
USCA1 Opinion

	




          January 20, 1993                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1117                                 NENH PHETOSOMPHONE,                                Plaintiff, Appellant,                                          v.                 ALLISON REED GROUP, INC. d/b/a TECHNI-CRAFT PLATING,                            NOEL SMITH AND CAROL MARSELLA,                                Defendants, Appellees.                                _____________________        No. 92-1118                                   GARY SHOWALTER,                                Plaintiff, Appellant,                                          v.                ALLISON REED GROUP, INC. d/b/a/ TECHNI-CRAFT PLATING,                            NOEL SMITH AND CAROL MARSELLA,                                Defendants, Appellees.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                               Torruella, Circuit Judge,                                          _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Susan  Deveney with  whom Michael  R.  Hagopian  was on  brief for            ______________            _____________________        appellants.            Elizabeth A. Del Padre for appellee Noel Smith.            ______________________            Steven A.  Robinson with  whom Shayle  Robinson was  on brief  for            ___________________            ________________        appellee Allison Reed Group, Inc. d/b/a/ Techni-Craft Plating.                                 ____________________                                 ____________________                 BOUDIN,  Circuit  Judge.     Gary  Showalter  and   Nenh                          ______________            Phetosomphone, plaintiffs in the district court,  appeal from            that  court's  award  of  attorneys'  fees  following   their            successful Title  VII suit.    Because we  conclude that  the            district court  did not abuse its  considerable discretion in            determining an appropriate fee award, we affirm.                                          I.                 Plaintiffs  brought  separate suits,  later consolidated            for trial, against Allison Reed Group, Inc. ("Allison Reed"),            Noel Smith and Carol  Marsella, alleging that plaintiffs were            the  victims of sexual harassment in the workplace.  In their            complaints,  plaintiffs  sought  equitable   and  declaratory            relief and back pay under  Title VII of the Civil  Rights Act            of 1964, 42  U.S.C.   2000e et seq., as  well as compensatory                                        __ ____            damages under  Rhode Island law  for the tort  of intentional            infliction of emotional distress.                 Plaintiffs' tort  claim against Smith  and Marsella  was            tried to a jury, and the Title VII claim against Allison Reed            and Smith was tried  simultaneously to the court.1   The jury            returned  a verdict in  favor of defendants  on the state-law            claim.    The  court  ruled,  however,  that  plaintiffs  had            established  a claim  of  sexual harassment  under Title  VII                                            ____________________                 1The district court directed  a verdict for Allison Reed            on the state-law count at the close of plaintiffs' case.  The            court also ruled that Marsella was not a statutory "employer"            under Title VII and was therefore not a proper defendant with            respect to that count.                                         -2-                                         -2-            against Allison Reed and Smith.   The court ordered defendant            Allison  Reed to establish  a procedure for  claims of sexual            harassment,  and  enjoined  it  from  allowing  future sexual            harassment  of  Showalter should  he  return to  work.2   The            court  found  that  Phetosomphone  had   been  constructively            discharged  as a result of the sexual harassment and had been            out  of work for eight weeks, and  it awarded him back pay of            $1,737.60  plus  prejudgment  interest.     The  factual  and            procedural background of this case and the court's rulings on            the  merits are set forth  in detail in  Showalter v. Allison                                                     _________    _______            Reed Group, Inc., 767 F. Supp. 1205 (D.R.I. 1991).              ________________                 After  its decision  on the  merits, the  district court            invited  plaintiffs to  submit an  application for  costs and            attorneys'  fees pursuant  to 42  U.S.C.    2000e-5(k).   The            court stated that "[t]he application for counsel fees must be            supported  by a detailed,  contemporaneous accounting  of the            time spent by the attorneys  on this case."  767 F.  Supp. at            1215.  Plaintiffs'  counsel submitted an  application seeking            attorneys' fees  and costs  totalling $83,177.   The district            court  held  a  hearing  on  the  application,  and  directed                                            ____________________                 2At the time of  trial, Showalter was out of work due to            a  back  injury  and  was  receiving  worker's  compensation.            Because Showalter had not left his  employment because of the            harassment but  rather on account  of the  injury, the  court            held  that Showalter was not entitled to back pay.  The court            awarded Showalter $1 in nominal damages.                                         -3-                                         -3-            plaintiffs to submit  additional documentation in support  of            their claim.                 The district  court ultimately allowed  only $12,762  in            fees and  $240 in costs.  The  court issued a 13-page opinion            explaining  in detail  its reasons  for sharply  limiting the            award both as to  hours allowed and the hourly  rate claimed.            The court attached to its opinion a 16-page appendix in which            it  itemized  each  expenditure  of counsel  time  for  which            compensation  was  sought,  and  identified  which  had  been            allowed  and which had been reduced or stricken.  This appeal            followed.                                         II.                 Title VII  provides that "[i]n any  action or proceeding            under this subchapter the court, in its discretion, may allow            the prevailing party, other than the Commission or the United            States,  a reasonable attorney's  fee (including expert fees)            as  part  of  the  costs . . . ."  42  U.S.C.     2000e-5(k).            Accordingly, an award of  fees under the statute is  reviewed            primarily  under an  abuse  of discretion  standard, and  the            trial  court's range  of  discretion  is particularly  broad.            United States v.  Metropolitan Dist. Comm'n, 847  F.2d 12, 14            _____________     _________________________            (1st Cir.  1988).  We have  advised parties on more  than one            occasion  that "the  battle [over  attorneys' fee  awards] is            likely to  be determined in the trial court."  E.g., Foley v.                                                           ___   _____            City of Lowell,  948 F.2d 10, 19 (1st Cir.  1991).  Moreover,            ______________                                         -4-                                         -4-            "the  fee  applicant   bears  the   burden  of   establishing            entitlement to an award and documenting the appropriate hours            expended and hourly  rates."  Hensley v.  Eckerhart, 461 U.S.                                          _______     _________            424, 437 (1983).                 In Hensley, the Supreme Court explained that "[t]he most                    _______            useful  starting  point  for  determining  the  amount  of  a            reasonable fee is  the number of hours reasonably expended on            the litigation multiplied by a reasonable hourly  rate,"  461            U.S.  at 433, adding that  adjustments could then  be made to            reflect   "other   considerations"   including  the   results            obtained.   Id. at  434.   In this  case, the  district court                        __            determined compensable hours as follows:  it discounted hours            such as trial time to exclude time needed only because of the            presence of  the state  claim; it  disallowed hours  spent on            specific matters  that by their  nature could relate  only to            the state-law  claim; and  it disallowed hours  documented so            generally that the court could not determine their connection            to the Title VII  claim.3  Having  derived a total number  of            allowable hours, the court then multiplied  them by an hourly            fee, reducing plaintiffs' requested  hourly rate from $150 to            $90 per hour.                 Plaintiffs' broadest challenge on  this appeal is to the            concept of separating time devoted  to the federal and state-                                            ____________________                 3The  court also  disallowed  as  improbable claims  for            hours in  excess of 12 hours  by an attorney on  any one day.            There is no separate challenge to this determination.                                         -5-                                         -5-            law claims.  Plaintiffs  appear to recognize that, considered            separately,  time spent  on  the state-law  claims would  not            warrant attorney's fees, those claims being outside the ambit            of  Title VII  and unsuccessful to  boot.   Plaintiffs argue,            however, that  because their  Title VII and  state-law claims            arose  out of  the  same  set  of  facts,  virtually  all  of            counsel's  efforts to prepare this  case for trial related to            both  the  state-law  and  the  federal  claims.    In  these            circumstances, plaintiffs  contend, the courts  have rejected            attempts to attribute the  hours spent in the  preparation of            the case to  one claim or the other, and  instead have viewed            the  litigation as  a  whole in  setting  an appropriate  fee            award.                   It  is quite  true  that in  Hensley  the Supreme  Court                                              _______            cautioned that attempts to  allocate hours between claims may            be  unwarranted  where  an  action  involves   related  legal            theories applied to a common core of facts.  461 U.S. at 434-            35.   Thus a  district court may  find that  the federal  and            state  claims  are so  interrelated,  and the  time  spent in            preparation of  those claims so overlapping,  that an attempt            to separate the time  attributable to one or the  other would            be futile.  See,  e.g., Munson v. Milwaukee Bd  School Dirs.,                        ___   ___   ______    _________________________            969  F.2d 266, 272 (7th  Cir. 1992); Wagenmann  v. Adams, 829                                                 _________     _____            F.2d 196, 225  (1st Cir. 1987).  But it  does not follow that            the  district  court  is  prevented  from  eliminating  hours                                      _________                                         -6-                                         -6-            attributable to  state-law claims  where, as here,  the court            reasonably concludes that there is not a complete overlap and            separation is proper.   Indeed, in Hensley  itself, where the                                               _______            successful  and unsuccessful claims were closely related, the            Supreme Court  said generally that "[t]he  district court may            attempt to identify specific hours that should be eliminated,            or it may simply reduce the award to account for the  limited            success."  461 U.S. at 436-37.                 In  this  instance there  were,  as  the district  court            found, discrete  tasks performed by  plaintiffs' counsel that            related   only  to   the  state-law  claim   for  intentional            infliction  of   emotional  distress:     for  example,   the            development   of  evidence   regarding  the   emotional  harm            allegedly  suffered by  Showalter and  Phetosomphone (because            compensatory  damages  were not  then  available  under Title            VII),  and  efforts  relating  to  the  jury,  such  as  jury            selection and  preparation of instructions  (because only the            state-law  claim was  tried to  the  jury).      On the  same            principle,  we  believe  that   the  court  was  entitled  to            eliminate or discount  hours or other expenses that  it found            would not have been incurred  but for the unsuccessful state-            law claim.  See  Hensley, 461 U.S. at 436-37;  Wagenmann, 829                        ___  _______                       _________            F.2d at 225 (segregable expenses).                 Plaintiffs   next   criticize   the   district   court's            application of this concept, arguing (often in fairly general                                         -7-                                         -7-            terms  but  with  some  examples)  that   some  of  the  time            discounted  or disallowed  should have  been permitted.   For            example,   plaintiffs   say   that   time   spent   on  state            administrative proceedings, which are a predicate to filing a            Title  VII claim,  should  have been  allowed,  and that  too            little  time  was  permitted  for  consulting  with  clients.            Admittedly,  in  excluding  or   limiting  these  hours,  the            district  court took a  very hard  line.   The disallowances,            however, were not irrational:  they stemmed from the district            court's decision that in these and similar instances, counsel            provided inadequate explanation of the nature of the services            for which compensation was  claimed, or of their relationship            to  the Title  VII claims,  or both.    Thus, where  the time            records contained  entries such as "library"  and "letters to            opposing counsel,"  the court excluded the  time, noting that            the entries "left the court guessing about their purposes."                 There was some basis for the district court's insistence            upon specificity.   The court, which  was intimately familiar            with the case, found  that plaintiffs' state-law claim played            a  very  substantial  role  in  plaintiffs'  preparation  and            prosecution of this action.  The court expressly rejected the            representation of plaintiff's  counsel that efforts  relating            exclusively to  the state-law claim comprised  less than five            percent  of her  total work  on the  case, "[s]ince  it [was]            readily apparent to  the Court that  most of the  plaintiffs'                                         -8-                                         -8-            efforts were  directed toward obtaining a  large damage award            under state  law . . .  ."  Compensatory  damages, of course,            were not available under Title VII at the time of this trial.            Compare Civil Rights Act of 1991, Pub. L. No. 102-166,   102,            _______            105 Stat. 1071, 1072-73 (1991).                   The district court's skepticism was also grounded in its            finding  that counsel  had failed  to submit  contemporaneous            time records  showing hours worked.   This omission persisted            even  after  the court  afforded  counsel  an opportunity  to            remedy  the problem.4  We have expressly advised the bar that            "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."            Grendel's  Den, Inc. v. Larkin,  749 F.2d 945,  952 (1st Cir.            ___________________     ______            1984);  accord,   Hensley,  461  U.S.  at   433  ("Where  the                    ______    _______            documentation of hours is  inadequate, the district court may            reduce the award accordingly.").  In this case, the court did            not disallow  trial counsel's claim for lack of such records,                                            ____________________                 4Counsel  first  submitted  a   computer-generated  list            containing the  dates that counsel had  worked on plaintiffs'            case,  a brief  description of  the tasks  performed and  the            number  of hours expended.   The court  found this accounting            inadequate  and requested  counsel to  submit contemporaneous            records.    In response,  counsel  submitted  individual time            sheets  for the entries on the chronological list.  The court            found that all of these time sheets were  written by the same            hand in the  same pen, and  it concluded that the  sheets had            not been prepared contemporaneously.  This factual finding is            not clearly erroneous and we are bound to accept it.                                         -9-                                         -9-            but  that  lack did  encourage  the court  to  resolve doubts            against reimbursement.5                   We also reject the claim  that the district court abused            its discretion in reducing counsel's hourly rate from $150 to            $90.    We have  held  that  a district  court,  in fixing  a            reasonable  fee  award,  is  not  bound  by  the hourly  rate            requested  by the  victor's  counsel; rather,  the court  may            establish  a  rate  that  it considers  reasonable  based  on            counsel's  skill and experience  and prevailing market rates.            See Metropolitan District Comm'n,  847 F.2d at 19; Wojtkowski            ___ ____________________________                   __________            v. Cade,  725 F.2d 127,  131 (1st  Cir. 1984).   The district               ____            court noted that plaintiffs'  counsel had been practicing law            for only three years, and it stated that $75 to  $90 per hour            was the court's normal range for attorneys with this level of            experience.   The court awarded  counsel the high  end of the            range  to reflect  her  supervisory role  in the  litigation.            Plaintiffs have provided us with no basis for overturning the            court's judgment.                   Only one  aspect of  the district court's  determination            gives us pause.  At the outset of its opinion, the court said                                            ____________________                 5The  lack of  contemporaneous records  did lead  to one            specific  disallowance,  but  not  of time  claimed  by  lead            counsel.    Plaintiffs  included  in   their  submission  the            affidavit and  bill of  a predecessor attorney,  which listed            only  a  description  of services  and  a  total amount  due.            Neither the  time expended in  total nor on  individual items            was included.  We  see no error whatever in  disallowing such            an undocumented claim.                                         -10-                                         -10-            that  the relief obtained by plaintiff on the Title VII claim            was "relatively  limited in  comparison to the  scope of  the            litigation  as a  whole."   Specifically, the  court observed            that  each plaintiff's  complaint  had sought  $1 million  in            compensatory  damages on their  unsuccessful state-law claim,            whereas  plaintiffs ultimately  received only  $1 in  nominal            damages (in the  case of appellant  Showalter) and $1,737  in            back pay (in  the case  of Phetosomphone).   Thus, the  court            noted,  "[t]he combined monetary  relief that  the plaintiffs            ultimately received was less than one-tenth of one percent of            what they originally sought."                   We think that plaintiffs'  proportionate success on  the            Title  VII claim  vis-a-vis their failure  to prevail  on the            state-law  claim is  irrelevant.   Since  the district  court            eliminated from the award any compensation for hours spent on            the prosecution of the state-law claim, it would be illogical            to reduce further the award to reflect the lack of success of            that claim.  It is true that in a number of cases, the courts            have  stated that "the extent  of a plaintiff's  success is a            crucial factor in  determining the proper amount of  an award            of attorney's  fees . . .  ."  Hensley, 461 U.S.  at 440; see                                           _______                    ___            also Foley,  948 F.2d at 19.   But we think  these statements            ____ _____            must  be understood  as referring  to the  degree of  overall            success  where  unsuccessful  claims  are  included  in   the                                                       ________                                         -11-                                         -11-            calculation of the number of hours  for which compensation is            allowed.                     Nevertheless,  we  do  not  believe  that  the  district            court's comparison of the  outcomes achieved by plaintiffs in            their  federal   and   state-law  claims   requires   further            proceedings.   The district court  expressed this view  in an            introductory  section  of its  opinion;  the  belief did  not            manifest itself in any particular reduction in the fee award,            and  the specific reductions in the award were based upon the            legitimate disallowance of hours.  If  the comment played any            role,  it  was   as  a  general  predicate  to   the  court's            permissible decision to disallow  or discount hours not shown            to be related to the successful claim.                                             III.                 Finally,  plaintiffs  contend that  the  court  erred by            disallowing  its request for costs  other than $240 in filing            fees. This argument need not detain us long.                 The award of costs to the prevailing party, like the fee            award,  is a  creature of  statute.   Fed. R.  Civ.  P. 54(d)            states that "costs shall be allowed as a  matter of course to            the prevailing party unless the Court otherwise directs . . .            ."6   Allowable costs are listed  in 28 U.S.C    1920; and 28                                            ____________________                 6Although appellants' brief suggests  that costs may  be            imposed  directly under section 2000e-5(k), "[s]ection 2000e-            5(k)  does not alter the  standard by which  the court awards            costs that are  not attorneys' fees pursuant to  Rule 54(d)."            Myrick v.  TNT Overland  Express, 143  F.R.D. 126, 128  (N.D.            ______     _____________________                                         -12-                                         -12-            U.S.C.   1924 provides  that "the party claiming any  item of            cost or disbursement shall  attach thereto an affidavit, made            by himself  or his duly  authorized attorney or  agent having            knowledge of the  facts, that  such item is  correct and  has            been necessarily incurred  in the case and  that the services            for  which   fees  have   been  charged  were   actually  and            necessarily performed."  A  "bill of costs" form (AO  133) is            made available  to  the prevailing  party  by the  court;  in            addition to  providing a worksheet to itemize costs, the form            also provides a built-in declaration tracking the language of            the statute.                 In this  case, plaintiffs  neglected to  file a  bill of            costs form or to supply any other verification that the costs            claimed were "necessarily incurred in  the case" and that the            services for which compensation was sought were "actually and            necessarily  performed."  Rather,  the affidavit submitted by            plaintiffs stated only that the  costs were expended "in  the            preparation  and  litigation of  this  case,"  which, as  the            district  court  noted,  is  a  broader  and  more  inclusive            standard.   The  court therefore  disallowed all  costs other            than  $240, which  represented  the filing  fees  in the  two            cases;  these were the only costs which, in the court's view,                                            ____________________            Ohio  1992); accord, Goostree v. Tennessee, 796 F.2d 854, 864                         ______  ________    _________            (6th Cir. 1986), cert. denied, 480 U.S. 918 (1987).                             ____________                                         -13-                                         -13-            could  safely  be  assumed   on  their  face  to   have  been            "necessarily incurred."                   The district court could permissibly have concluded that            certain other  expenses, such as the cost  of the depositions            of the individual  defendants and the cost  of an interpreter            for plaintiff Phetosomphone, were  "necessary" on their face,            but we  do not believe that  the court was obliged  to do so.            At  the fee  hearing, the  district judge  warned plaintiffs'            counsel that  the initial costs  submission was not  a proper            bill of costs  and afforded additional  time for filing,  but            the response was the  affidavit already described.  Preparing            a technically  adequate application for costs was plaintiffs'            responsibility, not  the court's; and it was  not a difficult            or  onerous responsibility,  given the  "bill of  costs" form            available from the clerk.                                          * * *                 Congress has provided for attorneys' fee awards in Title            VII  cases.  It is important that the public policy reflected            in  the statute not be  undone by requirements  of proof that            are  overly stringent or  by too grudging  a test  of what is            reasonable.  At the same time, such fee awards are peculiarly            within the expertise and discretion of the district judge.                   It is often difficult to  strike the proper note in                 fee-setting matters, to balance the need adequately                 to compensate  successful counsel against  the need                 to  burden unsuccessful  defendants fairly,  but no                 more.  The district  court--which, as in this case,                 has frequently lived  with the  litigation and  the                                         -14-                                         -14-                 lawyers  for  long period  of  time,  and which  is                 likely to be more  familiar with the  marketplace--                 has the best coign of vantage.              Metropolitan  Dist. Comm'n, 847 F.2d  at 20.   Here the trial            __________________________            judge  provided  an unusually  detailed  explanation for  the            reduction  in the fees and  costs sought by  plaintiffs.  The            court's  conclusions are  untainted by  legal error  and fall            within  the  realm  of   reasonableness.    Accordingly,  the            district court's judgment is affirmed.                                         ________                                         -15-                                         -15-                      ALDRICH, Senior Circuit Judge, dissenting.  I quite                               ____________________            agree with  much  of  the  court's  opinion.    Certainly  an            attorney fees  determination should not be  a second lawsuit,            and  a  court's finding  of  the number  of  hours reasonably            spent, and of appropriate hourly rates in part based on first            hand appraisal of counsel's ability, should not be reviewable            except  for  special reason.    Nor  can  I  sympathize  with            plaintiffs'  unexplained and  persistent disregard  of formal            methodology  rules.   I  am much  troubled,  however, by  the            district court's approach to a primary issue in the case, the            time  devoted to  the state  claim that  would not  have been            spent  had that  issue not  been included.   The  federal and            state cases were not separate, but were totally related, even            with, as  defendant concedes, identical witnesses.   The only            difference  was that federal recovery, at  that time, did not            include compensatory damages.   Even here there was a special            connection in that plaintiffs were obliged to  show, even for            the  federal count,  that their own,  conceded participation,            was unenjoyable and involuntary.  In this circumstance, total            disregard of hours charged for such items as conferences with            clients;   contacts   with   counsel  for   defendants,   and            preparation for,  and taking  of the deposition  of defendant            Smith,  the principal  harasser, on  the ground  that counsel                                         -15-                                         -15-            cannot   allocate  and  subtract,  imposes  an  extraordinary            burden.                      As my  brothers say,  this might be  an appropriate            occasion to adopt the suggestion in Hensley v. Eckerhart, 461                                                _______    _________            U.S. 424, 436-37 (1983), where  the Court said, "The district            court  may attempt to identify specific  hours that should be            eliminated,  or it may simply reduce the award to account for            the  limited success."  That,  however, brings me  to my real            difficulty, the district court's finding that this was a case            where the relief obtained was "truly limited in comparison to            the  scope of the litigation as a whole," citing Hensley, 461                                                             _______            U.S. at 440.   In terms, counsel "won on  one minor claim for            each plaintiff."                      In  Riverside  v.  Rivera, 477  U.S.  561,  574-576                          _________      ______            (1986), the Court said,                      Unlike  most  private  tort litigants,  a                      civil rights plaintiff seeks to vindicate                      important civil and constitutional rights                      that  cannot be valued solely in monetary                      terms. . . .                           Because   damages   awards  do   not                      reflect fully the public benefit advanced                      by civil rights litigation,  Congress did                      not  intend  for  fees  in  civil  rights                      cases, unlike most  private law cases, to                      depend on  obtaining substantial monetary                      relief. . . .                           Thus,   Congress   recognized   that                      reasonable  attorney's fees  under   1988                      are not conditioned upon and need not  be                      proportionate  to  an   award  of   money                      damages.                                         -16-                                         -16-            Plaintiffs had achieved the  maximum possible recovery on the            federal claims, including an order against defendant employer            to  improve its  internal procedures  with respect  to sexual            harassment.  By its  dwelling at length on the  state dollars            sought   and,  though   not  applying   them  mathematically,            concluding the federal claim "minor" I cannot but  think that            the district court greatly  depreciated the Civil Rights Act,            seriously   impairing   its  discretion.     I   would  favor            reconsideration.                                         -17-                                         -17-
