No. 20-2083

NELSON JOSÉ PÉREZ-SOSA,

Plaintiff, Appellant,

v.

MERRICK B. GARLAND,* UNITED STATES ATTORNEY GENERAL,

Defendant, Appellee.

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

[Hon. William E. Smith,** U.S. District Judge]

Before

Barron, Selya, and Lipez, Circuit Judges.

Judith Berkan, with whom Mary Jo Méndez and Berkan/Méndez were on brief, for appellant. Mónica P. Folch, Assistant United States Attorney, Southern District of New York, with whom Audrey Strauss, United States Attorney, Southern District of New York, and Benjamin H. Torrance, Assistant United States Attorney, Southern District of New York, were on brief, for appellee.

* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General Merrick B. Garland has been substituted for former Attorney General William P. Barr as the defendant-appellee. ** Of the District Court of Rhode Island, sitting by designation. January 7, 2022 SELYA, Circuit Judge. Once the parties had resolved this bitter employment discrimination dispute, a secondary squabble erupted over the amount of attorneys' fees due to the prevailing party (plaintiff-appellant Nelson Pérez-Sosa). The district court reviewed detailed submissions from the parties and awarded the plaintiff $170,331.56 in attorneys' fees. The plaintiff challenges the architecture of the fee award and argues that it does not reasonably compensate the attorney for her time.

Stripped to its essentials, the plaintiff's appeal challenges the structural integrity of the fee award on the basis of seven distinct rulings. After careful consideration, we affirm all but two of those rulings, reverse those two rulings, vacate the fee award, and remand for further proceedings consistent with this opinion. I. BACKGROUND

For several years, the plaintiff headed the appellate practice of the United States Attorney's Office for the District of Puerto Rico (the Office). During that time frame, the plaintiff appeared as a witness in support of two colleagues, Carmen Márquez- Marín (Márquez) and Francisco Reyes Caparrós (Reyes), each of whom had complained of discriminatory or otherwise improper conduct by the Office, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-2000e-17. In separate proceedings, Márquez and Reyes both won jury verdicts against the

- 3 - Office. See Márquez-Marín v. Barr, 463 F. Supp. 3d 165, 172 (D.P.R. 2020); Reyes Caparrós v. Barr, No. 15-2229, 2020 WL 1487267, at *1 (D.P.R. Feb. 28, 2020), appeal docketed, No. 20- 1792 (1st Cir. Aug. 19, 2020). In addition, Márquez brought a further suit, which is still pending. See Márquez-Marín, 463 F. Supp. 3d at 288 (denying summary judgment).

Some details are helpful. In 2006, the plaintiff testified against the Office at trial in Márquez's original action, which arose from the termination of her employment at the Office. As a result of that action, Márquez was reinstated by court order. Márquez's return to her duties was stormy, and the plaintiff provided testimony favorable to her in further proceedings before the Department of Justice's Equal Employment Opportunity (EEO) officers. The plaintiff also provided testimony favorable to Reyes with respect to his EEO complaint against the Office.

In April of 2016, the plaintiff was passed over for reappointment as Chief of the Appellate Division of the Office (a position he had held, under one title or another, for over twenty years).