OPINION AND ORDER
There are several post-trial motions presently before the court.Plaintiff Bernabé Tejada-Batista moves for an order reinstatinghim to his position as agent of the Special Investigations Bureau at thePuerto Rico Department of Justice. (Docket No. 180.) In the alternative,plaintiff moves for an award of front pay and prejudgment interest in lieuof reinstatement. (Id.) In a separate motion, the plaintiff seeks anaward of attorney's fees under 42 U.S.C. § 1988. (Docket No. 181.)
Co-defendant José Fuentes-Agostini moves for an award ofattorney's fees under section 1988 claiming that, as the prevailing party(on a Rule 50 motion for judgment as a matter of law), he is entitled tosaid award because plaintiffs claim against him was frivolous, groundlessand vexatious. (Docket No. 188.) After consideration of the argumentsadvanced by the parties, and for the reasons explained below, plaintiffsmotion for reinstatement is GRANTED. Plaintiff's motion for an award ofattorney's fees is also GRANTED. Co-defendant Fuentes-Agostini's motionfor attorney's fees is DENIED.
BACKGROUND
Plaintiff Bernabé Tejada-Batista brought this action under42 U.S.C. § 1983 claiming, inter alia, that he was unlawfullydischarged from his employment at the Department of Justice forexercising his First Amendment rights. The case was called for jury trialon February 24, 2003, and at the close of plaintiff's evidence, all thedefendants moved for judgment as a matter of law under Rule 50 of theFederal Rules of Civil Procedure. On a ruling from the bench, I grantedco-defendant Fuentes-Agostini's motion and dismissed the case as to him.I similarly dismissed the case against two other co-defendants. Anopinion and order was issued on March 11, 2003, explaining the basis formy ruling on the Rule 50 motion. The case proceeded with the remainingfour co-defendants and the jury returned a verdict against two of them.
Mr. Tejada-Batista now moves for reinstatement in his position as agentfor the Special Investigations Bureau. In the alternative, he requests anaward of front pay and prejudgment interest. He invokes the equitablepowers of this court under section 1983. In addition, plaintiff filed amotion seeking an award of attorney's fees as the prevailing party inthis
[263 F. Supp.2d 324]
lawsuit pursuant to 42 U.S.C. § 1988. So did co-defendantFuentes-Agostini. I address the motions in the order they are presented.
DISCUSSION
I. Motion for Reinstatement
The crux of plaintiff's arguments is that reinstatement is theequitable remedy appropriate to effectuate the purpose of the CivilRights Act. It is further claimed by plaintiff that reinstatement is anindispensable part of just compensation to an employee discriminatedagainst because of his exercise of First Amendment rights, and that inthe exercise of its discretion, the court should grant the equitablerelief sought. In the alternative, plaintiff argues that if reinstatementis not feasible, the court should order a front pay award of $52,848.This amount is calculated by plaintiff as the salary he was receivingprior to the discharge, multiplied by the number of years he would havework at the Department of Justice until retirement. Plaintiff also seeksthat said award of front pay include pre-judgment interest.
The First Circuit has held that "[o]ne of the remedies available for apolitical discharge in violation of first amendment rights isreappointment." Santiago-Negrón v. Castro-Dávila,865 F.2d 431, 437 (1st Cir. 1989). However, the fact that reinstatementis available does not mean that it is inevitable. See Rosario-Torres v.Hernández-Colón, 889 F.2d 314, 321 (1st Cir. 1989). Tosay that reinstatement is available but not inevitable is to declare thatit is a remedy that lies within the discretion of the trial court. Id.(citing Aggarwal v. Ponce Sch. of Medicine, 745 F.2d 723, 727 (1stCir. 1984)). Reinstatement is an equitable remedy and "the hallmark ofequity is the ability to assess all relevant facts and circumstances andtailor appropriate relief on a case by case basis." Rosario-Torres v.Hernández-Colón, 889 F.2d at 321 (citing Burton v. CascadeSch. Dist. Union High Sch. No. 5, 512 F.2d 850, 853-54 (9th Cir.1975)). In other words, "[o]nce a right and a violation have been shown,the scope of a district court's equitable powers to remedy past wrongs isbroad, for breadth and flexibility are inherent in equitable remedies."Rosario-Torres v. Hernández-Colón, 889 F.2d at 321 (quotingSwann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15 (1970)).
A district court must apply its discretion to determine whether underthe circumstances, reinstatement is appropriate. SeeRosa-Velá;zquez v. Figueroa-Gómez, 996 F.2d 425, 428 (1stCir. 1993). Some relevant factors that must be considered are: 1) the strength of the evidence p roving the first amendment violation; 2 whether the discharged employee has found comparable work; 3) whether there is a property right in the position held by the employee; 4) the eligibility of the employee for the position, and whether or not the employee met established qualifications; 5) whether or not the reinstatement would implicate federalism and comity concerns; 6) the length of time which has elapsed between the dismissals and reinstatement; and 7) whether plaintiffs were given a significant monetary award thereby making denial of reinstatement acceptable.Rodríguez-Vázquez v. López-Martínez, No.Civ. 01-1541 (JP), 2003 WL 716661, at *1 (D.P.R. Feb. 21, 2003); seealso Rosa-Velázquez v. Figueroa-Gómez, 996 F.2d at 429;Acevedo-Díaz v. Aponte, 1 F.3d 62, 74 n. 14 (1st Cir. 1993);Hiraldo-Cancel v. Aponte, 925 F.2d 10, 13-14 (1st Cir. 1991);Rosario-Torres v. Hernandez-Colón, 889 F.2d at 322-24.
[263 F. Supp.2d 325]
The consideration of these factors is made without the benefit of anyargument that the Department of Justice might have advanced againstreinstatement. This is so because the co-defendants have failed to file atimely opposition to plaintiff's motion for reinstatement. In any event,after considering the merits of plaintiff's motion and balancing thefactors that militate in favor of and against reinstatement, I concludethat plaintiff should be reinstated in the position he held at theSpecial Investigations Bureau.
First, at least against four of the original seven co-defendants, theevidence presented at trial was sufficient to justify having the jurydetermine that plaintiff's first amendment rights were violated. SeeTejada-Batista v. Fuentes-Agostini, No. 97-1430, 2003 U.S. Dist. LEXIS3651, at *15 (D.P.R. Mar. 10, 2003). Even though the jury found in favorof plaintiff against only two of these defendants, the evidence presentedpointed to a possible finding of liability. Reinstatement in this sense iswarranted.
Second, it has been established that plaintiff has been unable to findcomparable work since the discharge. He worked at a gas station and atthe post office according to what the evidence at trial revealed, but asof today, is unemployed. Thus, this factor weighs substantially in favorof reinstatement.
Third, plaintiff had a property right in the position he held at theDepartment of Justice. He was not an employee at will; rather, he had anexpectation of continued employment at the time he was discharged.Therefore, this factor tips the scales in plaintiff's favor as well.
Additionally, there is nothing in the record to suggest that plaintiffis not eligible for the position he previously held as an agent for theSpecial Investigations Bureau or that a decision in favor of reinstatementwould implicate federalism or comity concerns. The only factor that seemsto go against plaintiff is the length of time which has elapsed betweenthe dismissal and reinstatement. Here, over six years have passed;however, in light of the fact that all other factors are decided inplaintiffs favor, the length of time weighs lightly againstreinstatement. Denial of reinstatement would not be acceptable if oneconsiders an award of damages ($125,000 for loss of income) that barelycovered what plaintiff failed to earn in six years. In the balance ofthese factors, I find that reinstatement is warranted.
Finally, I am mindful that in this context, a court-ordered reunionbetween employer and employee usually burdens government operations withthe hostility and antagonism that as a consequence is revived in theaftermath of litigation. Hiraldo-Cancel v. Aponte, 925 F.2d at 13-14.Nevertheless, "such routinely `incidental' burdens, in their accustomedmanifestations, are foreseeable sequelae [sic] of defendant'swrongdoing, and usually insufficient, without more, to tip the scalesagainst reinstatement when first amendment rights are at stake in asection 1983 action." Rosario-Torres v. Hernández-Colón,889 F.2d at 322. After all, although not a presumptive entitlement undersection 1983, reinstatement may offer significant deterrent and curativevalue in appropriate cases. Hiraldo-Cancel v. Aponte, 925 F.2d at 13.Thus, "`[i]f an employers best efforts to remove an employee forunconstitutional reasons are presumptively unlikely to succeed, thereis, of course, less incentive to use employment decisions to chill theexercise of constitutional rights.'" Hiraldo-Cancel v. Aponte, 925 F.2dat 13 (quoting Allen v. Autauga County Bd. of Educ., 685 F.2d 1302, 1306(11th Cir. 1982)). Accordingly, plaintiff's motion for reinstatement isGRANTED.
[263 F. Supp.2d 326]
II. Plaintiff's Motion for Attorney's Fees
Plaintiff argues that as the prevailing party in this section 1983action, he is entitled to recover attorney's fees under42 U.S.C. § 1988.1 It is plaintiff's contention that although thelanguage of the statute provides the court with the discretion of whetheror not to award such attorney's fees, the Supreme Court has stated thatabsent special circumstances, attorney's fees should be awarded and thatthe discretion of the court is narrow. It is further claimed by theplaintiff that there are no special circumstances in this case that wouldmake the award of attorney's fees unjust. Plaintiff attaches to hismotion a detailed memorandum of the legal services rendered by counseland the time spent. The fees requested are at a rate of $200 perout-of-court hours worked and $225 for in-court hours worked. The totalrequested is $83,193 (377.15 out-of-court hours and 34.50 in-courthours). Plaintiff's request has not been opposed by the co-defendants.
Under the so-called American Rule, parties are ordinarily required tobear their own attorney's fees and the prevailing party is not entitledto collect from the loser. Buckhannon Bd. & Care Home, Inc. v.W. Va. Dep't of Health & Human Res., 532 U.S. 598, 602 (2001) (citingAlyeska Pipeline Servs. Co. v. Wilderness Soc'y, 421 U.S. 240, 247(1975)). Absent explicit statutory authority, a prevailing party will notcollect an award of attorney's fees. Buckhannon Bd. & Care Home,Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. at 602.Congress has, however, authorized the award of attorney s fees under theCivil Rights Act, 42 U.S.C. § 1988. In White v. New Hampshire Dep'tof Employment Sec., 455 U.S. 445, 451-52 (1982) the Court stated that: Section 1988 provides for awards of attorney s fees only to a "prevailing p arty." Regardless of when attorney's fees are requested, the court s decision of entitlement to fees will therefore require an inquiry separate from the decision on the merits — an inquiry that cannot even commence until one party has "prevailed." Nor can attorney's fees fairly be characterized as an element of `relief' indistinguishable from other elements. Unlike other judicial relief, the attorney's fees allowed under § 1988 are not compensation for the injury giving rise to an action. Their award is uniquely separable from the cause of action to be proved at trial.Id. (citation omitted). Plaintiff has to be the "prevailing party"; thatis, he has to succeed on any significant issue in litigation whichachieves some of the benefit he sought in bringing the lawsuit in thefirst place. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Thatdoes not mean that plaintiff has to prevail on every claim and obtain allrelief sought — some relief on the merits is enough. See Richardsonv. Miller, 279 F.3d 1, 3 (1st Cir. 2002).
Furthermore, to calculate a reasonable amount of attorney's fees, thecourt must determine the hours reasonably expended on the litigation,multiplied by a reasonable hourly rate. See Gay Officers Action Leaguev. Puerto Rico, 247 F.3d 288, 295 (1st Cir. 2001). Under this lodestarapproach, the trial judge is
[263 F. Supp.2d 327]
supposed to calculate the time spent bycounsel, subtracting duplicative, unproductive and excessive hours, andthen apply the prevailing rates in the community taking into account theexperience, qualifications and competence of the attorneys involved. Id.In fashioning the award, the records submitted by the attorneys areusually the starting point, but the court's determination is by no meanscircumscribed to what the attorneys submit is the time spent or the ratethey charge. See Gay Officers Action League v. Puerto Rico, 247 F.3d at295. It is the duty of the court "to winnow out excessive hours, timespent tilting at windmills, and the like." Id. at 296 (citing Coutin v.Young & Rubicam Puerto Rico, Inc., 124 F.3d 331, 337 (1st Cir.1997)).
In the application of these principles to the present case, I note twothings. First, I find that there are no special circumstances that wouldrender the award of attorney's fees unjust for the defendants. Second,there is no question that the plaintiff is the "prevailing party" undersection 1988, where the jury found in his favor against two of the fourremaining defendants. In effect, the jury expressly found that plaintiffhad been retaliated against for exercising his First Amendment rights,finding a fortiori that they had done so in violation of suchconstitutional rights that are clearly established. Additionally, eventhough the plaintiff was not successful against all of the defendants,his claims are so interrelated that the work that had to be performed wasthe same be it for seven or just one defendant. It has been held that ifonly partial success is achieved, the total of hours spent on thelitigation as whole may be excessive. See Ramos-Padró v. PuertoRico, 100 F. Supp.2d 99, 107 (D.P.R. 2000) (citing Farrar v. Hobby,506 U.S. 103, 114 (1992)). But, when plaintiff's claims are based ondifferent legal theories and facts, attorney's fees should not be allowedfor the unsuccessful claims that are not related to the successful ones.See Ramos-Padró v. Puerto Rico, 100 F. Supp.2d at 107 (citingTexas State Teacher's Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782,789 (1989)). They are, however, related when they are based on the samelegal theories, they involve a common core of operative facts, or counseldevoted her time to work in the case as a whole making it difficult toallot the services to the differing claims. See Ramos-Padró v.Puerto Rico, 100 F. Supp.2d at 107 (citing Schneider v. Colegio deAbogados de Puerto Rico, 187 F.3d 30, 43 (1st Cir. 1999) (Lipez, J.,concurring)).
Plaintiff filed a sworn statement as well as a detailed memorandumoutlining in categories, chronological order, type of work performed andhours spent on the legal services rendered by his counsel. He claims thathe is entitled to recover reasonable attorney's fees for 377.15out-of-court hours worked and 34.50 in-court hours worked by hisattorney. I find no reason to alter such computation of the time spent inview of the fact that (1) the co-defendants do not dispute it themselvesand; (2) the calculation seems conservative if the court considers thatthis action was filed six years ago and has been replete with proceduralevents. As such, the only issue that remains for determination is thereasonableness of the rate proposed by plaintiff.
Plaintiff claims that a reasonable rate for counsel is $200 an hour forout-of-court services and $225 an hour for in-court work. Under thelodestar approach, the hourly rate should be "in line with thoseprevailing in the community for similar services by lawyers of reasonablycomparable skill, experience and reputation."
[263 F. Supp.2d 328]
Blum v. Stenson, 465 U.S. 886,895 n. 11 (1984). The party seeking the feeshas the burden of showing that the rates sought are comparable withthose in the community. Id.
Plaintiff fails to show that the rates sought are comparable to thosein the community. In addition, I find that a rate of $225 for in-courtwork and $200 for out-of-court work is somewhat high. Therefore, I needto engage in a separate inquiry as to what would be a reasonable rate inaccord with those prevailing in the community for an attorney with theexperience and skill of Irma R. Valldejuli.
Irma R. Valldejuli has been an attorney for 28 years. She graduatedmagna cum laude from the University of Puerto Rico Law School in 1975.There, she was a member of the Law Review and published an article as astudent. She clerked for two United States district judges in thisdistrict including now First Circuit Judge Juan R. Torruella. Since1989, Attorney Valldejuli has been a solo practitioner handling mostlycriminal cases under the Criminal Justice Act and civil rightslitigation. Yet, the only published case in which she has been awardedattorney fees is a 1991 case where the court found the rate of $75 anhour appropriate. See United States v. One Rural Lot, 770 F. Supp. 66, 71(D.P.R. 1991). Other more recent section 1983 cases in this districtreflect the award of higher and lower rates to attorney's with somewhatsimilar experience.2 Thus, since the cases are not all in agreementand since plaintiff fails to show that the rate sought by him iscomparable to those prevailing in the community, I find that a rate of$150 per out-of-court hours worked and $175 per in-court hours worked ismore in line with the rates prevailing in our legal community.Therefore, plaintiff's motion is GRANTED and he is awarded the amount of$56 572.50 (377.15 x $150) for out-of-court hours worked and $6,037.50(34.50 x $175) for in-court hours worked. The total awarded is$62,610.00.
III. Co-defendant Fuentes-Agostini's Motion for Attorney's Fees
Co-defendant Fuentes-Agostini claims that he is the prevailing partywithin the meaning of section 1988. He also argues that as the prevailingparty, he is entitled to an award of attorney's fees because plaintifffiled a frivolous and vexatious lawsuit against him, with unreasonablecontentions and without foundation. It is also Fuentes-Agostini'scontention that in this case "plaintiff clearly incurred in conduct whichcaused unnecessary and vexatious litigation to be incurred by thedefendant." (Docket No. 188, at 5, ¶ 14.) According to him, plaintiffknew early in the litigation that a claim against him was groundless.Thus he requests and award of attorney's fees in the amount of $34,152.50359.25 hours worked at a rate of $125.00 an hour).
Plaintiff opposes such an award. (Docket No. 189.) It is plaintiff'sposition that the claim filed was not frivolous and that continuing topursue a claim against Fuentes-Agostini was reasonable. Moreover,according to plaintiff, even when the court found that the evidencepresented at trial was insufficient as to co-defendant Fuentes-Agostini tosubmit the case to the jury, that fact alone is also insufficient for afinding that at the time of the filing of this lawsuit and its subsequentprosecution, plaintiff insisted in pursuing unfounded
[263 F. Supp.2d 329]
claims. Finally, plaintiff contends that even if the claims are found tobe groundless, the court should still use its discretion and deny theaward.
The standard under 42 U.S.C. § 1988 is that in civil rights cases,fee-shifting in favor of a prevailing plaintiff is the rule, whereasfee-shifting in favor of a prevailing defendant is the exception. SeeBercovitch v. Baldwin Sch., Inc., 191 F.3d 8, 10 (1st Cir. 1999)(citing Casa Marie Hogar Geriátrico, Inc. v. Rivera-Santos,38 F.3d 615, 618 (1st Cir. 1994)). In its discretion, a district courtmay award attorney fees to a prevailing defendant but only upon a findingthat the claim brought against said defendant was frivolous, unreasonableor without foundation even though not brought in bad faith. SeeChristianburg Garment Co. v. E.E.O.C., 434 U.S. 412, 421 (1978); seealso Tang v. R.I., Dep't of Elderly Affairs, 163 F.3d 7, 13 (1st Cir.1998). "Prevailing defendants, under this heightened standard, have amore difficult showing to make to obtain attorney's fees than dosuccessful plaintiffs." Bercovitch v. Baldwin Sch., Inc., 191 F.3d at10. In determining whether the standard has been met by a prevailingdefendant, the court must assess the claim at the time the complaint wasfiled and avoid the post-hoc reasoning that because plaintiff did notultimately prevail, the claim must have been frivolous or unfounded. Tangv. R.I., Dep't of Elderly Affairs, 163 F.3d at 13.
On the facts of this case, I cannot necessarily conclude that at thetime of the filing of the complaint the claim against Fuentes-Agostiniwas completely meritless. However, I do not reach the question of whetherthe claim was frivolous since the co-defendant has failed — despitestating that he had done so — to file a memorandum detailing thehours worked by his attorneys. (See Docket No. 188, at 4, ¶ 12.) Ithas been held that "the absence of detailed contemporaneous timerecords, except in extraordinary circumstances, will call for asubstantial reduction in any award or, in egregious cases, disallowance.Phetosomphone v. Allison Reed Group, Inc., 984 F.2d 4, 8 (1st Cir.1993) (quoting Grendrel's Den, Inc., v. Larkin, 749 F.2d 945, 952 (1stCir. 1984)). Attorneys must submit a full and precise accounting of theirtime, including the number of hours, dates, and the nature of the workperformed. Deary v. City of Gloucester, 9 F.3d 191, 197-98 (1st Cir.1993) (citing Calhoun v. Acme Cleveland Corp., 801 F.2d 558, 560 (1stCir. 1986)). The failure to submit said accounting may result in the feesbeing reduced or in their denial altogether. Deary v. City ofGloucester, 9 F.3d at 198.
Here, without a detailed accounting of the hours worked byco-defendant's attorneys, the court is in no position to determine whichhours are recoverable or to winnow out duplicative, unproductive, orexcessive hours as the court is supposed to do. See Gay Officer ActionLeague v. Puerto Rico, 247 F.3d at 295. Consequently, without consideringthe merits of an award of attorney's fees to co-defendantFuentes-Agostini, the motion is DENIED for lack of a contemporaneous andreliable accounting of the work done.
CONCLUSION
In view of the above, plaintiff's motion for reinstatement is GRANTED.Plaintiff's motion for an award of attorney's fees under42 U.S.C. § 1988 is also GRANTED. Co-defendant Fuentes-Agostini'smotion for the imposition of attorney's fees under section 1988 isDENIED.
ORDER
The Puerto Rico Department of Justice is hereby ORDERED to reinstateplaintiff
[263 F. Supp.2d 330]
Bernabé Tejada-Batista to the position he held as anagent for the Special Investigations Bureau. The Department of Justice isFURTHER ORDERED to provide plaintiff with the salary and benefits hewould have been earning had he not been discharged.
S0 ORDERED
1. "In any action or proceeding to enforce a provision of section[] . . .[42 U.S.C. § 1983], the court, in its discretion, may allow theprevailing party, other than the United 28 States. . ., a reasonableattorney's fee as part of the costs. . . ." 42 U.S.C. § 1988(b)(2003).
2. See, e.g., Rodríguez-Sostre v. Municipio deCanóvanas, Civil No. 99-2094 (JAG), 2003 U.S. Dist. LEXIS 3630, at*6-7 (D.P.R. Mar. 10, 2003); Santiago v. Mercado, 175 F. Supp.2d 164,167-172 (D.P.R. 2001); Libertad v. Sánchez, 134 F. Supp.2d 218,230-35 (D.P.R. 2001); Ramos Padró v. Puerto Rico, 100 F. Supp.2dat 104-08.