
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 94-1408                      CASA MARIE HOGAR GERIATRICO, INC., ET AL.,                               Plaintiffs, Appellants,                                          v.                            ESTHER RIVERA-SANTOS, ET AL.,                                Defendants, Appellees.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jose Antonio Fuste, U.S. District Judge]                                              ___________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Stahl, Circuit Judge.                                         _____________                              _________________________               Charles S.  Hey-Maestre, with  whom Rick Nemcik-Cruz  was on               _______________________             ________________          brief, for appellants.               Ramon L. Walker Merino for appellees.               ______________________                              _________________________                                   October 28, 1994                              _________________________                    SELYA, Circuit Judge.  In this appeal, Casa Marie Hogar                    SELYA, Circuit Judge.                           _____________          Geriatrico, Inc. (Casa Marie), a residential elder-care facility,          and its principals, Victor Pla, Damaris Rodriguez, Maria Pla, and          Francisco  Monrouzeau  (collectively,  appellants), calumnize  an          order assessing attorneys' fees against them under  the Fees Act,          42 U.S.C.   1988  (1988).  Because the district  court's findings          are not sufficiently complete  to justify a fee award,  we vacate          the order and remand for further proceedings.          I.  BACKGROUND          I.  BACKGROUND                    The history  of this litigation has  been chronicled at          considerable   length  both  in   the  district  court's  initial          decision,  see Casa Marie, Inc.  v. Superior Court,  752 F. Supp.                     ___ ________________     ______________          1152,  1154-60 (D.P.R. 1990) (Casa  Marie I), and  in our opinion                                        _____________          vacating the  judgment entered pursuant thereto,  see Casa Marie,                                                            ___ ___________          Inc.  v. Superior  Court, 988  F.2d 252,  255-58 (1st  Cir. 1993)          ____     _______________          (Casa Marie II).  Because there is scant benefit in repastinating           _____________          well-spaded soil, we touch  only on such matters as  are directly          relevant to the instant appeal.                    Casa Marie's decision to locate its elder-care facility          within  the municipality of Arecibo, Puerto Rico, set in motion a          train of events that led to the present encounter.  Displeased by          Casa Marie's  intrusion into a residential  subdivision, Jardines          de Arecibo (JDA),  a group of neighbors filed  suit in the Puerto          Rico  Superior  Court  on April  18,  1988.    They alleged  that          operation  of the facility  violated municipal  zoning ordinances          and restrictive covenants applicable to the JDA subdivision.                                          2                    After  vigorous skirmishing,  not  relevant  here,  the          superior  court entered  judgment for  the neighbors  and ordered          Casa  Marie to  close its  doors.   When appellants  continued to          operate  in   defiance  of  the  ban,   the  neighbors  initiated          enforcement proceedings.  On October 9, 1990,  the superior court          issued  a  civil  contempt  citation,  ordering  the  arrest  and          imprisonment of Casa Marie's principals if  they failed to comply          with the original judgment within a stated time frame.                    At that point, appellants apparently concluded that the          best defense  was a good offense.   Joined by a  cadre of elderly          persons who resided  at the facility, appellants  brought a civil          action  in the United States  District Court for  the District of          Puerto  Rico  on October  19, 1990.    The plaintiffs  invoked 42          U.S.C.   1983 (1988) and the Fair Housing Act, 42 U.S.C.    3601-          3617 (1993) (FHA), alleging  that the neighbors and the  superior          court had acted in  concert to enforce the zoning  ordinances and          restrictive covenants selectively;  that these efforts were  born          of  a   discriminatory  animus;   and  that,  by   composing  and          orchestrating  this scheme,  the  named  defendants  transgressed          section 1983, the Equal Protection Clause, and the FHA.                    The   district   court   proved  hospitable   to   this          counteroffensive.   It determined that  the neighbors' use of the          local  court  system constituted  "state  action,"  and that  the          elderly  persons  residing   at  the  facility  had   established          violations of both section  1983 and the FHA.   Consequently, the          district court enjoined the neighbors from executing the superior                                          3          court  judgment.   See Casa  Marie  I, 752  F. Supp.  at 1165-69.                             ___ ______________          However,  the  court's hospitality  extended  only  to the  aged;          remarking appellants' participation in the earlier superior court          action  and citing  res judicata  principles, the  district court                              ___ ________          dismissed  their  federal claims  but kept  them  in the  case as          "necessary parties  for the disposition of  th[e] separate action          by the elders."  Id. at 1161.                           ___                    On appeal, a  panel of this court vacated  the district          court's judgment on two  grounds.  First, the panel  discerned no          state action sufficient to undergird the section 1983 claim.  See                                                                        ___          Casa Marie  II, 988 F.2d at 258-60.  Second, the panel ruled that          ______________          federal  law,  including  abstention  doctrines  and  the   Anti-          Injunction Act, 28 U.S.C.   2283 (1988), barred injunctive relief          under  the FHA.  See  Casa Marie II, 988 F.2d  at 260-70.  In the                           ___  _____________          last  sentence of  the opinion,  the panel stated  that "[d]ouble          costs are  awarded against Casa  Marie and  its owners."   Id. at                                                                     ___          270.                    In due course, the neighbors, having  prevailed, sought          upward of $25,000 in counsel fees against appellants (though  not          against  the  other  plaintiffs).   On  February  25,  1994,  the          district  court granted  the neighbors'  application in  part and          awarded fees in the  amount of $18,052.50.  The court  hinged its          order on the Fees Act, restricting the award to time spent on the          section 1983 claim  and disregarding  all time spent  on the  FHA                                          4          claim.  This appeal followed.1          II.  LEGAL PRINCIPLES AFFECTING REVIEW          II.  LEGAL PRINCIPLES AFFECTING REVIEW                    It  is  firmly  settled  in  this  circuit  that,  when          shifting  fees, "the district  court is  expected to  explain its          actions."   Foster v. Mydas Assoc.,  Inc., 943 F.2d 139, 141 (1st                      ______    ___________________          Cir. 1991).  One cardinal  reason for this rule is  to facilitate          appellate review    a goal that is better achieved  when the nisi                                                                       ____          prius  court  produces   a  suitable  set  of   findings  and  an          _____          explication of why  it authored  the particular fee  award.   See                                                                        ___          Peckham v. Continental Cas. Ins. Co., 895 F.2d 830, 842 (1st Cir.          _______    _________________________          1990).  Although such findings need not be  "infinitely precise,"          United States v. Metropolitan  Dist. Comm'n, 847 F.2d 12,  16 n.4          _____________    __________________________          (1st Cir. 1988), they must be reasonably complete  and offer at a          bare  minimum  a "clear  explanation  of  [the district  court's]          reasons for the fee  award," Hensley v. Eckerhart, 461  U.S. 424,                                       _______    _________          437 (1983),  together with  some appropriate "method  and manner"          insight into how the  award was calculated, see Blum  v. Stenson,                                                      ___ ____     _______          465 U.S. 886, 888 (1984).                     We  review fee-shifting orders for abuse of discretion.          See Foley  v. City of  Lowell, 948 F.2d  10, 18 (1st  Cir. 1991);          ___ _____     _______________          Metropolitan  Dist.  Comm'n, 847  F.2d at  14.   While this  is a          ___________________________          deferential  mode  of oversight,  the  standard  is not  entirely          toothless; the court of appeals will find an abuse of discretion,                                        ____________________               1Appellees  have not  cross-appealed the  denial of  fees in          connection with the  FHA claim.  Therefore, the  district court's          order has become final in that respect.                                          5          and  set  aside the  underlying  order, "when  a  material factor          deserving significant weight is  ignored, when an improper factor          is  relied upon, or  when all proper and  no improper factors are          assessed,  but  the court  makes  a serious  mistake  in weighing          them."  Foster, 943 F.2d at  143, quoting Independent Oil & Chem.                  ______                    _______ _______________________          Workers of  Quincy, Inc. v.  Procter & Gamble Mfg.  Co., 864 F.2d          ________________________     __________________________          927, 929 (1st Cir. 1988).          III.  ANALYSIS          III.  ANALYSIS                    Appellants advance two interrelated arguments in aid of          their contention  that the  lower  court stumbled.   First,  they          claim  that the trial judge  abused his discretion  by relying on          the appellate panel's imposition of double costs as a dispositive          factor  with respect  to whether  fees should  be awarded  in the                                                                     ______          district court.  Second,  they asseverate that the facts  of this          ______________          case  do not warrant a  fee award under 42 U.S.C.    1988 (or, at          the  least, that  the judge  failed to  find facts  sufficient to          underpin such an award).2                                          A                                          A                                        ____________________               2In their brief, appellants also bemoan the district court's          ostensible failure  to  consider  their  financial  condition  in          imposing a  fee award.  Although  we have held that  "an award of          attorney's  fees to a prevailing defendant  must not be oblivious          of a  plaintiff's financial  capacity," Charves v.  Western Union                                                  _______     _____________          Tel.  Co.,  711  F.2d  462,  465  (1st  Cir.  1983),  appellants'          _________          importuning comes too late.  A party desirous of holding down the          size of a fee award by reason of limited resources has the burden          of  raising  the  point  in  a  timely  fashion  and   thereafter          establishing his financial condition.  See Gibbs v. Clements Food                                                 ___ _____    _____________          Co., 949  F.2d 344, 345 (10th Cir. 1991).  In the district court,          ___          appellants disregarded these requirements.  Since it is our usual          policy to  eschew consideration  of points not  seasonably raised          below, see, e.g., Clauson  v. Smith, 823 F.2d 660,  666 (1st Cir.                 ___  ____  _______     _____          1987), we deem appellants to have waived the argument.                                          6                    In  civil  rights cases,  fee-shifting  in  favor of  a          prevailing plaintiff  is the rule, whereas  fee-shifting in favor          of  a  prevailing defendant  is the  exception.   Thus,  though a          prevailing plaintiff is presumptively entitled to fee-shifting in          such a  case, see, e.g., Hensley,  461 U.S. at 429,  a prevailing                        ___  ____  _______          defendant  is entitled  to  similar  largesse  only  if  she  can          establish  that  the  plaintiffs'  suit  was  totally  unfounded,          frivolous,  or otherwise  unreasonable, see  Hughes v.  Rowe, 449                                                  ___  ______     ____          U.S. 5, 14 (1980);  Christiansburg Garment Co. v. EEOC,  434 U.S.                              __________________________    ____          412, 421  (1978); Foster,  943 F.2d at  145-46.  The  court below                            ______          accurately rehearsed this standard in its  unpublished memorandum          order.   But  the court  compressed into  a single  paragraph its          discussion  of whether  appellants'  section 1983  claim sank  to          these depths.  The court wrote:                    In light of [Christiansburg and its progeny],                                 ______________                    no  relief  is  available  to  the defendants                    unless  we find  that plaintiffs'  action was                    frivolous.    Defendants'  attorneys  suggest                    that the imposition  of double  costs on  the                    owners  of  Casa  Marie   on  appeal  is   an                    indication  of  the meritlessness  of [their]                    action.   Although the  Court of  Appeals did                    not explain its reasoning, we assume that the                    imposition  of the  sanction of  double costs                    reflects a finding that the case lacked merit                    as to these particular plaintiffs.   See also                                                         ___ ____                    Eastway Constr.  Corp. v.  City of New  York,                    ______________________     _________________                    762 F.2d 243, 252 (2d Cir. 1985).          After  writing this  paragraph,  the court  immediately  switched          gears and began discussing why fee-shifting was not warranted  in          connection  with the FHA claim.   Then, without  returning to the          section  1983  claim or  offering  additional  insights into  its          reasons  for pulling  the  trigger of  the  Fees Act,  the  court                                          7          awarded  a sum  certain.  Thus,  when all  is said  and done, the          district court made  specific mention  of only one  factor    the          assessment of  double  costs  on  appeal    as  a  particularized          justification for its fee award.                    Appellants assail  the trial judge's  reliance on  this          solitary factor as a bellwether for shifting fees in the district                                                            _______________          court.   They  advocate a bright-line  rule to the  effect that a          _____          trial court may  not consider an appellate court's  imposition of          sanctions in determining frivolity for the purpose of a fee award          in  favor of a prevailing defendant under  42 U.S.C.   1988.  Any          such  consideration, they contend,  would contravene  the Supreme          Court's  mandate that a district court  considering a fee request          from a  prevailing defendant  should  "resist the  understandable          temptation to engage in post hoc reasoning."  Christiansburg, 434                                                        ______________          U.S.  at 421-22.  The appellees also hawk a bright-line rule, but          they  propose  drawing  the  line  at  a  much  different  angle.          Specifically,  appellees would  have  us hold  that an  appellate          court's  imposition of double costs is tantamount to a finding of          frivolity, and that, therefore, it is always proper for the trial          court  to  rely  on  such  an  impost  as  a  factor in  awarding          attorneys' fees to a prevailing defendant.                    To be sure,  bright lines are  sometimes useful in  the          law.  But for all their seductive allure, they have a tendency in          certain situations  to blind courts and lawyers to the subtleties          inherent  in the problems to which they  are addressed.  So it is          here.   We are wary  of the glare in  this context and  refuse to                                          8          adopt   either  of   the  bright-line   rules  proposed   by  the          protagonists.                    In lieu of  a rigid  rule, we prefer  to recognize  the          relevant reality:   that the significance of an appellate court's          dispensation   of   double   costs   to   the   district  court's          determination  of frivolity  will vary  case by case.   Appellate          sanctions are  appropriately awarded when an appellant prosecutes          an  appeal "without  any realistic  hope  of prevailing."   Ochoa                                                                      _____          Realty Corp.  v. Faria, 815  F.2d 812, 818  (1st Cir. 1987).   In          ____________     _____          some situations,  a determination  that an appeal  was foredoomed          may  bear  no  relationship  to   the  question  of  whether  the          underlying  action  was  frivolous  when commenced.3    In  other          situations,  however, a  determination that  an appeal  was taken          against all odds may bear directly upon, or  at least inform, the          district  court's judgment  as to  the frivolity  of the  suit ab                                                                         __          initio.4   To enable the  district court to  tell the difference,          ______                                        ____________________               3Consider  the example  of a  tort action  hinging  upon the          credibility of witnesses and involving evaluative judgments about          the care (or lack of care) exhibited by the protagonists.  Though          such cases are  often fairly debatable  when brought (and,  thus,          not frivolous), they may be so factbound that an appeal of a jury          verdict  on liability might well be deemed frivolous.  See, e.g.,                                                                 ___  ____          Levesque  v. Anchor Motor Freight,  Inc., 832 F.2d  702 (1st Cir.          ________     ___________________________          1987); see  also La  Amiga del Pueblo,  Inc. v. Robles,  937 F.2d                 ___  ____ ___________________________    ______          689, 692  (1st Cir.  1991) (holding  that an  appeal from  a jury          verdict  was frivolous  given  conflicting evidence  and lack  of          preserved  objections,   although  the  trial   itself  may  have          presented fairly debatable questions).               4Consider a  case in which the district court grants summary          judgment against a plaintiff and the appellate court, applying de                                                                         __          novo   review,  determines  that   the  plaintiff's   claims  are          ____          frivolous.  Such  a case  may well have  been totally  groundless          when  brought, and  the appellate  court's conclusion  may inform          that determination, especially if neither the known facts nor the                                          9          the appellate court must furnish, or the record must adumbrate, a          reasoned explanation of why the sanction was levied.                    Assuming for argument's  sake that, as appellees  would          have it,  the panel in Casa  Marie II intended double  costs as a                                 ______________          sanction,5  this action,  without  further explication,  sheds no          light on the question  of whether appellants' section 1983  claim          was unfounded or frivolous when originally raised in the district          court.  Because the appellate panel  kept its own counsel and the          record does not  suggest an  obvious reason for  its action,6  it          follows  that  the district  court's  reliance  on the  appellate          sanction as a proxy for  a finding of frivolity was improper.   A                                                                          _          fortiori, such  reliance cannot comprise  an adequate  substitute          ________                                        ____________________          law  changed materially  during the  pendency of  the litigation.          See, e.g., Raskiewicz  v. Town of  New Boston, 754  F.2d 38  (1st          ___  ____  __________     ___________________          Cir.), cert. denied, 474 U.S. 845 (1985); see also Sierra Club v.                 _____ ______                       ___ ____ ___________          Secretary  of  Army,  820  F.2d   513,  518-20  (1st  Cir.  1987)          ___________________          (upholding district court award of fees under EAJA where district          court, on remand,  had relied  on a prior  appellate decision  in          making its determination that government's  original position was                                                      ________          not substantially justified).               5In their  attack on the district  court's order, appellants          assert that,  since the  panel  provided no  explanation for  the          impost, it is at least  arguable that double costs were merely  a          special  compensatory  assessment under  Fed.  R.  App. P.  39(a)          rather than a sanction.   We find this argument  to be ingenious,          but  not particularly persuasive.   In any event,  even if double          costs  were intended as a  sanction, the district  court's use of          the datum cannot stand.  See infra.                                   ___ _____               6Indeed, Casa Marie and its principals remained  in the case          not of their own  volition, but because the district  court opted          to  retain  jurisdiction   over  them   after  dismissing   their          complaint.   See Casa Marie I, 752 F.  Supp. at 1161.  They filed                       ___ ____________          no notice of appeal, and to the extent they appeared at all, they          appeared  as  appellees,  not   appellants,  in  Casa  Marie  II.                                                           _______________          Consistent  with this  circumscribed role,  they neither  filed a          brief nor presented oral argument in this court.                                          10          for the  concrete findings ordinarily demanded  as a prerequisite          to a fee-shifting order.  See Peckham, 895 F.2d at 842.                                    ___ _______                                          B                                          B                    The  neighbors have one last string to their bow.  They          maintain  that, putting to one side its misplaced reliance on the          award of  double costs, the district court made enough additional          findings to prop  up a conclusion  that appellants' section  1983          claim  was frivolous when brought.  In this vein, appellees argue          that the  district court's  cryptic citation to  Eastway, coupled                                                           _______          with  its earlier  allusion to the  fact that  appellants' claims          originally  were dismissed on  res judicata  grounds,7 constitute                                         ___ ________          "findings" sufficient to ground the fee award.                    We  do not  think  that the  district court's  rescript          permits so generous  a reading.   While the  court's citation  to          Eastway may perhaps hint that the  fee award was based in part on          _______          the  res  judicata bar  that  blocked  appellants' federal  court               ___  ________          action  from the  start,8  any such  indication is  substantially          outweighed by  the fact that  the district court's  only explicit          reference to  res judicata  actually cuts against  the neighbors'                        ___ ________                                        ____________________               7This is  by all  odds a  slender  reed.   The court  simply          wrote, in describing the  travel of the case, that  "[t]he owners          of  the facility were dismissed on res judicata grounds, but were                                             ___ ________          retained as necessary parties."               8In  Eastway,  the  Second  Circuit  reversed  the  district                    _______          court's  denial of attorneys' fees to a prevailing defendant in a          civil  rights  action, finding  it "particularly  noteworthy that          [the plaintiff] had  already challenged the City's  policy in the          state  courts,  and  had  been unsuccessful,"  and  stating  that          "[t]hese  proceedings should  at  least have  put [plaintiff]  on          notice of  the possibility  that its adversary  might be  awarded          counsel fees."  762 F.2d at 252 (citation omitted).                                          11          hypothesis that the res judicata dismissal provided the basis for                              ___ ________          the fee award.  We explain briefly.                    The district  court gave  two reasons for  its decision          not to bestow fees in connection with the FHA claim.   First, the          Court  concluded  that it  could not  classify  the FHA  claim as          frivolous  because "the  First Circuit  found that  [the district          court] should have abstained in favor  of the state proceedings,"          and, therefore,  made "no holding  on the  merits . .  . in  that          claim."  Second, the court noted that, because appellants' claims          in  federal court  were barred by  res judicata,  appellants were                                             ___ ________          only retained in  the action  as necessary parties.   Relying  on          "these  reasons," the court denied counsel fees on the FHA claim.          Thus,  it appears that the  district court used  the res judicata                                                               ___ ________          dismissal  of appellants' FHA  claim as  a justification  for not                                                                        ___          awarding  attorneys' fees  on that  claim.9  Presumably,  what is          sauce for  the goose is also  sauce for the gander:   because the          district court  dismissed appellants'  section 1983 claim  on the          very same res judicata grounds, the record strongly suggests that                    ___ ________          the  court  could  not  have  believed  this  circumstance  as  a          justification  for   a  fee  award.10     We  can   only  assume,          therefore,  that  the  court   awarded  attorneys'  fees  to  the                                        ____________________               9We  take  no  view  of  the  correctness of  this  holding.          Rather, we  cite to  it in  an effort to  elucidate the  district          court's thinking.               10This  logic seems especially  compelling when one realizes          that appellants' involuntary retention in the case was a sequelae          not  only of the  dismissal of their  FHA claim, but  also of the          dismissal of their section 1983 claim.                                          12          neighbors on the section  1983 claim for some other  reason, say,                                                        _____          because the court of appeals awarded double costs.                    We need not beat this drum too long or too loudly.  The          crux of the matter  is not whether the district  court "could" or          "might" have intended to give weight to the circumstances leading          to the  res judicata dismissal  of the section 1983  claim.  What                  ___ ________          counts is that the record is fuliginous on this point.  Appellate          review of a fee award must comprise more than a shot in the dark.          When,  as now,  the  district court's  fee-shifting order  leaves          critical questions unanswered, the order cannot stand.                                          C                                          C                    Although the  district court's fee-shifting  order must          be vacated, the course  of future proceedings is open  to debate.          Appellants invite us  to decide  here and now  that no  plausible          rendition  of the record will  sustain a fee-shifting  order.  We          decline the invitation.   Once we  discount the district  court's          improper reliance on  the earlier imposition of double  costs, we          are left  to guess about the district court's thinking.  Here, as          in Foster, plunging  ahead would be  tantamount to "usurping  the             ______          district court's  function, [and]  depriving  ourselves, and  the          parties, of the insights of the judicial officer  most intimately          familiar with the  case and its  nuances."   Foster, 943 F.2d  at                                                       ______          144.  We will not participate in such a speculative exercise.                      For these  reasons, we conclude that the course of both          fairness and prudence is to remand  for further consideration of,          and findings  appertaining to,  the application for  an award  of                                          13          fees in  respect  to the  section  1983 claim.    We intimate  no          opinion as to appellees' entitlement vel non to such fees.                                               ___ ___                    Vacated and  remanded.    No fees  or  costs  shall  be                    Vacated and  remanded.    No fees  or  costs  shall  be                    _____________________     _____________________________          awarded to  any party, under 42  U.S.C.   1988 or  otherwise, for          awarded to  any party, under 42  U.S.C.   1988 or  otherwise, for          _________________________________________________________________          work in connection with this appeal.          work in connection with this appeal.          ___________________________________                                          14
