.3d 1 (1st Cir. 2004).




1
    Rubén Berríos-Martínez and Edwin Irizarry-Mora were also
candidates for Governor and Resident Commissioner under the Puerto
Rico Independence Party ticket.

                                -3-
           On    November   10,     Rosselló-González       and    others       (the

"Plaintiffs")2    filed     suit    against    then-Governor        Sila        María

Calderón-Serra,      Acevedo-Vilá,     and    others   (the       "Defendants")3

alleging constitutional violations arising out of the conduct of

the election. Specifically, Plaintiffs asked for a preliminary and

permanent injunction ordering Defendants (1) to perform a full

recount of all of the votes cast in the general election, (2) to

ensure that all persons who had requested absentee ballots had

received them, and to count all absentee ballots received within

thirty days of the injunction, (3) to set a uniform standard for

treatment of split ballots, and (4) to refrain from spending any

money on the transition before the recount was completed.                         On

November 23, the district court ordered that all of the ballots be

recounted and that the disputed "three-mark split" ballots be

segregated and not adjudicated.

           Defendants     brought     an    interlocutory     appeal       of    the

district   court's    recount      order.     We   issued    our    opinion        on

December 15, 2004.4       Id.   We ruled that "the Rosselló complaint


2
   The Plaintiffs also include Fortuño, as well as voters who cast
regular ballots in the election and voters who cast absentee
ballots.
3
  The Defendants also include the Puerto Rico Electoral Commission
(the "CEC"), Aurelio Gracia-Morales (president of the CEC), Gerardo
A. Cruz, Thomas Rivera-Schatz, Juan Dalmau-Ramírez (members of the
CEC), and the Incoming Government Transition Committee (a
government entity).
4
    The opinion was corrected on January 28, 2005.

                                      -4-
alleges the violation of a constitutionally guaranteed right, and

thus, presents a colorable claim under § 1983 for subject-matter

jurisdiction purposes."         Id. at 15.     Nevertheless, we held that

Plaintiffs'     case     "presents     even    less    cause     for   federal

intervention"     than    in   prior   cases   where    we     abstained   from

intervening.    Id. at 18.      Accordingly, we vacated the preliminary

injunction and ordered the district court to dismiss with prejudice

all of Plaintiffs' claims "relating to the adjudication of the

three-mark ballots, and all claims relating to the simultaneous

general canvass/recount issue."          Id.    We also dismissed without

prejudice the claims relating to the absentee ballots and Puerto

Rico Law 197.    Id.

          Both parties moved for attorneys' fees under 42 U.S.C.

§ 1988, and Defendants requested attorneys' fees as a sanction

under 28 U.S.C. § 1927.        The district court referred the matter to

a magistrate judge, who issued a report and recommendation denying

Plaintiffs' fees and granting Defendants' fees.              Plaintiffs filed

an objection to the adoption of the magistrate judge's report and

recommendation.        The district court agreed with the magistrate

judge that Plaintiffs were not prevailing parties and thus were not

entitled to legal fees. However, the district court found that the

absentee ballot claim presented an "enfranchisement claim" that

might be recognized as justiciable under Partido Nuevo Progresista

v. Barreto Pérez, 639 F.2d 825 (1st Cir. 1980), and that Plaintiffs


                                       -5-
received substantial relief on this claim, albeit not backed by

judicial imprimatur.      Furthermore, the district court found that

Plaintiffs had a colorable claim under Puerto Rico law to a

simultaneous recount and canvass, and that such a claim could have

been brought under the supplemental jurisdiction of 28 U.S.C.

§ 1367.    Additionally, the district court noted that a claim that

the split ballots were adjudicated inconsistently (as Plaintiffs

had initially alleged) might have been a valid claim under Bush v.

Gore, 531 U.S. 98 (2000), but that after the litigation commenced,

it appeared that the ballots would be adjudicated consistently.

Accordingly, the district court found that Plaintiffs had stated

colorable, non-frivolous claims, and as such, Defendants were not

entitled to attorneys' fees.

                               Discussion

            We review an award of attorneys' fees for "manifest abuse

of discretion, and 'a reviewing court customarily defers to the

trial   judge,   whose   intimate   knowledge   of   the   nuances   of   the

underlying case uniquely positions him to construct a condign

award.'"    Díaz-Rivera v. Rivera-Rodríguez, 377 F.3d 119, 124 (1st

Cir. 2004) (quoting Gay Officers Action League v. Puerto Rico, 247

F.3d 288, 292 (1st Cir. 2001)).

            We begin by addressing Plaintiffs' request for attorneys'

fees.     Section 1988 states that a plaintiffs may be entitled to

attorneys' fees in the discretion of the district court only if he


                                    -6-
or she is a "prevailing party."        42 U.S.C. § 1988(b).      A party is

a prevailing party "when actual relief on the merits of his claim

materially alters the legal relationship between the parties by

modifying the defendant's behavior in a way that directly benefits

the plaintiff."     Gay Officers Action League, 247 F.3d at 293.

Furthermore, the change in legal relationship must be brought about

by "judicial imprimatur." Buckhannon Board & Care Home, Inc. v. W.

Va. Dep't of Health & Human Res., 532 U.S. 598, 605 (2001).              The

district court found that Plaintiffs were not prevailing parties

because they did not receive any final relief backed by judicial

imprimatur.

           Plaintiffs claim that they received some actual relief on

their claims when the district judge issued orders asserting

jurisdiction over the absentee ballots and directing Defendants to

perform a recount by counting all ballots but segregating and not

adjudicating the disputed three-mark split ballots.           However, we

later reversed the judgment of the district court and dismissed all

of Plaintiffs' claims.         Rosselló-González, 398 F.3d at 18 ("We

VACATE   the   issuance   of    the   preliminary   injunction    with   the

direction that the District Court dismiss with prejudice all claims

in the Rosselló complaint relating to the adjudication of the

three-mark ballots, and all claims relating to the simultaneous

general canvass/recount issue. The District Court is also directed

to dismiss without prejudice the claims relating to the absentee


                                      -7-
ballots, and any alleged violations of Puerto Rico Law 197.").              It

is clear that where an appellate court has reversed a district

court's rulings in favor of plaintiffs and has dismissed their

case, such plaintiffs cannot be "prevailing part[ies]" because any

relief they obtained lacks judicial imprimatur.            See, e.g., Altman

v. Bedford Central Sch. Dist., 245 F.3d 49, 81-82 (2d Cir. 2001)

("[G]iven our reversal of the district court's rulings in favor of

plaintiffs on their First Amendment claims, the district court's

award of attorneys' fees to them as 'prevailing parties' must also

be reversed." (citation omitted)); Pottgen v. Mo. State High Sch.

Activities   Assoc.,   103   F.3d   720,   723-24   (8th    Cir.   1997)   ("A

plaintiff cannot qualify as a prevailing party if the only basis

for his claim of success on the merits is a judgment that has been

reversed on appeal."). Although Plaintiffs initially received some

injunctive relief from the district court, our later vacation of

that injunction and dismissal of all claims precludes Plaintiffs

from now claiming to be "prevailing parties" for the purposes of 42

U.S.C. § 1988(b). Although Plaintiffs argue that they nevertheless

obtained relief when Defendants changed their position on the

absentee ballot and recount issues, those positions were not the

result of judicial imprimatur.        As such, the district court was

correct to deny attorneys' fees to Plaintiffs.

          We now come to Defendants' request for attorneys' fees.

Prevailing defendants in an action brought under 42 U.S.C. § 1983


                                    -8-
may be granted attorneys' fees only "upon a finding that the

plaintiff's   action     was    frivolous,   unreasonable,     or   without

foundation, even though not brought in subjective bad faith."

Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978); see

also Hughes v. Rowe, 449 U.S. 5, 14-16 (1980) (applying the

Christiansburg Garment Co. standard to a 42 U.S.C. § 1983 case).

"In determining whether this standard has been met, the court must

assess the claim at the time the complaint was filed, and must

avoid the post-hoc reasoning that, because the plaintiff did not

ultimately    prevail,    the    claim    must   have   been    frivolous,

unreasonable or without foundation."          Tang v. Dep't of Elderly

Affairs, 163 F.3d 7, 13 (1st Cir. 1998).         Even if the Plaintiffs'

action was frivolous, it is within the discretion of the district

court to deny fees.    Id. at 15 ("[T]he district court still retains

discretion to deny or reduce fee requests after considering all the

nuances of a particular case.").          The district court found that

Plaintiffs' action was not frivolous, and thus exercised its broad

discretion to not award attorneys' fees.

          We have often said that a district court is best placed

to evaluate attorneys' fees requests; the district judge who

presided over the case has "intimate knowledge of the nuances of

the underlying case" which "uniquely positions him" to determine

whether a prevailing defendant is entitled to a fee award.             Gay

Officers Action League, 247 F.3d at 292.           We may overturn the


                                    -9-
denial of attorneys' fees to defendants only if "it clearly appears

that the trial court ignored a factor deserving significant weight,

relied upon an improper factor, or evaluated all the proper factors

(and no improper ones), but made a serious mistake in weighing

them."   Id. at 292-93.

           Here, the district court properly reviewed all of the

factors in this case.     It evaluated the state of the Supreme Court

and First Circuit precedent at the time that Plaintiffs filed their

complaint, looked to the nature and quality of allegations in their

complaint, and appraised the quantum of evidence they submitted.

Defendants can point to no additional factor that the district

court should have considered.        Furthermore, Defendants do not

identify any factor that was improperly considered. Defendants do,

however, contend that existing precedent at the time Plaintiffs'

case was filed did in fact preclude or limit the potential for

success on a number of their claims, and that this was an "improper

weighing" of the factors.

           Even if Defendants can show that some of Plaintiffs'

claims could be construed as unmeritorious, this does not show that

the district court abused its discretion in finding that the

complaint as a whole was not frivolous, and that in any event,

attorneys' fees were not warranted in this case.      To reverse for

manifest abuse of discretion, Defendants must show something other

than disagreement with the ultimate conclusion of the district


                                  -10-
court.    See Cottrill v. Sparrow, Johnson & Ursillo, Inc., 100 F.3d

220, 227 (1st Cir. 1996) ("If writing on a pristine page, we might

have weighed the mix of factors differently -- but that is beside

the point.    Absent a mistake of law or a clear error in judgment --

neither of which is evident here -- we must defer to the trial

court's first-hand knowledge and to its battlefield determination

that the specific facts of this case do not warrant a fee award.").

Accordingly, we can discern no abuse of discretion committed by the

district     court    in     denying    attorneys'     fees     under   §    1988    to

Defendants.

             Finally, defendants suggest that they are also entitled

to attorneys' fees under 28 U.S.C. § 1927.                    A district court is

permitted     to     award     fees    when     an   attorney    "multiplies        the

proceedings in any case unreasonably and vexatiously."                      28 U.S.C.

§ 1927.      As with a petition for fees under § 1988, "we accord

extraordinary deference to a district court's decision to deny

sanctions."          McLane,    Graf,    Raulerson      &   Middleton,       P.A.    v.

Rechberger, 280 F.3d 26, 44 (1st Cir. 2002) (internal quotation

marks and citations omitted).                 As such, we review the district

court's decision to deny attorneys fees under § 1927 for abuse of

discretion.

             The district court correctly identified the proper legal

standard to be applied in this case: § 1927 sanctions may be

awarded when "an attorney's conduct in multiplying proceedings is


                                         -11-
unreasonable and harassing or annoying."      Cruz v. Savage, 896 F.2d

626, 632 (1st Cir. 1990).      Thus, a party may be penalized under

§ 1927 only when it displays a "serious and studied disregard for

the orderly process of justice."        United States v. Nesglo, Inc.,

744 F.2d 887, 891 (1st Cir. 1984) (quoting Kiefel v. Las Vegas

Hacienda, Inc., 404 F.2d 1163 (7th Cir. 1968)).

          The district court did not explicitly state why it was

denying attorneys' fees under § 1927.         However, "while we have

encouraged district courts to give reasons for denying sanctions,

we have not required them to do so" if the reasons for denying

sanctions are apparent from the record.      McLane, Graf, Raulerson &

Middleton, 280 F.3d at 45.     Here, the record supports an implicit

finding   that    Plaintiffs   did   not   vexatiously   multiply   the

proceedings.     Plaintiffs filed a complaint and later amended it.

Plaintiffs and Defendants proceeded to argue vigorously for and

against the relief sought. There is no allegation, for example, of

duplicative motions being filed or repeated refusals to comply with

court orders.    To the contrary, most of Defendants' arguments for

sanctions under § 1927 are based on the alleged frivolity of

Plaintiffs' complaint, arguments which go mainly to Defendants'

request for attorneys' fees under § 1988, not under § 1927.

Accordingly, we do not find that the district court abused its

discretion in denying Defendants' request for § 1927 sanctions

against Plaintiffs and/or their attorneys.


                                 -12-
                            Conclusion

          For the foregoing reasons, we affirm the judgment of the

district court.   All parties shall bear their own costs.

          Affirmed.




                               -13-
