October 1, 1992
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
_________________________
No. 91-2152
ANNABELLE LIPSETT,
Plaintiff, Appellee,
v.
GUMERSINDO BLANCO, ET AL.,
Defendants, Appellants.
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ERRATA SHEET
ERRATA SHEET
The opinion of the Court issued on September 23, 1992, is
corrected as follows:
On page 13, line 17 - insert "a basis for" between "show"
and "segregability"
On page 15, line 8 - change "constrained" to "impelled"
On page 15, line 18 - delete "Bluntly" (start sentence with
"There")
On page 16, note 7, line 3 - add, after "category," the
phrase ", or fails so to qualify,"September 23, 1992
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
_________________________
No. 91-2152
ANNABELLE LIPSETT,
Plaintiff, Appellee,
v.
GUMERSINDO BLANCO, ET AL.,
Defendants, Appellants.
________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jaime Pieras, Jr., U.S. District Judge]
___________________
_________________________
Before
Selya, Circuit Judge,
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Campbell, Senior Circuit Judge,
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and Boyle,* District Judge.
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James D. Noel, III, with whom Ledesma, Palou & Miranda were
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on brief, for appellants.
Judith Berkan, with whom Charles S. Hey Maestre and Janice
______________ _______________________ ______
M. Gutierrez Lacourt were on brief, for appellee.
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*Chief Judge, United States District Court for the District of
Rhode Island, sitting by designation.
SELYA, Circuit Judge. In what promises to be the last
SELYA, Circuit Judge.
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trek of a long safari of a case, we are asked to ascertain
whether the district court abused its discretion in awarding
$678,425.25 to the prevailing plaintiff under the Fees Act, 42
U.S.C. 1988 (1988). Finding that the bestowal of attorneys'
fees was overgenerous in certain respects, we reduce the award.
I. OVERVIEW
I. OVERVIEW
Because the merits of this case are no longer in issue
and appellants concede that the plaintiff prevailed, we need not
rehearse the facts. Rather, we offer an overview of what has
transpired to date, referring the reader who may hunger for
exegetic detail to the myriad of published opinions chronicling
the snail's-pace progress of the underlying litigation.1
Plaintiff-appellee Annabelle Lipsett entered the
surgical residency program (Program) at the University of Puerto
Rico School of Medicine (UPR) in July, 1980. She successfully
completed her first year. Lipsett's second and third years in
the Program were rife with controversy, culminating in the
involuntary termination of her residency, effective June 30,
1983.
Lipsett promptly instituted a civil rights action in
federal district court. She alleged, inter alia, gender-based
_____ ____
discrimination and sexual harassment. The initial roster of
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1See, e.g., Lipsett v. UPR, 864 F.2d 881 (1st Cir. 1988);
___ ____ _______ ___
Lipsett v. UPR, 759 F. Supp. 40 (D.P.R. 1991); Lipsett v. UPR,
_______ ___ _______ ___
745 F. Supp. 793 (D.P.R. 1990); Lipsett v. Rive-Mora, 669 F.
_______ _________
Supp. 1188 (D.P.R. 1987); Lipsett v. UPR, 637 F. Supp. 789
_______ ___
(D.P.R. 1986); Lipsett v. UPR, 567 F. Supp. 1217 (D.P.R. 1983).
_______ ___
3
defendants included the present appellants, Gumersindo Blanco,
Jose R. Gonzalez-Inclan, and Pedro Juan Santiago-Borrero.2
Several other persons and institutions were sued along the way,
but over time, the number of defendants dwindled.
When Lipsett's case was finally tried, the jury found
appellants liable for what had befallen to the tune of $525,000
in damages. The district court rejected appellants' post-trial
motions for judgment n.o.v. or a new trial and, at the same time,
denied appellee's post-trial motion for equitable relief. See
___
Lipsett v. UPR, 759 F. Supp. 40 (D.P.R. 1991). The court
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subsequently awarded Lipsett attorneys' fees and costs pursuant
to 42 U.S.C. 1988. Lipsett v. UPR, Civ. No. 83-1516 (D.P.R.
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Sept. 10, 1991) (Fees Op.). This appeal followed.
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II. THE LEGAL LANDSCAPE
II. THE LEGAL LANDSCAPE
Ordinarily, the trial court's starting point in fee-
shifting cases is to calculate a lodestar; that is, to determine
the base amount of the fee to which the prevailing party is
entitled by multiplying the number of hours productively expended
by counsel times a reasonable hourly rate. See Hensley v.
___ _______
Eckerhart, 461 U.S. 424, 433 (1983). Typically, a court proceeds
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to compute the lodestar amount by ascertaining the time counsel
actually spent on the case "and then subtract[ing] from that
figure hours which were duplicative, unproductive, excessive, or
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2During the years 1981 through 1983, Blanco was director of
the department of surgery and chair of UPR's array of residency
training programs; Gonzalez-Inclan was acting director of the
surgical residency program; and Santiago-Borrero was the dean of
the medical school.
4
otherwise unnecessary." Grendel's Den, Inc. v. Larkin, 749 F.2d
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945, 950 (1st Cir. 1984). The court then applies hourly rates to
the constituent tasks, taking into account the "prevailing rates
in the community for comparably qualified attorneys." United
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States v. Metropolitan Dist. Comm'n, 847 F.2d 12, 19 (1st Cir.
______ _________________________
1988); see also Grendel's Den, 749 F.2d at 955. Once
___ ____ _______________
established, the lodestar represents a presumptively reasonable
fee, although it is subject to upward or downward adjustment in
certain circumstances. See Blum v. Stenson, 465 U.S. 886, 897
___ ____ _______
(1984).
On appeal, a fee award is reviewable only for mistake
of law or abuse of discretion. See Foley v. City of Lowell, 948
___ _____ ______________
F.2d 10, 18 (1st Cir. 1991); Wojtkowski v. Cade, 725 F.2d 127,
__________ ____
130 (1st Cir. 1984). The trial court's discretion in respect to
fee awards is extremely broad. See, e.g., Foley, 948 F.2d at 19;
___ ____ _____
Metropolitan Dist. Comm'n, 847 F.2d at 14. Because this is so,
_________________________
and because determination of the extent of a reasonable fee
necessarily involves a series of judgment calls, an appellate
court is far more likely to defer to the trial court in reviewing
fee computations than in many other situations. See Rogers v.
___ ______
Okin, 821 F.2d 22, 30 (1st Cir. 1987), cert. denied, 484 U.S.
____ _____ ______
1010 (1988).
III. ANALYSIS
III. ANALYSIS
In this instance, the district court set the lodestar
amount at $552,439 and then increased the amount to $678,425.25.
Appellants say that this award reflects a cavalcade of errors.
5
Their plaints fit into two categories. The first category
consists of a series of challenges to the lodestar computation
itself. The second category consists of allegations that
enhancement was unjustified. We consider each category in turn.
A. Calculation of the Lodestar.
A. Calculation of the Lodestar.
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For purposes of discussion, we subdivide this cluster
of grievances into four components.
1. Recordkeeping. Appellants single out certain time
1. Recordkeeping.
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records and assail the manner in which Lipsett's attorneys
maintained them. They argue that these records failed to satisfy
the relevant legal standard because, in some instances, the
entries were not inscribed at the same time the work was
performed and, in other instances, the entries were too general.
a.
a.
__
It is important to note that the records at issue here
are not subject to a single, uniform standard. Prior to 1985, we
required that fee-seeking attorneys submit billing records
sufficient to comprise a meaningful accounting of time expended.
We warned that "bills which simply list a certain number of hours
and lack such important specifics as dates and the nature of the
work performed during the hour or hours in question should be
refused." King v. Greenblatt, 560 F.2d 1024, 1027 (1st Cir.
____ __________
1977), cert. denied, 438 U.S. 916 (1978); accord Souza v.
_____ ______ ______ _____
Southworth, 564 F.2d 609, 612 (1st Cir. 1977). Under this
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standard, the records need not have been created
contemporaneously with the lawyer's performance of the recorded
6
task. See Grendel's Den, 749 F.2d at 951-52 (allowing recovery
___ ______________
of fees under the King standard for hours expended before 1985
____
although the fee-seeking attorneys had not maintained
contemporaneous time records).
On December 5, 1984, we announced a new, less forgiving
standard: "Henceforth, in cases involving fee applications for
services rendered after the date of this opinion, the absence of
detailed contemporaneous time records, except in extraordinary
circumstances, will call for a substantial reduction in any award
or, in egregious cases, disallowance." Id. at 952. Because the
___
new rule was not meant to apply retroactively, Calhoun v. Acme
_______ ____
Cleveland Corp., 801 F.2d 558, 560-61 (1st Cir. 1986), the King
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standard applies to the pre-1985 billing records in this case and
the Grendel's Den standard applies to the post-1984 billing
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records.3
b.
b.
__
We find no abuse of discretion in the district court's
acceptance of the records presented under the King regime. These
____
submissions adequately limn the different tasks performed, the
nature of the work, the time consumed, and the dates when effort
was expended. In sum, the pre-1985 time records, overall, fell
sufficiently within the general parameters of the King standard
____
that the district court, in the exercise of its informed
____________________
3We use the euphemisms "pre-1985" and "post-1984" in
reference to billing records which, respectively, predate and
postdate the publication of our opinion in Grendel's Den
______________
(December 5, 1984).
7
discretion, could appropriately credit them. While many of the
records are not models of clarity, the King regime did not
____
require either exhaustive detail or infinite precision.
c.
c.
__
The billing records submitted for tasks completed after
1984 are more of a mixed bag. Although most of those records
pass muster under the heightened Grendel's Den standard,
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appellants have directed our attention to several entries
containing only gauzy generalities. These entries which total
81.2 hours4 are so nebulous that they fail to "allow[] the
paying party to dispute the accuracy of the records as well as
the reasonableness of the time spent." Calhoun, 801 F.2d at 560.
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Accordingly, the entries should have been substantially
discounted. See Grendel's Den, 749 F.2d at 952.
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2. Overstaffing. Appellants also claim that the
2. Overstaffing.
____________
plaintiff overstaffed the case. Specifically, appellants claim
that Marilucy Gonzalez, an attorney, and Nelly Rivera Marrero, a
paralegal, were excess baggage at trial. Lipsett defends the
presence of multiple lawyers, plus a paralegal, asserting that a
larger-than-average legal team was desirable due to the complex
nature of the case and the reams of evidence which needed to be
tracked and analyzed. After examining these conflicting claims,
the court below found the challenged staffing practices were
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4The entries in question include 16.7 hours of Attorney
Berkan's time; 8.75 hours of Attorney Lugo's time; 26.4 hours of
Attorney Hey Maestre's time; 19.7 hours of Attorney Vicente's
time; 5.65 hours of Attorney Gonzalez's time; and 4 hours
expended by a paralegal, Nelly Rivera Marrero.
8
reasonable. Although we think the district judge was guilty of
hyperbole in characterizing the populous staffing as
"unavoidable," we see no basis for disturbing his core finding
that the staffing was "reasonable."
As a general matter, "the time for two or three lawyers
in a courtroom or conference, when one would do, 'may obviously
be discounted.'" Hart v. Bourque, 798 F.2d 519, 523 (1st Cir.
____ _______
1986) (quoting King, 560 F.2d at 1027); accord Grendel's Den, 749
____ ______ _____________
F.2d at 953. Fee-shifting statutes are designed to "ensure
effective access to the judicial process for persons with civil
rights grievances," Hensley, 461 U.S. at 429 (citation and
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internal quotation marks omitted), not to serve as full
employment or continuing education programs for lawyers and
paralegals. A trial court should ordinarily greet a claim that
several lawyers were required to perform a single set of tasks
with healthy skepticism. See United Nuclear Corp. v. Cannon, 564
___ ____________________ ______
F. Supp. 581, 590 (D.R.I. 1983) (suggesting that, in fee-shifting
milieu, district courts "must zealously guard against any
propensity to over-staff litigation"). In the last analysis,
however, staffing issues are often best resolved by the trial
court's application of its intimate, first-hand knowledge of a
particular case's nuances and idiosyncracies. See, e.g.,
___ ____
Wagenmann v. Adams, 829 F.2d 196, 224-25 (1st Cir. 1987).
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This case was bitterly contested. Appellants mounted a
Stalingrad defense, resisting Lipsett at every turn and forcing
her to win her hard-earned victory from rock to rock and from
9
tree to tree. Since a litigant's staffing needs often vary in
direct proportion to the ferocity of her adversaries' handling of
the case, this factor weighs heavily in the balance. The record
reflects that the court below carefully considered the parties'
importunings in light of the relevant policies and precedents,
concluding that the staffing, though abundant, was "reasonable
and necessary given the nature of the case." Keeping in mind the
complexity of the litigation, the considerable burdens it placed
upon plaintiff's counsel, the number of defendants, and the
defense's formidable staffing patterns, we decline to interfere
with Judge Pieras' assessment of the situation. See generally
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Metropolitan District Comm'n, 847 F.2d at 18 (refusing to second-
____________________________
guess interstitial determinations in the computation of a fee
award "if the trial judge's determinations seem plausible, given
what has transpired in the litigation"); Wagenmann, 829 F.2d at
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224 (hesitating, in the same context, to "nitpick what are
essentially factual matters"); Johnson v. University College of
_______ ______________________
the Univ. of Ala., 706 F.2d 1205, 1208 (11th Cir.) ("The
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retaining of multiple attorneys in a significant, lengthy
employment discrimination case . . . is understandable and not a
ground for reducing the hours claimed."), cert. denied, 464 U.S.
_____ ______
994 (1983).
3. Clerical Tasks/Professional Rates. Appellants
3. Clerical Tasks/Professional Rates.
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isolate certain hours which Lipsett's paralegals and lawyers
billed at their customary rates, but which appellants claim
involve clerical tasks. We bifurcate our analysis of this
10
contention, treating paralegals and lawyers separately.
a.
a.
__
We begin by considering 24.95 hours attributed to
paralegals hours that appellants urge were improperly factored
into the fee award. The efficient use of paralegals is, by now,
an accepted cost-saving device. Recognizing this reality, courts
generally allow hours reasonably and productively expended by
paralegals in civil rights litigation to be compensated at market
rates when constructing fee awards.5 See Jacobs v. Mancuso, 825
___ ______ _______
F.2d 559, 563 & n.6 (1st Cir. 1987); United Nuclear, 564 F. Supp.
______________
at 589-90 & n.6. The Supreme Court has given its blessing to
such a practice, stating: "By encouraging the use of lower cost
paralegals rather than attorneys wherever possible, permitting
market-rate billing of paralegal hours encourages cost-effective
delivery of legal services and, by reducing the spiraling cost of
civil rights litigation, furthers the policies underlying civil
rights statutes." Missouri v. Jenkins, 491 U.S. 274, 288 (1989)
________ _______
(citation and internal quotation marks omitted).
In setting fees, the district court has broad
discretion to determine "how much was done, who did it, and how
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5Whether paralegal hours may be billed at a market rate
ultimately depends upon whether such a practice is common in the
relevant legal market. See Missouri v. Jenkins, 491 U.S. 274,
___ ________ _______
288 (1989). In this case, appellants have not contended that
market-rate billing of paralegal hours was uncommon in Puerto
Rico at the time of this litigation. Hence, we deem any such
contention waived. See Fournier v. Best W. Treasure Island
___ ________ _________________________
Resort, 962 F.2d 126, 127 (1st Cir. 1992) (issues neither briefed
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nor argued are waived); United States v. Zannino, 895 F.2d 1, 17
_____________ _______
(1st Cir.) (same), cert. denied, 494 U.S. 1082 (1990).
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11
effectively the result was accomplished." Wagenmann, 829 F.2d at
_________
224. Having reviewed the disputed entries in light of this
principle, we find that the paralegal fees were properly
assessed. The tasks performed filing motions, translating
depositions, and the like fell into the gray area between
purely clerical tasks and those properly entrusted to a
paralegal. It is precisely in such gray areas that the district
court's judgment carries the greatest weight. In this instance,
moreover, the judge allowed the hours but pruned the
reimbursement rate by forty percent (from $50/hr. to $30/hr.).
In the totality of the circumstances, we discern no abuse of
discretion in respect to the court's judicious handling of the
contested hours.
b.
b.
__
We turn next to 10.6 hours which appellants asseverate
were improperly charged as attorneys' time. We agree with
appellants' basic premise: clerical or secretarial tasks ought
not to be billed at lawyers' rates, even if a lawyer performs
them. See Jenkins, 491 U.S. at 288 n.10; Action on Smoking &
___ _______ ____________________
Health v. Civil Aeronautics Bd., 724 F.2d 211, 222 (D.C. Cir.
______ ______________________
1984).
We also agree with the conclusion that appellants draw
from this premise. The disputed hours involve nothing more than
translations of documents and court filings. The district court
allowed this time to be compensated at a rate of $150/hr. That
rate is incommensurate to the nature of the tasks. The hours
12
should not be completely eliminated but should be compensated at
a less extravagant rate. See Jenkins, 491 U.S. at 288 n.10.
___ _______
4. Interrelated Claims. Appellants launch several
4. Interrelated Claims.
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broadsides directed at hours that were allegedly excessive
because they were expended on claims that were ultimately
unsuccessful. For example, appellants contend that, because the
plaintiff did not prevail on her requests for reinstatement and
other equitable relief, her attorneys' fees should be decreased
by twenty percent.6 Similarly, appellants calumnize the
district court's allowance of time spent by plaintiff's legal
team in jousting with those defendants who managed to escape
liability and in fruitlessly pursuing a procedural due process
claim. Because we find no abuse of discretion in the trial
court's determination that the work done on these unsuccessful
claims was sufficiently interconnected with the causes of action
upon which appellee prevailed, we refuse to grant the requested
reductions.
Once a court determines that a party has prevailed
within the terms of a fee-shifting statute,
the question becomes whether the claims on
which [she] lost in the same suit were
unrelated to the successful ones (in which
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event no fees may be awarded for the work on
the unsuccessful claims), or whether,
instead, the losing claims included "a common
core of facts" or were "based on related
legal theories" linking them to the
successful claim. In the latter event, the
award may include compensation for legal work
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6It is unclear how appellants arrived at this percentage,
short of plucking the number out of thin air.
13
performed on the unsuccessful claims.
Garrity v. Sununu, 752 F.2d 727, 734 (1st Cir. 1984) (quoting
_______ ______
Hensley, 461 U.S. at 435). We have reaffirmed this doctrine of
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interrelatedness on numerous occasions. See, e.g., Domegan v.
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Ponte, ___ F.2d ___, ___ (1st Cir. 1992) [No. 91-1625, slip op.
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at 49-54]; Nydam v. Lennerton, 948 F.2d 808, 812 (1st Cir. 1991);
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Culebras Enterps. Corp. v. Rivera-Rios, 846 F.2d 94, 102 (1st
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Cir. 1988); Wagenmann, 829 F.2d at 225; Aubin v. Fudala, 782 F.2d
_________ _____ ______
287, 291 (1st Cir. 1986). In doing so, we have noted that "the
extent of a plaintiff's success in a civil rights suit is a
practical question, involving a qualitative, as well as
quantitative, judgment." Aubin, 782 F.2d at 290. In such cases,
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"[t]he fee should not be derived through any mechanical formula.
It is an equitable judgment entrusted to the discretion of the
factfinder, to be made on the basis of all the circumstances of
the litigation." General Dynamics Corp. v. Horrigan, 848 F.2d
______________________ ________
321, 325 (1st Cir.) (citations omitted), cert. denied, 488 U.S.
_____ ______
992 (1988). Furthermore, "[w]here it would be an 'exercise in
futility' to separate out the legal services rendered for each
claim, the fee should simply be determined as a function of
degree of success." Id. (quoting Garrity, 752 F.2d at 735); cf.
___ _______ ___
Hensley, 461 U.S. at 435 (at bottom, "[t]he result is what
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matters"). If the fee-seeker properly documents her claim and
plausibly asserts that the time cannot be allocated between
successful and unsuccessful claims, it becomes the fee-target's
burden to show a basis for segregability.
14
In reviewing determinations that claims are or are not
interrelated for purposes of an award of attorneys' fees, we have
exhibited great deference to the trial court's discretion. See
___
Domegan, ___ F.2d at ___ [slip op. at 50]. This deference is
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motivated by our conviction that "the decision as to how to
separate the wheat from the chaff in a fees contest, within broad
limits, is a matter for the district court's discretion."
Metropolitan Dist. Comm'n, 847 F.2d at 17. It is the district
__________________________
judge, not his or her appellate colleagues, who has "had a front-
row seat at the trial and before." Wagenmann, 829 F.2d at 225.
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In this case, we are unmoved by appellants' conclusory
allegation that a large portion of the fee award was undeserved
because many of the compensated hours were actually expended on
claims unrelated to the claims on which plaintiff succeeded. For
one thing, appellants have done little to carry their burden of
showing that hours which the district court found to be
hopelessly blended were in fact segregable. For another thing,
the hours devoted to the procedural due process violation, the
claims against the dismissed defendants, and the request for
injunctive relief involved, by and large, a tightly wrapped core
of common facts shared with the claims upon which the plaintiff
prevailed a circumstance that lends great credibility to the
district court's decision.
We will not paint the lily. Lipsett's stunning victory
and the series of minor setbacks suffered en route to that
victory arose out of a single series of events. It is beyond
15
question that the end result represented a pronounced legal and
pecuniary triumph for her. In the process, she prevailed on her
most significant claims. When interrelatedness is in question,
the overall degree of the prevailing party's success is an
important datum. See Garrity, 752 F.2d at 734; see also Hensley,
___ _______ ___ ____ _______
461 U.S. at 435. Moreover, the district court wrote a thorough
and detailed opinion reviewing the imbrication between the
successful and unsuccessful claims. See Fees Op. at 18-22. The
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court's words carry considerable convictive force. Although we,
if writing on a pristine page, might have been more miserly, we
are impelled in this instance to defer to the trial court's
determination that the requisite linkage was forged. See
___
Wagenmann, 829 F.2d at 225 (holding that a refusal to separate
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out time spent on distinct claims is within the trial court's
discretion if the claims are "so factually imbricated . . . as to
make separate treatment of the constituent attorney time
inappropriate").
Before leaving this terrain, we feel constrained to
recognize a mathematical anomaly. The lodestar, as we compute
it, yields more dollars for counsel ($545,281.37) than the damage
award yields for plaintiff ($525,000). In the ordinary course of
events, one would not expect a fee award to outpace a substantial
award of money damages. In this instance, the discrepancy is
explained largely by what we have referred to as the "Stalingrad
defense." While this hard-nosed approach to litigation may be
viewed as effective trench warfare, it must be pointed out that
16
such tactics have a significant downside. The defendants suffer
the adverse effects of that downside here. There is a corollary
to the duty to defend to the utmost the duty to take care to
resolve litigation on terms that are, overall, the most favorable
to a lawyer's client. Although tension exists between the two
duties, they apply concurrently. When attorneys blindly pursue
the former, their chosen course of action may sometimes prove to
be at the expense of the latter.
B. Enhancement of the Lodestar.
B. Enhancement of the Lodestar.
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The district court applied a fifty percent multiplier
to a portion of the attorneys' hours. Judge Pieras gave two
reasons. First, he cited the quality of service (extremely high)
and the degree of success (very great). Second, he found that
the lawyers' fees were contingent on success and that the
aleatory nature of the engagement warranted an enhancement to
compensate for the risk of nonpayment. We approach this phase of
our inquiry mindful that determining whether a particular type of
enhancement to a lodestar is legally viable involves mainly a
question of law. Thus, appellate review of such determinations
is plenary.7 See, e.g., Dedham Water Co. v. Cumberland Farms
___ ____ ________________ _________________
Dairy, Inc., ___ F.2d ___, ___ (1st Cir. 1992) [No. 91-2116, slip
___________
____________________
7If, however, the theory behind an enhancement is
categorically acceptable, the district court's finding that the
case itself fits factually within the subject category, or so
fails to qualify, is reviewed under a more deferential standard.
See Blum, 465 U.S. at 896-902 (reviewing lodestar enhancement for
___ ____
abuse of discretion); Jones v. Central Soya Co., 748 F.2d 586,
_____ ________________
589-91 (11th Cir. 1984) (reviewing denial of lodestar enhancement
on an abuse-of-discretion standard).
17
op. at 8] (holding that claimed "errors of law are subject to
plenary review"); Brewer v. Madigan, 945 F.2d 449, 452 (1st Cir.
______ _______
1991) (same).
1. Exceptional Performance/Results Enhancement. The
1. Exceptional Performance/Results Enhancement.
____________________________________________
Supreme Court has stated that, in some cases, the lodestar may
not actually represent a reasonable attorneys' fee, and thus, may
require upward adjustment. See Blum, 465 U.S. at 897; Hensley,
___ ____ _______
461 U.S. at 435. But, we have repeatedly cautioned that such
enhancements will be rare. See, e.g., Wildman v. Lerner Stores
___ ____ _______ _____________
Corp., 771 F.2d 605, 610 (1st Cir. 1985). The exception is a
_____
tiny one and we will not permit it to eclipse the rule.
While some precedent holds out the possibility of
enhancing the lodestar for exceptional performance and results,
see, e.g., Blum, 465 U.S. at 896-901; Hensley, 461 U.S. at 435;
___ ____ ____ _______
Conservation Law Found. of N.E., Inc. v. Secretary of the
__________________________________________ __________________
Interior, 790 F.2d 965, 971 (1st Cir. 1986); Wildman, 771 F.2d
________ _______
at 610, more recent cases go a long way toward dampening this
option. For example, in Pennsylvania v. Delaware Valley
____________ ________________
Citizens' Council for Clean Air, 478 U.S. 546 (1986) (Delaware
________________________________ ________
Valley I), the Supreme Court counselled:
________
Because considerations concerning the quality
of a prevailing counsel's representation
normally are reflected in the reasonable
hourly rate, the overall performance
ordinarily should not be used to adjust the
lodestar, thus removing any danger of "double
counting."
Id. at 566. In the same case, Justice White wrote that "the
___
18
lodestar figure includes most, if not all, of the relevant
factors constituting a 'reasonable' attorneys' fee, and it is
unnecessary to enhance the fee for superior performance in order
to serve the statutory purpose of enabling plaintiffs to secure
legal assistance." Id. Thereafter, we ventured to say that
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Delaware Valley I made "clear that adjustments are not to be
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given in reward for stellar performance." Hall v. Ochs, 817 F.2d
____ ____
920, 929 (1st Cir. 1987).
To be sure, both Delaware Valley I and Hall contain
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language intimating that there exists a strong presumption, not
an outright ban, against exceptional performance/results
enhancements. See Delaware Valley I, 478 U.S. at 566 ("[O]verall
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performance ordinarily should not be used to adjust the lodestar
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. . . .") (emphasis supplied); Hall, 817 F.2d at 929
____
("[E]xceptional performance is generally a function of the
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competence and experience that is reflected in the reasonable
hourly rate . . . .") (emphasis supplied). We have no occasion
to probe these hypothetical possibilities today. Even if there
may be some few cases where a combination of sterling performance
and exceptional results could conceivably justify a premium fee,
this case would not fulfill the necessary criteria.
The court below awarded full, current rates to
Lipsett's counsel rates which we believe adequately reflected
the lawyers' superior skills and the superb results obtained.
Although we do not gainsay either the strength of the attorneys'
performance or the magnitude of their triumph, we see nothing in
19
the record that indicates that the services and results
overshadowed, or somehow dwarfed, the lodestar. In short, the
lodestar fee, unembellished, represented the reasonable
attorneys' fee assured by section 1988. Thus, an enhancement
cannot be justified on the grounds of exceptional service and
results.
2. Contingency Enhancement. At the time this case was
2. Contingency Enhancement.
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decided below, this circuit allowed enhancement for risk of
nonpayment in exceptional contingent-fee cases if certain
criteria were met. See Cortes-Quinones v. Jimenez-Nettleship,
___ _______________ __________________
842 F.2d 556, 564 (1st Cir.), cert. denied, 488 U.S. 823 (1988);
_____ ______
Wildman, 771 F.2d at 614. In its most recent pronouncement on
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the subject, however, the High Court has effectively foreclosed
such enhancements, ruling that "enhancement for contingency
[under fee-shifting statutes] is not permitted." City of
________
Burlington v. Dague, 112 S. Ct. 2638, 2643 (1992). That ends the
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matter. Although the federal fee-shifting statutes at issue in
Dague were provisions of the Solid Waste Disposal Act and Clean
_____
Water Act, respectively, the Court's reasoning applies full bore
to the Fees Act, 42 U.S.C. 1988, a fee-shifting statute which,
in the Court's words, contains "language . . . similar to" the
statutes at issue in Dague. 112 S. Ct. at 2641. We hold,
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therefore, that when a prevailing party seeks an attorneys' fee
award in a civil rights case in pursuance of the Fees Act,
enhancement of the lodestar because of counsel's risk of
nonpayment is not permitted.
20
This ruling brings down the final curtain on
plaintiff's attempt to retain the enhancement awarded by the
court below. In granting the enhancement, the court reasoned
that "these attorneys would not have received any payment had the
suit not been successful." The Supreme Court has now made it
pellucidly clear, however, that such risks should play no part in
enhancing a lodestar fee. To the extent that the risk stems from
"the legal and factual merits of the claim, . . . the consequence
of awarding contingency enhancement . . . would be to provide
attorneys with the same incentive to bring relatively meritless
claims as relatively meritorious ones." Id. at 2641-42. Thus,
___
insofar as the lower court's enhancement accounted for the risk
of nonpayment, its decision created precisely the kind of skewed
incentive that the Supreme Court has flatly rejected. By the
same token, to the extent that the risk of loss can be attributed
to the "difficulty of establishing" the merits of the claim, this
difficulty is already "reflected in the lodestar." Id. at 2641.
___
3. Summary of Enhancement Issues. We decline the
3. Summary of Enhancement Issues.
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temptation to cart coal to Newcastle. In this case, the
lodestar, properly computed, exceeded half a million dollars.
That substantial figure fully accounted for (a) the time and
skill needed to address the rigors of this admittedly complex
case, (b) the significant victory the plaintiff achieved, and (c)
the contingent nature of the attorneys' employment. Whether we
take the district court's rationales together or separately, we
must conclude that the court erred in enhancing the lodestar.
21
IV. REMEDY
IV. REMEDY
It is often the case that an improper calculation of
attorneys' fees necessitates remand for reconfiguration of the
award but that is not always true. Where, as here, the record
is sufficiently developed that we can apply the law to the facts
before us and calculate a fair and reasonable fee without
resorting to remand, that route is available to us. See Foster
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v. Mydas Assocs., Inc., 943 F.2d 139, 141 n.4, 144 n.8 (1st Cir.
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1991); Jacobs, 825 F.2d at 562; Hart, 798 F.2d at 523; Grendel's
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Den, 749 F.2d at 951. Mindful, as we are, of the Court's
___
admonition that a "request for attorney's fees should not result
in a second major litigation," Hensley, 461 U.S. at 437, we
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believe that this case lends itself to such an approach. After
careful consideration, we have decided that we need not remand
this case to perform the essentially mechanical task of
implementing our rulings. We conclude, therefore, with an
accounting of our handiwork.8
The disputed post-1984 recordkeeping hours, Part
III(A)(1)(c), supra, should be slashed by fifty percent,
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amounting to a decrease of $5885.63 in the award. The disputed
pseudo-clerical hours, Part III(A)(3)(b), supra, should be
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charged at a reduced rate equal to the paralegal rate ($30 per
hour), thereby diminishing the award by $1,272. The entire
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8On appeal, appellants have not challenged the district
court's lodestar-related rate determinations (which range from
$50/hr. to $175/hr. for the various attorneys and $30/hr. for the
paralegal). We have applied these hourly rates in our revision
of the award.
22
amount of the enhancement, Part III(B), supra, should be
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subtracted, amounting to a further decrease of $125,986.25.
We need go no further. Appellants' remaining arguments
do not warrant discussion. As explained above, we reduce the fee
award from $678,425.25 to $545,281.37. In all other respects,
the award may stand. Interest shall accrue on the modified
judgment as provided by 28 U.S.C. 1961 (1988). See Foley, 948
___ _____
F.2d at 22. No fees or costs shall be payable to or by any party
with respect to services rendered in connection with this appeal.
Affirmed as modified. No costs.
Affirmed as modified. No costs.
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