Of the Seventh Circuit, sitting by designation. *

United States Court of Appeals

For the First Circuit

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 and

Aldarondo & López Bras were on brief for appellees-crossappellants.

November 19, 2009
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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.

Plaintiffs, a class of Puerto Rican residents who only

speak English, sued members of the State Electoral Commission of

Puerto Rico (Commission) 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 the merits and granted them a

permanent injunction in August 2008, which compelled the Commission

to print bilingual ballots in the November 2008 election. The

district court later awarded plaintiffs attorney's fees under 42

U.S.C § 1988 in the sum of $67,550.34, less than the amount

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
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have cross-appealed from the diminution of their requested award,

and the appeals were consolidated.

While these cases were pending on appeal, Puerto Rico

passed legislation 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 English. 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 Puerto Rican

elections only in Spanish discriminated against and effectively

disenfranchised voters who only speak English.

On August 27, 2008, the district court granted plaintiffs

a permanent injunction directing the Commission to immediately

begin printing 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 Rights
Walter 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. 

The district court made an initial award of attorney's 2

fees on April 1, 2009 and issued an amended order and judgment on

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Act, the First Amendment, and the Equal Protection Clause of the

Fourteenth Amendment. See Diffenderfer v. Gomez-Colon, 587 F.

Supp. 2d 338 (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 Commission complied with the injunction and

used bilingual ballots in the November 2008 elections.

In April 2009, the district court 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

Diffenderfer 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 2
April 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,

Diffenderfer 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 accepted plaintiffs'

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. 

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award on April 30, 2009, and Diffenderfer and McCarroll crossappealed on May 7, 2009.

While these appeals were pending before this court,

Puerto Rico enacted Law No. 90, which mandates that bilingual

ballots will be used in all future Puerto Rican elections. Both

parties agree that Law No. 90 mooted the appeal of the district

court's judgment on the merits.

The parties disagree, however, as to the proper

disposition of that appeal and the effect this would have upon the

appeal of the attorney's fees award. Diffenderfer and McCarroll

argue that we should leave the district court's judgment on the

merits intact because Gomez-Colon's voluntary actions 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 abused its discretion in reducing plaintiffs' award of

attorney's fees because of plaintiffs' practice of billing in

quarter-hour increments 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 to vacate the district

court's judgment on the grounds that vacatur is the general rule

when a case becomes moot on appeal through happenstance, for

instance 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. Plaintiffs, 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

plaintiffs were not otherwise prevailing parties before the

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.
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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. Under 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 responsible for 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 by choice. 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 when it 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." Arizonans for 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, which the court no longer has jurisdiction to determine.

It is instead a remedy designed to prevent unfairness to the losing

party, who would 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 intervening

events outside the losing party's control). 

We hold that this action by the legislature is a

circumstance not attributable to the Commission as an individual

administrative entity. All circuits to address this issue have

held that such legislation is generally considered an intervening,

independent event and not voluntary action, particularly when the
This is not a case where the initial mootness arguably 3

occurred during proceedings before the district court and the later

mootness occurred while the case was on appeal, 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. See, 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 court of jurisdiction 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 the

passage 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). 

3
whether 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).

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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 and 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 abuse 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 League 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 appeal, "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

Anderson v. U.S. Dep't of Health and Human Servs., 3 F.3d 1383,

1385 (10th Cir. 1993) (internal quotation marks omitted)); see also
Gomez-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

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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

action 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 "judicially 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. 598, 603, 605

(2001); see also 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 is the 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 4
it 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.

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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

court'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 fees for litigation

before the district court. See, e.g., Globe Newspaper Co. v.

Beacon Hill 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 favorable change in the

parties' 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
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the intervening act of mootness. See Buckhannon, 532 U.S. at 605;

see also Grano v. Barry, 783 F.2d 1104, 1108 (D.C. Cir. 1986).

Courts of appeals apply this test by looking only 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 explicitly 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

after being rendered but before the losing party could challenge

its validity on appeal, is a question of some difficulty." Id. 

We agree the question is difficult, but we must decide

it. Numerous circuits have held both before and after Lewis that

an award of fees is within the discretion of the district court.

We agree. When plaintiffs clearly succeeded in obtaining the

relief sought before the district court and an intervening event

rendered the case moot on appeal, plaintiffs are still "prevailing
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parties" for the purposes of attorney's fees for the district court

litigation. See, e.g., UFO Chuting of Haw., Inc. v. Smith, 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 courts 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

moot . . . while the order is on appeal") (footnote omitted);

Palmer v. City of Chicago, 806 F.2d 1316, 1321 (7th Cir. 1986)

(assuming though 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 actual election 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 also
We reject Diffenderfer and McCarroll's alternate theory, 5

that they were prevailing parties under § 1988 because their

lawsuit formed the impetus for Law No. 90 and therefore provided

them with the real-world change their lawsuit was designed to

achieve. The Supreme Court squarely rejected this "catalyst

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 "consistency" with the majority and dissenting

opinions in Buckhannon did not challenge the validity of the

majority's holding. Id. at 82 n.3.

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obtained the desired practical outcome of their suit through the

operation of that injunction: 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 grievances,"

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 defect Congress identified in the market:

"[T]he private market for legal services failed to provide many

victims of civil rights violations with effective access to the

judicial process" because "[t]hese victims ordinarily cannot afford

to purchase legal services at the rates set out by the private

market" and because the amount of damages in most civil rights

suits is ordinarily too low to otherwise cover 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

detract 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 Agyei, 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

involved in a contrary rule "could well deter otherwise willing

attorneys from accepting complex civil rights cases 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. 

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B. Diffenderfer and McCarroll's Cross-Appeal

On cross-appeal, Diffenderfer and McCarroll reiterate

their claim that the district court erroneously reduced their award

when it 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 abuse 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 increments 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.
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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 automatic 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 dismiss 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.