Garcia-Rubiera v. Fortuno ( 2013 )

  •           United States Court of Appeals
                          For the First Circuit
    No. 12-2002
                      GLADYS GARCÍA-RUBIERA ET AL.,
                         Plaintiffs, Appellants,
                LUIS G. FORTUÑO, Governor of Puerto Rico;
              JUAN CARLOS PUIG-MORALES, Treasury Secretary,
                          Defendants, Appellees.
                     FOR THE DISTRICT OF PUERTO RICO
              [Hon. Gustavo A. Gelpí, U.S. District Judge]
                            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
    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
    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
                 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
    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.
                 On remand following our decision in García-Rubiera II,
    plaintiffs     sought    a    permanent       injunction   requiring     the
    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
           Named Defendant Luis G. Fortuño is the former governor of
    Puerto Rico. Named Defendant Carlos Puig-Morales is the former
    treasury secretary.
           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.
    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
                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
    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
          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.
           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.
    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,
                    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
                    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
           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.
    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
    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
    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
    and how to expand the class definition to the district court on
         2.   The time period within which class members may seek
                 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.
           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).
                 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
    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
    reasonably ensure a reasonable opportunity to avoid loss of the
         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
    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
    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
                 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
    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
    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-
           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.
    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
           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
    Publication notice in an English-language newspaper is a reasonable
    step in reaching this portion of the population.
    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
               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
    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
    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
    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
    =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
    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
                  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
           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.
    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
    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.
    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
    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
    award interim fees would create a considerable risk of starving out
    plaintiffs with what we have already determined to be good claims."
                   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
    before a case has been definitively resolved on the merits.    In re
    Nineteen Appeals Arising Out of San Juan Dupont Plaza Hotel Fire
    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.
              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
    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
    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
           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.
    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.