          United States Court of Appeals
                      For the First Circuit

No. 12-2002

                  GLADYS GARCÍA-RUBIERA ET AL.,

                     Plaintiffs, Appellants,

                                v.

            LUIS G. FORTUÑO, Governor of Puerto Rico;
          JUAN CARLOS PUIG-MORALES, Treasury Secretary,

                      Defendants, Appellees.


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

          [Hon. Gustavo A. Gelpí, U.S. District Judge]


                              Before

                        Lynch, Chief Judge,
              Torruella and Kayatta, Circuit Judges.


          Antonio J. Amadeo-Murga for appellants.
          Susana I. Peñagarícano-Brown, Assistant         Solicitor
General, Department of Justice, for appellees.



                         August 16, 2013
              KAYATTA, Circuit Judge.        As this court has detailed in

prior opinions, Puerto Rico law has operated since 1995 in a manner

that effectively causes hundreds of thousands of motor vehicle

owners to pay twice for liability insurance, once through a

Commonwealth-run plan, and once in the private market.                 García-

Rubiera v. Calderon ("García-Rubiera I"), 570 F.3d 443 (1st Cir.

2009); García-Rubiera v. Fortuño ("García-Rubiera II"), 665 F.3d

261 (1st Cir. 2011).         Under this more-or-less duplicate premium

regime, Commonwealth law declared motor vehicle owners to be

entitled to a refund of the excess premiums paid.             P.R. Laws Ann.

tit. 26, §§ 8051, 8055(n).              The procedures for seeking such

refunds, however, were complicated, varied, and, most importantly,

bereft of any meaningful notice; so much so as to be, in effect,

hidden.      See García-Rubiera II, 665 F.3d at 273 (no notice mailed,

nothing      posted   online,   no    posting   in   any   readily   available

publication, and no writing subject to easy discovery even by those

who go in person to the pertinent government office).                    Large

amounts of unclaimed refunds accumulated. Beginning in 2002, every

two years the Commonwealth placed the unclaimed refunds with its

Treasury Secretary to be held "in trust," with the proviso that, if

not   claimed     within    five   years,    the   funds   escheated   to   the

Commonwealth without notice to the owners of the funds.

              In García-Rubiera I, this court held that vehicle owners

who   paid    twice   for   private    and   Commonwealth-issued     insurance


                                       -2-
possess a constitutionally protected property interest in those

duplicate premiums.           570 F.3d at 452, 257.        In García-Rubiera II,

we concluded that the Commonwealth's failure to notify affected

vehicle     owners       of   their   reimbursement    rights     amounted    to   a

violation of the procedural due process guarantees of the Fifth and

Fourteenth Amendments.             665 F.3d at 274-76.      We held that "under

these conditions the Commonwealth is required to give individual

notice     to    insureds     owed    reimbursement   to    the   maximum    extent

feasible," and we instructed the district court to resolve factual

issues as to "feasibility" on remand.               Id. at 276.      We also held

that "the Commonwealth must publish Procedure 96, in full, online

and in other places readily accessible by the public." Id. at 277.

                On remand, the district court ordered the Commonwealth to

notify individual vehicle owners of their reimbursement rights, to

publish information regarding the reimbursement procedure in two

newspapers, and to allow at least 120 days for vehicle owners to

claim the reimbursements to which they are entitled.                 The district

court's order represents a marked improvement of the status quo.

Even so, the relief ordered by the district court fails to satisfy

the minimum requirements of procedural due process under the Fifth

and Fourteenth Amendments.             The Commonwealth has in its possession

vehicle-specific information without which many insured owners will

not   be   able     to    obtain     the   reimbursements   to    which   they   are

entitled, yet the district court's order does not require the


                                           -3-
Commonwealth to release this information to vehicle owners.

Moreover, although the district court's order only provides for a

120-day      grace    period       in     which      vehicle    owners       can        claim

reimbursement        before      their    premium      payments    escheat         to    the

Commonwealth, the Commonwealth's counsel conceded at oral argument

that a one-year grace period would be more appropriate in this

context.     And while the district court ordered the Commonwealth to

publish two notices--one in an English-language newspaper and one

in a Spanish-language newspaper--alerting vehicle owners of their

reimbursement rights, the district court did not engage in the

required balancing analysis to determine whether one-time notice in

two   newspapers       is     sufficient       to    satisfy    the       Commonwealth's

constitutional obligations.

             Accordingly, we will remand this case to the district

court once again, this time to allow it to craft with the benefit

of further guidance an injunction that more fittingly remedies the

Commonwealth's constitutional violations.                      In the meantime, we

order that no duplicate premiums shall escheat to the Commonwealth

until   it    has    established         and    complied   with       a   reimbursement

procedure which meets the basic requirements of constitutional due

process.

             Finally,       we   reverse       the   district   court's       denial      of

plaintiffs' request for an award of interim attorneys' fees.                            This

lawsuit is now entering its twelfth year. Our decision today means


                                           -4-
that many more months may elapse before a judgment is final.

Throughout this extended period, plaintiffs' attorney has sought to

vindicate the constitutional rights of hundreds of thousands of

vehicle    owners   across   Puerto   Rico.      Plaintiffs   have   already

prevailed in this court on the merits of their procedural due

process claims.      Accordingly, as prevailing parties in a civil

rights action, plaintiffs are statutorily entitled to an award of

attorney's fees from the Commonwealth.            On remand, the district

court should make such an award in an amount determined by the

court to be sufficient to cover the compensable work performed from

the beginning of this action through the date of this opinion.

                              I.   Background

             For a detailed description of the background of this case

prior to 2012, we refer the reader to our opinions in García-

Rubiera I and II.       We note here only that the rulings in those

opinions are not subject to reconsideration on this third appeal.

United States v. Matthews, 643 F.3d 9, 13 (1st Cir. 2011)("[A]

legal decision made at one stage of a criminal or civil proceeding

should remain the law of that case throughout the litigation,

unless and until the decision is modified or overruled by a higher

court" (quoting United States v. Moran, 393 F.3d 1, 7 (1st Cir.

2004))).

             On remand following our decision in García-Rubiera II,

plaintiffs     sought    a    permanent       injunction   requiring     the


                                      -5-
Commonwealth1 to send individualized notices to all vehicle owners

who are entitled to reimbursements.           Plaintiffs requested that the

notices be sent by certified mail and that each notice state the

amount of the refund (including interest) to which the owner is

entitled, the license plate and vehicle identification number

("VIN") associated with each vehicle for which a duplicate premium

was   paid,    and   basic     information    regarding      the    corresponding

insurance     policy.2       Plaintiffs      also   sought    to    require    the

Commonwealth to publish a list of the vehicle owners entitled to

reimbursement in two daily newspapers of general circulation once

a week for two consecutive weeks.

              For vehicle owners whose premiums had not yet been

transferred      from    the     Asociación     Conjunta      del     Seguro    de

Responsabilidad Obligatorio ("JUA") to the Treasury Department,

plaintiffs' proposed injunction would allow the owners at least 120

days in which to seek reimbursement from the JUA.                      After the

transfer of funds from the JUA to the Treasury Department (and for

vehicle owners whose premiums have previously been transferred to



      1
       Named Defendant Luis G. Fortuño is the former governor of
Puerto Rico. Named Defendant Carlos Puig-Morales is the former
treasury secretary.
      2
       The text of the plaintiffs' proposed injunction refers to
"the insurance policy description," without clarifying what
specific details should be included in this description.       It
appears from Plaintiffs' other filings, however, that that they
are seeking the name of the insurance company, the policy number,
the policy commencement date, and the policy expiration date.

                                      -6-
the Treasury), plaintiffs' proposed injunction would allow an

additional five-year grace period during which the vehicle owners

could file for reimbursement. Plaintiffs sought the appointment of

an independent monitor to ensure compliance with the injunction.

            Plaintiffs also filed a motion in district court for an

award of attorney's fees.           The motion sought an interim fee award

of $1.5 million and a final award equal to 25 percent of "the

common    fund    and    interest   created   by   [plaintiffs'    attorney's]

efforts."        Plaintiffs suggested that the "common fund" should

include    not    only    the   premium    payments   that   are    ultimately

reimbursed, but all duplicate premium payments held by the JUA or

transferred to the Treasury (apparently without regard to whether

these monies are ever claimed by the vehicle owners).               Plaintiffs

estimated that this fund amounted to more than $180 million before

interest--in which case plaintiffs' percentage-of-funds proposal

would allow their attorney to recover an award of at least $45

million.

            The district court referred the matter of injunctive

relief to a magistrate judge, whose report and recommendation the

court ultimately adopted with only minor modifications.                    See

García-Rubiera v. Fortuño, 873 F. Supp. 2d 421 (D.P.R. 2012).              The

district court's permanent injunction required the Commonwealth to

compile the names and addresses of all motor vehicle owners who

paid a duplicate premium that has not been refunded, and to send


                                        -7-
individual notices by mail3 to all such persons.    Id. at 426.   The

district court further ordered that each notice include (1) the

fact that the vehicle owner is entitled to a refund; (2) the date

that the vehicle owner's premium was or will be transferred to the

Treasury; (3) the text of Procedure 96; and (4) the relevant

portions of Law 230.4    Id.   However, the district court did not

require the notices to include the amounts of the refunds, the

license plate numbers and VINs associated with each refund, or any

information regarding the insurance policies corresponding to each

refund.   Id.

           The district court also ordered the JUA to publish notice

once in an English-language newspaper of general circulation and

once in an Spanish-language newspaper of general circulation, and

to make the text of Procedure 96 freely available online and at the

government offices that collect JUA premiums.      Id.   According to

the permanent injunction, the Commonwealth must allow at least 120

days from the time of notice before any additional premiums are


     3
      The magistrate judge's report and recommendation left to the
Commonwealth the decision of whether to mail notice by certified or
regular mail.   García-Rubiera, 873 F. Supp. 2d at 427-28.      The
district court's injunction simply referred to "mail" and "mailing"
and therefore also implicitly left the decision to the
Commonwealth. Plaintiffs have not appealed this portion of the
ruling so we do not review it.
     4
       As our previous opinions explain in greater detail, Law    230
is the name of the statute enacted on September 11, 2002          and
codified at P.R. Laws Ann. tit. 26, § 8055(l) that established    the
system of transferring unclaimed duplicate premiums to            the
commonwealth. García-Rubiera II, 570 F.3d at 449.

                                -8-
transferred from the JUA to the Treasury.            Id.   For premiums that

have already been transferred to the Treasury (including those that

have        already   escheated   to   the    Commonwealth),   the   permanent

injunction provided a 120-day grace period during which vehicle

owners can file their reimbursement claims.5               Id. at 426.     The

district court retained jurisdiction over the matter itself but

denied plaintiffs' request for an independent monitor. Id. at 423,

428-29.

                With regard to attorney's fees, the district court issued

a one-sentence order on July 9, 2012, denying plaintiffs' request

that the fee award be calculated on a percentage-of-funds basis.

The July 9 order stated that the court would calculate attorney's

fees according to the lodestar method, which is based on the number

of hours that plaintiff's attorney has devoted to the case and the

attorney's hourly rate.           The court entered another one-sentence

order on September 19, 2012 denying plaintiffs' motion for interim

fees.

                Plaintiffs have filed timely appeals from the district

court's permanent injunction order and from the court's order

regarding interim attorney's fees.            We have jurisdiction under 28


        5
       Law 230 already provides for a five-year waiting period
between the time that premiums are transferred from the JUA to the
Treasury and the time that those funds escheat to the Commonwealth.
P.R. Laws tit. 26 § 8055(l). The permanent injunction would not
narrow that five-year window; the 120-day grace period would only
apply to funds that have already escheated to the Commonwealth or
that are scheduled to escheat within four months of the order.

                                        -9-
U.S.C. § 1292(a)(1). See, e.g., United States v. Mass. Mar. Acad.,

762 F.2d 142, 147 (1st Cir. 1985); see also Marathon Oil Co. v.

United States, 807 F.2d 759, 763-764 (9th Cir. 1986).

                                 II.   Analysis

           On appeal, plaintiffs argue that the injunctive relief

ordered by the district court is not sufficient to remedy the

Commonwealth's constitutional violations.           Plaintiffs also argue

that the district court abused its discretion by denying their

motion for interim attorney's fees and by refusing to announce that

it would follow the percentage-of-funds approach in calculating the

ultimate fee award.        After setting out the common standard of

review that governs both the injunctive-relief and attorney's-fee

elements of the appeal, we consider these arguments in turn.

A.   Standard of review

           Our cases recognize that a district court is "in the best

position to tailor the scope of injunctive relief to the its

factual findings"; accordingly, our review of the terms of an

injunction    is   for   abuse    of   discretion   only.   Vaqueria   Tres

Monjitas, Inc. v. Irizarry, 587 F.3d 464, 487 (1st Cir. 2009); see

also Hiller Cranberry Prods., Inc. v. Koplovsky, 165 F.3d 1, 4 (1st

Cir. 1999).    We apply the same abuse-of-discretion standard when

reviewing a district court's calculation of attorney's fees.

Pearson v. Fair, 980 F.2d 37, 44 (1st Cir. 1992).           When applying

the abuse-of-discretion standard, we review the district court's


                                       -10-
underlying      factual    findings       for    clear    error     and    its    legal

conclusions de novo.            Global NAPS, Inc. v. Verizon New Eng., Inc.,

706 F.3d 8, 12 (1st Cir. 2013).              A mistake of law embedded in an

injunction      or   a    fee    award    always    constitutes       an     abuse    of

discretion. In re Volkswagen & Audi Warranty Extension Litig., 692

F.3d 4, 13 (1st Cir. 2012).

B.      Challenges to the scope and substance of the injunctive remedy

             Plaintiffs raise five distinct objections to the district

court's permanent injunction order.                First, they argue that the

class should have been expanded to encompass vehicle owners who

double-paid for insurance in the years 2008 to 2012.                      Second, they

argue    that   vehicle     owners       whose   premiums     have    already       been

transferred from the JUA to the Treasury should have five years

within which to file for reimbursement, rather than the greater of

120 days or five years minus the amount of time that has run from

the transfer, as provided by the district court's order.                         Third,

plaintiffs argue that the individual notices mailed to vehicle

owners    should     include      the    license   plate      numbers,      VINs,    and

insurance    policy      numbers     corresponding       to   the    class    members'

duplicate premium payments.              Fourth, plaintiffs argue that the

permanent injunction's provisions regarding newspaper notice are

insufficient to apprise vehicle owners of their reimbursement

rights.     Fifth, and finally, plaintiffs argue that the district

court ought to have appointed an independent monitor to ensure the


                                          -11-
Commonwealth's       compliance       with    the     permanent      injunction.     We

consider each of these arguments in turn.

        1.     The class definition

               Plaintiffs     argue    that     "in    the     interest of judicial

economy," the certified class of unreimbursed vehicle owners who

made duplicate premium payments in the 1997-2007 period should be

extended       to   include     vehicle       owners      who     are    entitled    to

reimbursement for duplicate premiums paid in the years 2008 to

2012.        The parties do not claim that the Commonwealth's conduct

changed in any material way during the 2008-2012 period:                      vehicle

owners who acquired or renewed their registrations during the

latter timeframe were automatically charged for coverage under the

Commonwealth's insurance plan unless they produced proper proof of

private insurance, and the Commonwealth failed to post Procedure 96

online or to make it available at the offices where JUA premiums

are collected until early 2013. Moreover, the Commonwealth made no

apparent       effort   to   inform    vehicle        owners    of   their   right   to

reimbursement during the 2008-2012 period.

               The Commonwealth asserts that plaintiffs never moved in

the district court to expand the class definition (as provided for

by Fed. R. Civ. P. 23(c)(1)(C)).                 To this argument, plaintiffs

offer no response.           Since we are remanding the case for further

consideration anyhow, we therefore leave the question of whether




                                         -12-
and how to expand the class definition to the district court on

remand.6

     2.   The time period within which class members may seek
     reimbursement

             In his report and recommendation to the district court,

the magistrate judge emphasized that "the Commonwealth has a valid

interest in making a final disposition of the[] funds" that, under

Puerto Rico's Law 230, have already escheated to the Commonwealth.

García-Rubiera, 873 F. Supp. at 426.           Accordingly, the magistrate

judge advised that the district court set a 120-day grace period

during which vehicle owners whose duplicate premium payments have

already     escheated        to   the   Commonwealth   can       submit    their

reimbursement claims.         The magistrate judge explained that "[t]he

120-day period is the same length of time plaintiffs suggest for

giving     notice   of   a    premium    transfer   from   the    JUA     to   the

Commonwealth, and should therefore be a reasonable amount of time

for insureds to prepare and submit requests for reimbursement."

Id. The district court followed this recommendation without adding

any reasons of its own for the 120-day deadline.             Id. at 421-22.




     6
       The Commonwealth suggests that we preemptively dispose of
this issue on the grounds that an expansion of the class would
entail further class notice. This is not so, as the class here is
a Rule 23(b)(2) class. See Fed. R. Civ. P. 23(c)(2) ("For any
class certified under Rule 23(b)(1) or (b)(2), the court may direct
appropriate notice to the class." (emphasis added)); Wal-Mart
Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2558 (2011) (notice not
mandatory for Rule 23(b)(2) class).

                                        -13-
             Plaintiffs argue that the clock should be reset so that

class members have the full five-year grace period they would have

enjoyed had notice been given as it should have been given.

Although the plaintiffs' argument has a certain logic to it, we are

not persuaded that a five-year grace period is required as part of

the remedy for the constitutional violation.           While Puerto Rico's

Law 230 provides for a five-year period, "a failure to implement

state law . . . in itself does not violate the Due Process Clause."

Hoffman v. City of Warwick, 909 F.2d 608, 621 (1st Cir. 1990).

             The aim here is not to restart a statutory grace period

that was part of a flawed scheme in which no meaningful notice was

given.    The aim, rather, is to provide notice and a reasonable

opportunity to act on that notice. See United States v. Locke, 471

U.S.   84,   108   (1985)   (constitutionally    adequate      process   where

legislature     "afford[s]    those    within   the    statute's    reach    a

reasonable opportunity both to familiarize themselves with the

general      requirements    imposed     and    to    comply     with    those

requirements"); see also Hodel v. Irving, 481 U.S. 704, 729 (1987)

(Stevens, J., concurring in the judgment).            While five years is

certainly far more than is necessary, the Commonwealth has not

shown that a 120-day grace period would give vehicle owners whose

premiums have been transferred to the Treasury a "reasonable

opportunity" to avoid the escheat of those funds.           As noted above,

a vehicle owner submitting a reimbursement claim under Procedure 96


                                      -14-
must, inter alia, obtain a certification from her private insurance

company that payment was received and that neither the company nor

the consumer has been reimbursed to date.                In some cases, the

insurance companies will be asked to certify that payments were

received more than one-and-a-half decades ago.

             In sum, while we cannot say that due process demands a

five year grace period, we cannot find any basis in the record for

a finding that a 120-day grace period provides a "reasonable

opportunity"     for   vehicle    owners    to   avoid   escheat.      At     oral

argument, the Commonwealth's counsel said that it was willing to

allow all vehicle owners at least one year in which to file for

reimbursement.     On remand, the district court should determine

whether a grace period of not less than one year from the mailing

and publication of notice as proposed by the Commonwealth suffices

for due process purposes.        If the district court is persuaded that

private    insurance     companies      will     be   able   to     respond     to

certification requests well within that window, then a grace period

of no less than one year should be sufficient to give vehicle

owners a reasonable opportunity to protect their property interest

in unreimbursed funds.      If a one-year grace period does not allow

enough    time   for   private    insurance      companies   to   process      the

anticipated certification requests, then the district court in its

discretion    should    fashion    an   alternative      approach    that     will




                                     -15-
reasonably ensure a reasonable opportunity to avoid loss of the

funds.

     3.      The inclusion of information that will put the recipients
             in a position to seek reimbursement

             While the district court ordered the Commonwealth to mail

individual     notices   to   vehicle     owners    who    are   entitled    to

reimbursement, notice required by the court only includes: (1) a

statement that the owner is entitled to a refund; (2) the date of

the transfer of the premium from the JUA to the Treasury; (3) the

text of Procedure 96; and (4) the provisions of Law 230 regarding

escheat.     873 F. Supp. 2d at 422.          In this respect, the district

court adopted the Commonwealth's proposal.           The magistrate judge's

report explained that the Commonwealth's proposal "tracks" the

notice described in García-Rubiera II and that the plaintiffs have

not demonstrated that the Commonwealth can "readily correlate"

additional information--such as the license plate numbers, VINs,

and insurance policy numbers corresponding to the duplicate premium

payments--so that those details can be included in the individual

mailings. Id. at 427. According to the magistrate judge's report,

"[w]hile defendants could show good faith by collecting and sending

this additional information, due process does not require it." Id.

             The   requirements   of    due    process   are   not   satisfied,

however, "if the notifying party knew or had reason to know that

notice would be ineffective." Gates v. City of Chi., 623 F.3d 389,

403 (7th Cir. 2010).       As the Supreme Court stated in Locke, the

                                       -16-
Constitution requires not just notice of the requirements to be

followed to protect one's property, but "a reasonable opportunity

. . . to comply with those requirements."              471 U.S. at 108; see

also Greene v. Lindsey, 456 U.S. 444, 451 (1982) ("In determining

the constitutionality of a procedure established by the State to

provide notice in a particular class of cases, its effect must be

judged in the light of its practical application to the affairs of

men as they are ordinarily conducted." (internal quotation marks

omitted)).

             Here, the required notice is in many cases being sent

years too late, long after many vehicle owners will have since

stopped retaining records or even their vehicles themselves. The

notice would only apprise recipients that, at some time between

1997 and 2007, they double-paid for automobile liability insurance.

It would not tell the recipients when they double-paid, for which

vehicle,   or   on     which   insurance    policy   they     double-paid--all

information that they will need in order to file for reimbursement.

Even vehicle owners who have kept meticulous records of their

personal finances for the last one-and-a-half decades would have

difficulty determining how exactly they might go about recouping

their money.

             García-Rubiera II said that notice to vehicle owners

"must include notice of the transfer of funds from JUA to the

Commonwealth,     of    Procedure    96,    and   of    Law    230's   escheat


                                     -17-
provisions."      665 F.3d at 277.       That statement of what the notices

certainly      need     include    did      not    preclude     Plaintiffs       from

establishing that other information was also necessary in order to

render the notices effective in providing a meaningful opportunity

to comply with the reimbursement requirements.                  The record makes

clear   that     additional     information        may   in   many   instances    be

essential    in   order    to     provide    recipients       with   a   reasonable

opportunity to comply with the refund requirements.                       In turn,

Counsel for the Commonwealth conceded at oral argument that it

would be "feasible" to include license plate numbers and VINs in

the individual notices to vehicle owners.                On remand, the district

court should hold the Commonwealth to that concession absent

convincing proof that supplying such information, while feasible,

would create a burden disproportionate to the benefit created.

            As    for   the   plaintiffs'         specific    argument    that   the

individual notices should include insurance policy numbers as well

as license plate numbers and VINs, the Commonwealth continues to

assert that this information is not available.                       Yet in their

submissions to the district court and their appendix on appeal, the

plaintiffs have included a CD that, they say, contains the names,

addresses,     VINs,    license    plate     numbers,     and   insurance    policy

numbers of the vehicle owners who are entitled to reimbursement.

On remand, the district court should determine, first, whether the

information is or is not available.                 To the extent that it is


                                         -18-
available, the district court should weigh the benefit to vehicle

owners of receiving the information in their notices against

whatever       burden   the   Commonwealth    might   incur    in    gathering,

organizing, and supplying the information. Cf. Greene, 406 U.S. at

451.       On the one hand, it is difficult to see why information that

already exists in useable databases matched to owner names should

not be provided.         On the other hand, providing remedial notice

should not be so costly as to impose too great a burden in light of

the benefit conveyed.

       4.      Additional publication notice

               On remand from García-Rubiera II, plaintiffs proposed

that the Commonwealth be required to publish a list of vehicle

owners entitled to reimbursement, along with the text of Procedure

96, in two daily newspapers once a week for two consecutive weeks.7

Given that sixteen years have passed since the first of the

duplicate premium payments, many of the addresses on record with

the JUA and the Treasury Department may no longer be accurate, and

the publication of newspaper notice in this case is therefore

particularly important.        In its counterproposal, the Commonwealth

sought an order requiring publication in two newspapers of general

circulation--one        English-language     newspaper   and   one    Spanish-


       7
       Plaintiffs also proposed that the newspaper notices include
the amount of the refund to which each vehicle owner is entitled,
the license plate number associated with each refund, and the name
of the company that issued the corresponding insurance policy.
Plaintiffs do not press these arguments on appeal.

                                     -19-
language newspaper8--but the Commonwealth proposed that publication

occur only once in each newspaper (rather than once a week over the

course of consecutive weeks).     The magistrate judge recommended

that the district court follow the Commonwealth's counterproposal,

and the court adopted the magistrate judge's report.       873 F. Supp.

2d at 422-23, 428.

           The question on appeal is whether the Commonwealth's

counterproposal for one-time publication in two newspapers--one

English, one Spanish--is consistent with the approach that "one

desirous   of   actually   informing    the   [vehicle   owners]   might

reasonably adopt."    Mullane v. Cent. Hannover Bank & Trust Co.,

339 U.S. 306, 315 (1950). We note "the impossibility of setting up

a rigid formula as to the kind of notice that must be given; notice

required will vary with circumstances and conditions."        Walker v.

City of Hous., 352 U.S. 112, 115 (1956); accord Jones v. Flowers,

547 U.S. 220, 226 (2006)(quoting Walker). The number of newspapers


     8
       The Commonwealth's counsel stated at oral argument that
plaintiffs are "not interested" in English-language publication
notice. While portions of plaintiffs' brief on appeal might be
interpreted this way, we understand plaintiffs to be arguing that
the district court ought to have expanded the publication notice
requirement to include a second Spanish-language newspaper--not
that the district court should drop the English-language
publication notice. While the vast majority of Puerto Ricans are
Spanish-speakers, approximately 5 percent of the population speaks
only English at home. See U.S. Census Bureau, Detailed Languages
Spoken at Home and Ability To Speak English for the Population 5
Years and Over for the United States: 2006-2008 tbl. 41 (Apr.
2010), available at http://www.census.gov/hhes/socdemo/language.
Publication notice in an English-language newspaper is a reasonable
step in reaching this portion of the population.

                                 -20-
and the frequency of publication are not necessarily determinative.

Ultimately, "assessing the adequacy of a particular form of notice

requires   balancing    the   'interest   of    the   State'     against   'the

individual interest sought to be protected by the [Due Process

Clauses].'"   Jones, 547 U.S. at 229 (quoting Mullane, 339 U.S. at

314).

           As a general rule, an appellate court will "leave the

question of what constitutes sufficient notice primarily to the

district court's discretion and apply a deferential standard of

review."   People of State of Ill. ex rel. Hartigan v. Peters, 871

F.2d 1336, 1340 (7th Cir. 1989). Here, however, we have difficulty

discerning the basis for the district court's decision to adopt the

Commonwealth's   counterproposal      rather      than    the     plaintiffs'

suggestion.   The only explanation offered            for ordering one-time

notice--rather   than    notice    over   the    course     of    consecutive

weeks--was that the Supplemental Rules for Admiralty or Maritime

Claims and Asset Forfeiture Actions allow a judgment of forfeiture

to be entered after one-time publication of newspaper notice if

accompanied by posting on a government website. 873 F. Supp. 2d at

428 (citing Supplemental R. G(4)(a)(iii)).               But a judgment of

forfeiture is generally entered with respect to personal property

under the Supplemental Rules only after an arrest warrant is issued

and executed, see Supplemental R. G(3)(b)-(c), and only after

notice is sent "to any person who reasonably appears to be a


                                   -21-
potential claimant,"      id. R. G(4)(b)(I).      Thus, the supplemental

rule allowing for one-time publication of newspaper notice is

typically    invoked   after      the   federal    government    has    made

significantly   greater    (and   generally   more   timely)    efforts    to

contact potential claimants than the Commonwealth has made so far.

            Two other points counsel against the approach taken by

the district court.       First, the notice to be provided here is

notice aimed at achieving a remedy for a long ago defalcation

where, due to the passage of time, publication is likely more

necessary than in other situations.           Second, the value of the

property interests at stake here--perhaps more than $150 million--

makes the costs of repeat publication relatively minor.                Rather

than relying on the Supplemental Rules, which address a very

different set of circumstances, the district court should on remand

engage in the balancing exercise that case law requires.                  See

Jones, 547 U.S. at 229; Dusenbery v. United States, 534 U.S. 161,

167-68 (2002); Mullane, 339 U.S. at 314.          The district court must

weigh the vehicle owners' collective interest in adequate notice of

their reimbursement rights against the cost to the Commonwealth of

publishing notice in an additional newspaper and repeating the

notices over a second consecutive week.       When asked how her client

would be burdened by the plaintiffs' proposal, Commonwealth's

counsel cited only "costs," and, while the record does not indicate

that the costs of publishing notices in three newspapers over the


                                    -22-
course of consecutive weeks would be substantial in comparison to

the amount of unclaimed funds at stake, the Commonwealth will have

another opportunity to supplement the record on remand.

              Meanwhile,    the     plaintiffs   point    out    that        two

newspapers--El Nuevo Día and Primera Hora--dominate the Puerto

Rican market.        One recent poll suggests that 48 percent of Puerto

Ricans read a printed newspaper each day, with 24 percent reading

El Nuevo Día and 21 percent reading Primera Hora. Ryan, About Half

of Puerto Ricans Read Newspapers Daily, Carribean Bus., Oct. 21,

2010, available at http://cbonlinepr.com/prnt_ed/news02.php?nw_id

=4184.        If this is more or less correct, it appears that by

publishing notice in two Spanish-language newspapers--as well as

one English-language newspaper--the Commonwealth can increase the

likelihood that information regarding the reimbursement process

will reach a broad swath of the Puerto Rican population.                      On

remand, the district court should determine whether the "costs"

cited    by    the   Commonwealth   are   sufficiently   burdensome     as   to

outweigh the benefits from a broader reach.

              The plaintiffs also argue that the newspaper notices

ought to include the text of Treasury Procedure 96.             However, it

appears to us that the district court's order already accomplishes

what the plaintiffs have requested:           the order clearly requires

that "[i]n publishing . . . notice, defendants shall state . . .

the text of Procedure 96."           873 F. Supp. 2d at 422.          If any


                                     -23-
ambiguity lingers, the district court will have the opportunity on

remand to clarify that the newspaper notices must include the text

of Procedure 96 in full (or some meaningful summary of the key

points in the text that recipients will need to know).9

     5.       Plaintiffs' request for appointment of an independent
              monitor

              Plaintiffs' fifth and final objection to the scope of the

permanent injunction is that the district court's order does not

provide for an independent monitor to oversee the Commonwealth's

compliance with the injunction's terms.             We take plaintiffs to be

arguing   that     the    district   court   should     have   exercised   its

discretion under Rule 53 of the Federal Rules of Civil Procedure to

appoint   a    "special    master"   to   oversee    implementation   of   the

injunction (although plaintiffs do not cite Rule 53 or any other

provision in support of their argument).             Rule 53 of the Federal

Rules of Civil Procedure allows for the appointment of a master

only where a statute provides for it, "some exceptional condition"

is present, the master is needed "to perform an accounting or

resolve a difficult computation of damages," or the district court


     9
       The procedure is twelve short paragraphs in length, and it
includes important information such as the address to which
reimbursement claims should be sent, the documents that vehicle
owners must attach to their claims, and the length of time that
vehicle owners can expect to wait between submission of their
reimbursement claims and receipt of payment from the Commonwealth.
While the Commonwealth submitted an unsworn declaration after oral
argument averring that this information is now available online,
the district court has not found that all or almost all class
members are internet users.

                                     -24-
cannot "effectively and timely" address pretrial or post-trial

matters.   Fed. R. Civ. P. 53(a)(1).      Yet, plaintiffs do not cite

any statute that provides for the appointment of a master here;

they do not explain why this case is "exceptional"; the only forms

of relief requested at this stage of the litigation are declaratory

and injunctive; and the district court is capable of proceeding

forward in a timely and effective manner.      Even assuming arguendo

that Rule 53 would have nevertheless permitted the appointment of

a special master here, the district court certainly did not abuse

its discretion in deciding not to do so.

C.    Award and calculation of interim attorneys' fees

           Apart from their challenge to the scope of the permanent

injunction, plaintiffs also argue that the district court erred by

(1) denying plaintiffs' request for an interim fee award and

(2) refusing to apply the percentage-of-funds method in calculating

attorney's fees.    We agree that an interim award is required here,

but we see no error in refusing to employ a percentage-of-funds

approach in setting the amount of fees.

      1.   The award of interim fees

           Plaintiffs asked the district court for an interim award

of   attorney's   fees.   In   a   single-sentence   order,   the   court

explained that it was denying plaintiffs' motion "without prejudice

given the pending appeal."         This cursory explanation does not

satisfy our requirement that district courts adequately explain


                                   -25-
their fee decisions.      See T-Peg, Inc. v. Vt. Timber Works, Inc.,

669 F.3d 59, 63 (1st Cir. 2012); Janney Montgomery Scott LLC v.

Tobin, 571 F.3d 162, 166 (1st Cir. 2009).

            It is black-letter law that the pendency of an appeal

does not operate as an absolute barrier to an interim fee award

under § 1988 when a party "has established his entitlement to some

relief on the merits of his claims." Hanrahan v. Hampton, 446 U.S.

754, 757 (1980); see also Hutchinson ex rel. Julien v. Patrick, 636

F.3d 1, 12 (1st Cir. 2011); Coal. for Basic Human Needs v. King,

691 F.2d 597, 602 (1st Cir. 1982).         The present case is precisely

the sort of litigation in which an award of interim fees is called

for.   The plaintiffs "prevailed on an important matter," Hannarah,

446 U.S. at 757, when--in García-Rubiera II--we ruled that the

Commonwealth had violated the procedural due process rights of

hundreds of thousands of vehicle owners across Puerto Rico.           That

ruling is no longer subject to revision by the district court (or

by this panel, for that matter).      Plaintiffs' "substantial right,"

Hannarah,    446   U.S.   at   757,   to    adequate   notice   has   been

recognized--although their relief has yet to arrive.

            The Commonwealth argues against an award of interim

attorney's fees on the ground that plaintiffs are somehow at fault

for the delay in arriving at a final judgment:          "If not for the

appeal filed by Plaintiffs challenging the limited injunctive

relief," the Commonwealth contends, there is "no reason why" the


                                  -26-
case could not have come to an end by now.              This argument actually

underscores the importance of allowing interim fee awards in cases

like this: counsel entitled to a fee for success already finally

achieved should not be told that payment will be delayed unless

they forgo additional vindication of their client's rights on

appeal (as here).

           The Ninth Circuit confronted a similar situation in

Taylor v. Westly ("Taylor III") and it reached a similar result.

525 F.3d 1288 (9th Cir. 2008). There, shareholders whose stock had

escheated to the State of California sued to get their property

back; on a second appeal to the Ninth Circuit, an appellate panel

unanimously     found    that    the   state   had     failed    to    provide    the

shareholders with constitutionally adequate notice of their rights.

See Taylor v. Westly ("Taylor I"), 402 F.3d 924, 925-29 (9th Cir.

2005) (factual background); Taylor v. Westly ("Taylor II"), 488

F.3d   1197,    1201    (9th    Cir.   2007)   (per     curiam)       (analysis    of

constitutional claims).          After Taylor II, the Taylor plaintiffs

sought an interim award of attorney's fees from the state; the

district court denied the request; and the Ninth Circuit reversed.

Taylor   III,   525     F.3d    at   1290.     While    noting    that    "interim

attorney's fees are the exception rather than the rule," the Taylor

III court ruled that such fees should be awarded where plaintiffs

have prevailed in a "discrete stage" of the case and "the disparity

in litigation resources between parties" means that "failure to


                                       -27-
award interim fees would create a considerable risk of starving out

plaintiffs with what we have already determined to be good claims."

Id.

               The Taylor III court's analysis applies with full force

here.        The district court abused its discretion when it denied

plaintiffs' motion for interim attorney's fees due only to the

pendency of an appeal, overlooking the fact that plaintiffs had

already prevailed on the merits of their procedural due process

claims and despite the disparity in litigation resources between

the parties. On remand, the district court should make an award of

attorney's fees to plaintiffs in an amount determined by the court

to be sufficient to cover the compensable work performed from the

beginning of this action through the date of this opinion.

        2.     The calculation of fees

               Plaintiffs also argue that the district court was wrong

to deny their motion that the final fee award be calculated using

the percentage-of-funds approach instead of the lodestar method.

It    is     unclear,   however,   if    the   district   court's   order   is

sufficiently final to give us jurisdiction to address the issue.

28 U.S.C. § 1291.       The district court indicated in a one-sentence

order that it would eventually use the lodestar method to calculate

the total amount of attorneys' fees, but did not attempt to

actually determine the amount of fees which should be awarded.              In

some circumstances, awards of attorneys' fees may be reviewed


                                        -28-
before a case has been definitively resolved on the merits.    In re

Nineteen Appeals Arising Out of San Juan Dupont Plaza Hotel Fire

Litig., 982 F.2d 603, 610 (1st Cir. 1992).   But such review is only

permissible where the award       "definitively resolves claims for

attorneys' fees."   Id.

           A ruling on attorneys' fees is definitive "where a

dollar-specific order for attorneys' fees has been entered and

further action on the main case will not require revisiting that

order."   Id. at 609 n.10.   The only exception that we are aware of

to this general rule is the "peculiar circumstance" where a final

amount of attorneys' fees has not been determined but there is "a

final judgment on the only issue in which [the appealing party]

still had an interest."      Boeing Co. v. Van Gemert, 444 U.S. 472,

482 n.7 (1980).   Here, in contrast, there remain issues regarding

attorneys' fees in which plaintiffs' have an interest and which

have not been resolved by the District Court. For example, we have

remanded for further consideration of the class definition. The

district court's determination of this issue may affect the total

amount of fees awarded. Even if we determined definitively that we

had jurisdiction to review the district court's order on the choice

of fee-award mechanism, we would decline to exercise it in order to

give the district court an opportunity to explain its reasoning

more fully after resolving the other issues before it on remand.




                                  -29-
          Our order that the district court make an interim award

of attorneys' fees, however, itself raises the question of how to

calculate the amount of such a fee award.   That question, in turn,

may require the court to anticipate how it would calculate a final

award so as to ensure that interim and final awards can be

reconciled.   We therefore offer the following guidance for remand.

          A district court can hardly go wrong in selecting the so-

called lodestar method when called upon to determine how much of an

attorneys' fee a losing defendant need pay a prevailing plaintiff.

Perdue v. Kenny A. ex rel. Winn, 130 S.Ct. 1662, 1673 (2010);

Coutin v. Young & Rubicam P.R. Inc., 124 F.3d 331, 337 (1st Cir.

1997). Plaintiffs nevertheless argue that the district court in

this case can and should base either the interim or final fee award

on a percentage-of-funds approach.    This approach "appl[ies] only

where attorneys seek compensation from a discernable pot of money

won by the plaintiffs." In re Volkswagen & Audi Warranty Extension

Litig., 692 F.3d 4, 16 (1st Cir. 2012).     Where this approach is

applicable, a court may compensate Plaintiffs' counsel by awarding

them a percentage of the pot of money recovered for the plaintiffs.

Id.   Plaintiffs suggest they should receive a percentage of the

total funds that escheated to the Commonwealth.        Amounts not

refunded to class members following due notice, however, will

belong to the Commonwealth, providing neither a direct nor indirect




                               -30-
benefit to class members.    Therefore, they will not be part of any

common fund of which Plaintiffs' counsel might claim a percentage.10

             A percentage-of-funds approach based on the amount of

funds refunded, while better justified in theory, is unworkable in

this case.     The district court cannot know the approximate amount

of refunds made until after the refunds have been paid out over a

period of years. Hence, it is not possible to know what percentage

award would generate what total amount.         If few refunds are

claimed, a 30 percent award could be too little.         Yet if most

refunds are claimed, 10 percent could be too much.      And once one

knows after the fact how much has been paid out, there will remain

no pot of money not due the Commonwealth out of which counsel might

receive a percentage.     In such a situation we know of no precedent

requiring the use of any method other than the lodestar method.

                           III.   CONCLUSION

             In conclusion, the district court's permanent injunction

is vacated; and the court's order denying plaintiffs' motion for an

interim award of attorney's fees is reversed.       We order that no

duplicate premiums shall escheat to the Commonwealth until it has

established and complied with a reimbursement procedure which meets



     10
       Boeing is not to the contrary. The final judgment in Boeing
was for a sum certain, with pro rata shares to be claimed by class
members merely upon request and proof of identity. 444 U.S. at
479.    Here, the judgment is in the form of injunctive and
declarative relief, making clear that the Commonwealth will have to
pay only what is properly claimed. See id. at 479 n.5.

                                  -31-
the basic requirements of constitutional due process.   Costs are

awarded to the Plaintiffs.   We remand to the district court for

further proceedings consistent with this opinion.




                              -32-
