Of the Seventh Circuit, sitting by designation. * 

# U nit edSta tes C ou rt o f A pp eal s

For t h e Firs t C ircu it

Nos. 08-2139, 09-1742, 09-1743 SYLVIA DIFFENDERFER, on behalf of herself and as a representative of the class herein defined; ROBERT MCCARROLL, on behalf of himself and as a representative of the class herein defined,

Plaintiffs, Appellees/Cross-Appellants,

v . RAMON E. GOMEZ-COLON, President of the State Electoral Commission of Puerto Rico; WALTER VELEZ-RODRIGUEZ, Secretary of the State Electoral Commission of the Commonwealth of Puerto Rico,

Defendants, Appellants, GERARDO CRUZ-MALDONADO, Electoral Commissioner of Popular Democratic Party; JUAN DALMAU-RODRIGUEZ, Electoral Commissioner of the Puerto Rican Independence Party; NELSON ROSARIO-RODRIGUEZ, Electoral Commissioner of the Puerto Ricans for Puerto Rico Party; EDWIN MUNDO-RIOS, Electoral Commissioner of the New

Progressive Party; JOHN DOE,

Defendants.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO [Hon. José A. Fusté, Chief Judge]

Before Lynch, Chief Judge, Torruella and Ripple , Circuit Judges. *Noel S. González-Miranda with whom González Miranda & González

Abella PSC was on brief for appellants. Eliezer Aldarondo Ortiz with whom Eliezer A. Aldarondo andAldarondo & López Bras were on brief for appellees-crossappellants.

November 19, 2009-2- LYNCH, Chief Judge . Two issues are presented in the aftermath of a prior appeal in a civil rights case that has become moot due to legislative action. The first is whether the underlying injunctive order the plaintiffs obtained in the district court should be vacated on remand, given the reason for mootness of the appeal. The second is whether plaintiffs would, under these circumstances, remain entitled to the award of attorney's fees in the now moot case and, if so, whether the fees the district court awarded were reasonable. We vacate the judgment and remand to the district court with instructions to dismiss the action, and we affirm the district court's award of attorney's fees.

Plain t i f fs, a class of Puerto Rican residents who only speak English, sued members of the State Electoral C o m m i ssion of Puerto Ri c o ( C ommission) under 42 U.S.C. § 1983, challenging the Commission's decision to print ballots in the November 2008 elections solely in Spanish. The federal district court of Puerto Rico found for the plaintiffs on th e m erits and granted them a permanent injunction in August 2008, which compelled the Commission to print bilingual ballots in the November 2008 election. The district cour t l ater awarded plaintiffs attorney's fees under 42
U.S.C § 1 9 8 8 i n t h e s u mo f $ 6 7 , 5 5 0
. 3 4 , l e s s t h a n t h e a m o unt requested of $122,988.75. Defendant Ramon Gomez-Colon, who was President of the Commission at the time, appealed from both the underlying judgment and the award of attorney's fees. Plaintiffs-3-

have cross-appealed from the diminution of their requested award, and the appeals were consolidated.

While these cases were pending on appeal, Puerto Rico
pas s e d l egislation requiring the use of bilingual ballots in all future elections, and the governor signed the legislation, which is in effect. Both parties agree this has mooted the underlying judgment.
I.

Plaintiffs and appellees, Sylvia Diffenderfer and Robert McCarroll, are longtime Puerto Rico residents and registered voters who speak and read only Engli s h
. On August 19, 2008, plaintiffs filed a putative class action suit under 42 U.S.C. § 1983 in the federal district court of Puerto Rico. They sued the President of the Commission and the four Commissioners in their individual and official capacities, arguing that the Commission's administrative decision to issue ballots for the November 2008 Pue r t o Rican elections only in Spanish discriminated aga inst and effectively disenfranchised voters who only speak English.

On August 27, 2008, the district court granted plaintiffs a permanent inj u n c t ion directing the Commission to immediately begin prin t i n g bilingual ballots for use in the November 2008 elections. In a written opinion issued September 2, 2008, the district court held that this relief was warranted on the grounds that the Commission's balloting policy violated the Voting RightsWalter Velez-Rodriguez, who was Secretary of the 1 Commission at the time, was originally a co-appellant. His appeal was voluntarily dismissed pursuant to Fed. R. App. P. 42(b) on February 5, 2009.

T h e d i s t r i c t c o u r t m a d e a n i n i t i a l a w a r do f a t t o r ney's 2 fees on April 1, 2009 and issued an amended order and judgment on -4- Act, the First Amendment, and the Equal Protection Clause of the
Fourtee n t h Amendment. See Diffenderfer v. Gomez-Colon, 587 F. Supp. 2d 3 3 8 ( D . P .R. 2008). On September 5, 2008, Ramon GomezColon, the President of the Commission, filed a notice of appeal. 1 In the meantime, the Comm i s s i o n complied with the injunction and used bilingual ballots in the November 2008 elections.

In April 2009, the district c o urt awarded Diffenderfer and McCarroll attorney's fees under 42 U.S.C. § 1988 because they had prevailed before the district court on the merits of the § 1983 action. Based on the "lodestar" method, the district court awarded a total of $67,550.34 in attorney's fees and litigation costs. The plaintiffs had requested $122,988.75. This amount was reduced by the court to account for duplicative and excessive hours and to adjust for plaintiffs' practice of billing by the quarter-hour, which the district court found had produced an inflated number of billable hours. This fee was awarded only against Gomez-Colon in his official capacity as the President of the Commission. See Diffender f e r v . Gomez-Colon, 606 F. Supp. 2d 222 , 225-30 (D.P.R. 2009) (initial order and judgment); 2009 WL 1140219 at *2 (D.P.R. 2009) (revised order and judgment). Gomez-Colon appealed this 2April 24, 2009. The first order awarded $65,992.00 in attorney's

fees against three of the four Commissioners, in addition to GomezColon. After this initial judgment issued on April 1, 2009, Di f f enderfer and McCarroll asked for reconsideration of the calculations and for inclusion of litigation costs. In a revised order on April 24, 2009, the district court accepte dp l a intiffs' arguments in part and revised the attorney's fee figure upwards to $67,550.34. It also imposed attorney's fees only upon Gomez-Colon in his official capacity, since, as President of the Commission, he was the only one able to represent the Commission as a whole. -5- award on April 30, 2009, and Diffenderfer and McCarroll crossappealed on May 7, 2009.

While these appeals were pending before t his court, Puerto Rico enacted Law No. 90, which mandates t h a t bilingual ballots will be used in all future Puer t o R ican elections. Both parties agree that Law No. 90 moot e d t h e a p peal of the district court's judgment on the merits.

The parties disagree , h owever, as to the proper disposition of that appeal and the effect this would have upon the appeal of the attorne y ' s f ees award. Diffenderfer and McCarroll argue that we should leave the district court's judgment on the merits intact because Gomez-Colon's voluntary act i o n s in not seeking a stay pending appeal had rendered the case moot even before Puerto Rico passed Law No. 90. They further argue that they are still entitled to attorney's fees for costs incurred in the district court litigation, even if we were to vacate the district court's judgment, because, inter alia, they obtained a favorable, material alteration in the legal relationship between the parties-6-

before the case became moot. Finally, they argue that the district
court abu s e dits discretion in reducing plaintiffs' award of attorney's fees because of plaintiffs' practice of billing in quarter-hour incr e m e nts and request that the award of attorney's fees be adjusted upwards to $82,490. Their claim for attorney's fees is limited to their work before the district court.

Gomez-Colon instead urges us t o vacate the district court's judgment on the grounds that vacatur is the general rule when a c a se becomes moot on appeal through happenstance, forinstance due to intervening legislation like Law No. 90. GomezColon further argues that vacation of the underlying judgment would necessarily require reversal of the district court's disposition of attorney's fees. P l a i ntiffs, he asserts, cannot be considered "prevailing parties" in the district court if the district court's judgment is vacated, and the district court's award of attorney's fees should therefore be reversed. He does not argue that pla i n t i f f s w e r e n o t o t h e r w i s e p r e v a i l i n g p a r t i e s b e f o r e t he district court or that the fees awarded were not reasonable.

Gomez-Colon also filed motions to substitute his successor as the President of the Commission as the appellant and to consolidate the appeals of the district court's judgment on the merits and its award of attorney's fees. We granted the motion to consolidate but reserved judgment on the question of substitution of parties.-7- II. The first issue is the appropriate disposition of the appeal of the district court's judgment on the merits of plaintiffs' § 1983 action. Both parties contend, and we agree, that Law No. 90 mooted that appeal. Unde r that statute , the Commission must use bilingual ballots now that Puerto Rico has made bilingual ballots mandatory. Because we can no longer issue any judicial remedy capable of affecting the parties' rights, the case no longer presents a live "case or controversy" under Article III, and we lack jurisdiction to decide its merits. See City of Erie v. Pap's A.M., 529 U.S. 277, 287 (2000); Horizon Bank & Trust Co. v. Massachusetts, 391 F.3d 48, 53 (1st Cir. 2004). We hold that the district court's judgment should be vacated because it was rendered moot by an independent, intervening act of legislation.

As a general rule, federal courts of appeals vacate the judgment below when a civil case becomes moot during the pendency of an appeal. Arizonans for Official English v. Arizona, 520 U.S. 43, 71 (1997); see also Rusco Steel Co. v. Atkinson-Kiewit, J/V, 98 F.3d 1333 (1st Cir. 1996) (per curiam). Vacatur, an equitable remedy, is ordinarily granted unless the losing party appealing the judgment was responsibl e f or making the case unreviewable, for instance by failing to appeal or by entering into a settlement. See U.S. Bancorp Mortg. Co. v. Bonner Mall P'ship, 513 U.S. 18, 24- 25 (1994); Shelby v. Superformance Int'l, Inc., 435 F.3d 42, 46-8-

(1st Cir. 2008). In such cases, vacatur is inappropriate because it was within that party's power to keep the controversy live and the judgment is therefore unreviewable only b y c h o ice. Bancorp, 513 U . S . at 25. When the losing party's voluntary action causes the case to become moot, a presumption against vacatur applies, and vacatur is appropriate only whe n i t would serve the public interest. Id. at 25-28.

In contrast, "[v]acatur is in order when mootness occurs through happenstance--circumstances not attributable to the parties." Arizon a n s f or Official English, 520 U.S. at 71. Vacatur, unlike a reversal of the district court's judgment on the merits, does not reflect upon the underlying merits of the parties' claims, w h i c h the court no longer has jurisdiction to determine. It is instead a remedy designed to prevent unfairness to the losing party, w h o w ould otherwise have to continue complying with an adverse judgment. Bancorp at 25; see also Kerkhof v. MCI WorldCom, Inc., 282 F.3d 44, 53-54 (1st Cir. 2002) (explaining that "vacatur is generally appropriate" when mootness results from in t e r vening events outside the losing party's control).

We hold that this action by the l e g i s l ature is a circums t a n ce not attributable to the Commission as an individual administrative entity. All circuits to address this iss u e have held that such legislation is generally considered an intervening, independent event and not voluntary action, particularly when theThis i s n o t a c a s e w h e r e t h e i n i t i a l m o o t n e s s a r g u a b ly 3 occurred during proceedings before the district court and the later mootness occurred while the case was on ap p e al, thereby raising questions regarding the legal effect of ancillary judgments. Cf. In re Scruggs, 392 F.3d 124, 128-30 (5th Cir. 2004) (evaluating -9- governmental entity taking the appeal, as here, is not part of the legislative branch. Se e , e . g., Khodara Envtl., Inc. v. Beckman, 237 F.3d 186, 194-95 (3rd Cir. 2001); Valero Terrestrial Corp. v. Paige, 211 F.3d 112, 121 (4th Cir. 2000); Nat'l Black Police Ass'n v. Dist. Ct. of Columbia, 108 F.3d 346, 351-53 (D.C. Cir. 1997).

Diffenderfer and McCarroll essentially ask us to ignore the fact that an intervening event mooted the case and deprived this co u r t o f j u risdiction over the merits of the appeal. They argue that we should instead wade into a separate, hotly contested possible issue in the underlying case which has been rendered moot- -the issue of whether the case would have been moot anyway. Specifically, they claim that the case was rendered moot by thepassage of the November 2008 Puerto Rican elections and that GomezColon's failure to seek a stay of the district court's injunction in September 2008 was a voluntary decision not to preserve the case for appeal. We can find no basis for doing so. See, e.g., Bd. of Educ. v. Nathan R., 199 F.3d 377, 381 (7th Cir. 2000) (declining to address possibility of earlier mootness when subsequent, intervening event made it impossible to grant any judicial remedy that would affect the parties' rights and vacating judgment below). 3whether case was already moot prior to decisive intervening event

of mootness when date of mootness determined whether Bankruptcy Court order remained in place or whether district court had jurisdiction to reverse that order). -10- We accordingly vacate the district court's judgment and remand it with instructions to dismiss the action.
III. We turn to Gomez-Colon's appeal a n d plaintiffs' crossappeal of the district court's award of attorney's fees.
A. Gomez-Colon's Appeal From the Attorney's Fees Award

We review a district court's award of attorney's fees under § 1988 for an a buse of discretion, in deference to the district court's superior ability to calibrate such awards to the nuances of the case. See Gay Officers Action L e ague v. Puerto Rico, 247 F.3d 288, 292 (1st Cir. 2001).

It is true that a party's interest in recouping attorney's fees does not create a stake in the outcome sufficient to resuscitate an otherwise moot controversy. Lewis v. Cont'l Bank Corp., 494 U.S. 472, 480 (1990). However, even when federal courts lack jurisdiction to decide the merits of an a p peal, "the expiration of the underlying cause of action does not moot a controversy over attorney's fees already incurred." In re Savage Indus., Inc., 43 F.3d 714, 719 n.6 (1st Cir. 1994) (quoting And e r s o n v . U . S . D e p ' t o f H e a l t h a n d H u m a n S e r v s . , 3 F .3d 1383, 1385 (10th Cir. 1993) (internal quotation marks omitted)); see alsoGom ez-Colon also asserts that under Local Rule 54(a), 4 plaintiffs prematurely filed their claim for attorney's fees before the district court. He suggests that plaintiffs should have waited to apply for fees until after the disposition of this appeal. But Gomez-Colon never made this argument before the district court when -11- United States v. Ford, 650 F.2d 1141, 1143-44 (9th Cir. 1981) ("[T]he question of attorney's fees is ancillary to the underlying

a c tion and survives independently under the Court's equitable jurisdiction.").

Under § 1988, when a plaintiff successfully pursues a civil rights action under § 1983, "the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee as part of the costs." 42 U.S.C. § 1988(b). Generally speaking, a "prevailing party" is "one who has been awarded some relief by the court," meaning a "judicial l y sanctioned change in the legal relationship of the parties." Buckhannon Bd. and Care Home, Inc. v. W. Va. Dep't of Health and Human Res., 532 U.S. 5 9 8 , 6 0 3, 605 (2001); s e e a lso Aronov v. Napolitano, 562 F.3d 84, 89 (1st Cir. 2009) (en banc). A plaintiff who receives a favorable judgment on the merits of a claim i s t h e classic example of a "prevailing party." See, e.g., Farrar v. Hobby, 506 U.S. 103, 111-12 (1992); De Jesus Nazario v. Morris Rodriguez, 554 F.3d 196, 199-200 (1st Cir. 2009).

Gomez-Colon's lone argument on appeal is that vacatur of this judgment means that plaintiffs are no longer "prevailing parties" at any stage of the litigation. Vacatur of a moot case 4it assessed attorney's fees, even though Gomez-Colon had, at that

time, already filed a notice of appeal of the underlying judgment. We therefore consider this argument waived. -12- means that the initial, favorable judgment plaintiffs obtained from the district court is no longer binding law. This, Gomez-Colon claims, makes it identical in effect to a reversal of the district

cou r t ' s judgment on the merits. When a federal court of appeals reverses a district court's judgment on the merits in a civil rights case, it is well established that plaintiffs are no longer "prevailing parties" entitled to attorney's f ees for litigation before the district court. See, e.g., Globe Newspaper Co. v.
Beac o n H i ll Architectural Comm'n, 100 F.3d 175, 195 (1st Cir. 1996); see also Greenville Women's Clinic v. Bryant, 222 F.3d 157, 175 (4th Cir. 2000); Clark v. Twp. of Falls, 890 F.2d 625, 626-27 (3d Cir. 1989). Gomez-Colon argues that the same rule should apply to judgments vacated as moot.

We reject this argument, which misunderstands the difference between reversal on the merits and vacatur of a moot case. Reversal on the merits deprives a plaintiff of "prevailing party" status because it repudiates the fav o r able change in the parti es' legal relationship effectuated by the district court's judgment and holds that the plaintiff was never legally entitled to such relief. In contrast, in the mootness context, a "prevailing party" is a party who managed to obtain a favorable, material alteration in the legal relationship between the parties prior to-13-

the intervening act of mootness. See Buckhannon, 532 U.S. at 605; see als o G rano v. Barry, 783 F.2d 1104, 1108 (D.C. Cir. 1986). Courts of appeals apply this test by looking o n l y to what relief the district court granted and not to whether the case was rightly decided. See Ctr. for Biological Diversity v. Marina Point Dev. Co., 566 F.3d 794, 805-06 (9th Cir. 2009) (collecting cases).

Thus, a plaintiff cannot be a "prevailing party" when his lawsuit prompted a favorable legislative outcome but had produced no judicial decision at the time the legislation mooted the case. See Buckhannon, 532 U.S. at 605. Similarly, a party is not a "prevailing party" at the appeals stage, entitled to attorney's fees for the cost of appellate litigation, if the case becomes moot pending appeal. See Lewis, 494 U.S. at 483. But the Supreme Court has e x p l i citly left open the question presented in this case, observing that "[w]hether [a plaintiff] can be deemed a 'prevailing party' in the District Court, even though its judgment was mooted afte r b e i n g r e n d e r e db u t b e f o r e t h e l o s i n g p a r t yc o u l dc h a l l enge its validity on appeal, is a question of some difficulty." Id.

We agree the question is difficult, but we mu s t d e cide it. Numerous circuits have held both before and after Lewis that an award of fees is within the disc r e t i on of the district court. We agree. When plaint i f f s clearly succeeded in obtaining the relief sought b e f o r e the district court and an intervening event rendered the case moot on appeal, plaintiffs are still "prevailing-14-

parties" for the purposes of attorney's fees for the district court litigation. See, e.g., UFO Chuting of Haw., Inc. v . S m i t h , 508 F.3d 1189, 1197 & n.8 (9th Cir. 2007) (noting that when a party successfully obtains an injunction before a district court prior to an intervening act of mootness, that party remains the "prevailing party," and that this conclusion is consistent with Lewis); Dahlem v. Bd. of Educ., 901 F.2d 1508, 1512-13 (10th Cir. 1990) (listing

cases and holding that "[w]e are in accord with the cou r t s which have held that a party which achieves the objective of its suit by

means of an injunction issued by the district court is a prevailing party in that court, notwithstanding the fact that the case becomes

moo t . . . while the order is on appeal") (footnote omitted); Palmer v. City of Chicago, 806 F. 2 d 1316, 1321 (7th Cir. 1986) (assuming t h o u g h not holding that plaintiffs are "prevailing parties" "if after some relief has been obtained the case becomes moot," unless the plaintiffs caused the mootness); Grano, 783 F.2d at 1109 ("The mootness of the subsequent appeal of that holding following the actua l e l e ction and the passage of the initiative, emphasizes, rather than detracts from, the practical substance of their victory.").

We hold that Diffenderfer and McCarroll were "prevailing parties" entitled to attorney's fees for the costs of the district court litigation notwithstanding the subsequent mootness. They not only obtained the injunctive relief they sought. They alsoWe reject Diffenderfer and McCarroll's alternate theory, 5 that they were prevailing part i e s under § 1988 because their lawsuit formed the impetus for Law No. 90 and therefore provided them with the real-world change thei r l a w suit was designed to achieve. The Supreme Court squarely rejected this " c a talyst theory" of "prevailing party" status in Buckhannon. 532 U.S. at 605. Sole v. Wyner, 551 U.S. 74 (2007), did not alter that conclusion; it was concerned with the question of whether a preliminary injunction that was dissolved by a subsequent final decision in the same case was enough to create "prevailing party" status, and its " c onsistency" with the majority and dissenting opinions in Buckhann o n did not challenge the validity of the majority's holding. Id. at 82 n.3. -15- o b t a i n ed the desired practical outcome of their suit through the operation of that injun c t i on: the Commission in fact distributed bilingual ballots in the November 2008 elections. Plaintiffs were 5 "prevailing parties" in this litigation at the district court before Law No. 90 made the appeal moot.

We recognize that the defendant did not have the chance to seek to reverse the court's injunction on appeal on the ground that it was based on an error of law. In the end, this is a question of what Congress would have intended under the circumstances. Congress's overarching purposes in enacting § 1988, the Supreme Court has held, were "to ensure 'effective access to the judicial process' for persons with civil rights g r ievances," Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (quoting H.R. Rep. No. 94-1558, at 1 (1976)), and to "encourag[e] the enforcement of federal law through lawsuits filed by private persons," Missouri v. Jenkins by Agyei, 491 U.S. 274, 283 n.6 (1989) (internal quotation marks omitted). The award of attorney's fees serves this purpose-16-

because it corrects a d efect Congress identified in the market: "[T]he private market for legal services faile d to provide many victims o f civil rights violations with effective access to the judicial process" because "[t]hese victims ordinarily cannot afford to purchase legal services at t h e rates set out by the private market" and because the amount of damages in most civil rights suits is ordinarily too low to otherwise cove r the cost of a lawyer. City of Riverside v. Rivera, 477 U.S. 561, 576-77 (1986).

To hold that mootness of a case pending appeal inherently deprives plaintiffs of their status as "prevailing parties" would d e t ract from § 1988's purposes. Such a rule could result in disincentives for attorneys to bring civil rights actions when an event outside the parties' control might moot the case after the district court rendered a favorable judgment but before the judgment could be affirmed on appeal. Cf. Jenkins by A g y ei, 491 U.S. at 283 n.6 (interpreting § 1988 to include an adjustment for a delay in payment to calculate fees because the potential hardship invol v e d in a contrary rule "could well deter otherwise willing attorneys from accepting complex civil rights cas e s that might offer great benefit to society at large" and "this result would work to defeat Congress' purpose in enacting § 1988"). Our solution is our best view of what Congress, in designing the civil rights attorney's fees scheme, would intend.Plaintiffs do not appeal the district court's across-the- 6 board reduction for excessive and duplicative billing practices
. -17- B. Diffenderfer and McCarroll's Cross-Appeal

On cross-appeal, Diffenderfer and McCarroll reiterate their claim that the district court erroneously reduced their award whe n i t imposed an across-the-board fee reduction to account for plaintiffs' practice of billing in quarter-hour increments. They 6 argue that this reduction was an a b u s e of discretion, because billing by the quarter-hour is common practice in the Puerto Rican legal community.

Because we review such claims for an abuse of discretion, we generally do not disturb a district court's calculation of an award. See Gay Officers Action League, 247 F.3d at 292-93. This

case is no different. Plaintiffs misconstrue the district court's reasoning: the reduction was not imposed because the district court found billing in quarter-hour increments per se unreasonable, but because it found that plaintiffs had billed fifty or more menial items in quarter-hour inc r e m e n ts when the actual task would have taken a negligible amount of time. See Diffenderfer, 606 F.Supp.2d
at 229. The district court explained that it imposed this reduction pursuant to its duty to ensure that the ultimate fee was reasonable. Its conclusions on this and other reductions were well within the boundaries of existing precedents, and we find no abuse of discretion.-18- IV. Finally, we turn to Gomez-Colon's motion for substitution of parties. Gomez-Colon is no longer President of the Commission and seeks to substitute Hector J. Conty-Perez, the new President, as appellant. Substitution is automa t i c where, as here, the district court imposed fees against Gomez-Colon only in his official capacity. See Fed. R. App. P. 43(c)(2); Fed. R. Civ. P. 25(d). Appellant Gomez-Colon's motion to substitute parties is hereby granted. The district court's judgment in Diffenderfer v. Gomez-Colon, 587 F. Supp. 2d 338 (D.P.R. 2008) , is vacated, and we remand to the district court with instructions to d i s m i ss the action. We affirm the district court's award of attorney's fees in the district court
. No costs are awarded on these appeals.

So ordered.