
USCA1 Opinion

	




          May 3, 1996       UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 94-1202                                  JOSEPH F. CONSOLO,                                Plaintiff - Appellee,                                          v.                              DANIEL F. GEORGE, ET AL.,                               Defendants - Appellants.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Nathaniel M. Gorton, U.S. District Judge]                                              ___________________                       [Hon. Mark L. Wolf, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                                Boudin, Circuit Judge,                                        _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                             and Young,* District Judge.                                         ______________                                _____________________               Donald V.  Rider, Jr.,  Assistant City Solicitor,  with whom               _____________________          David M.  Moore, City  Solicitor, and  Diana H.  Horan, Assistant          _______________                        _______________          City Solicitor, were on brief for appellants.               Thomas  C. Cameron, with whom Dennis J. Curran, and Curran &               __________________            ________________      ________          Cameron, were on brief for appellee.          _______                                 ____________________                                 ____________________                                        ____________________          *  Of the District of Massachusetts, sitting by designation.                    Per  Curiam.  Pursuant to  42 U.S.C.    1988(b) and 1st                    Per  Curiam                    ___________          Cir. R. 39.2,  Joseph F. Consolo ("Consolo")  here seeks attorney          fees  incurred in defending  a jury verdict in  his favor both on          appeal and through a futile petition for certiorari.                                      BACKGROUND                                      BACKGROUND                    A jury  awarded  Consolo  $90,000  in  damages  against          Worcester police  officers Daniel  George ("George") and  Michael          Mulvey  ("Mulvey")  for  violations of  Consolo's  civil  rights.          George  and  Mulvey appealed  four issues  to  this Court  and we          affirmed in all  respects.  Consolo v.  George, 58 F.3d  791 (1st                                      _______     ______          Cir.), cert. denied, 116 S. Ct. 520 (1995).                 _____ ______                    On  behalf  of  Consolo,  Attorneys  Thomas  C. Cameron          ("Cameron")  and   Dennis  J.  Curran  ("Curran")   filed  a  fee          application (the  "Application") for  award of appellate  counsel          fees  pursuant to  42  U.S.C.    1988(b).   In  the  Application,          Consolo  also  requested  an  award  of  expenses  and  fees  for          paralegal Kenneth O'Sullivan ("O'Sullivan").   Consolo also filed          a supplemental  fee application (the  "Supplemental Application")          for services related to opposing certiorari.                    George and Mulvey's  objections to the  Application and          Supplemental Application  fall into six general  categories:  (1)          the  timeliness of Consolo's appeal;  (2) the adequacy of records          kept by Cameron and Curran regarding their fees and expenses; (3)          whether work  performed by Cameron  and Curran was  necessary and          productive; (4)  the reasonableness  of rates charged  by Cameron          and  Curran;  (5)  whether   work  performed  by  O'Sullivan  was          necessary and productive; and  (6) the reasonableness of expenses          charged by Cameron and Curran.                                      DISCUSSION                                      DISCUSSION                    Traditionally,  litigants have  borne  their own  legal          costs.  See Alyeska  Pipeline Serv. Co. v. Wilderness  Soc'y, 421                  ___ ___________________________    _________________          U.S. 240, 247 (1975).   Certain statutes and equitable  doctrines          permit  departure from  this  tradition.    See  In  re  Thirteen                                                      ___  ________________          Appeals, 56 F.3d 295, 304-305  (1st Cir. 1995).  Under  the Civil          _______          Rights Attorney's  Fees  Awards Act  of  1976, courts  may  award          reasonable  attorney's fees  to  a prevailing  party  in a  civil          rights action.  42 U.S.C.   1988(b).  In authorizing such awards,          Congress intended to reduce the financial impediments that hinder          individuals from asserting their rights.  Furtado v.  Bishop, 635                                                    _______     ______          F.2d 915, 918-19 (1st Cir. 1980).                    Courts  grant attorney's  fees under     1988(b) unless          there  is a  special reason  compelling denial.   Supreme  Ct. v.                                                            ____________          Consumer's  Union of the United  States, Inc., 446  U.S. 719, 737          _____________________________________________          (1980).   Prevailing plaintiffs  may receive fees  for time spent          defending an  appeal, if the plaintiff  is ultimately successful.          See  Souza  v. Southworth,  564 F.2d  609,  613 (1st  Cir. 1977).          ___  _____     __________          Parties  may also  receive  fees for  time  spent litigating  fee          applications.   Lund  v. Affleck,  587 F.2d  75, 77-78  (1st Cir.                          ____     _______          1978).          A.        Timeliness of Consolo's Application          A.        Timeliness of Consolo's Application                    ___________________________________                    George  and  Mulvey  object  to   the  Application  and          Supplemental Application,  claiming that both are  untimely.  The          governing local rule regarding appellate fee applications states:                                         -3-                      An application . . . for an award of fees                      and other  expenses . . .  shall be filed                      with the  clerk of  the court  of appeals                      within 30  days of  the date of  entry of                      _______________                      the  final circuit judgment . .  . .  For                      purposes of the 30-day limit,  a judgment                      shall not be  considered final until  the                      time for  filing an appeal or  a petition                      for a writ of certiorari has expired,  or                      judgment is entered by  the court of last                      resort.           1st Cir. R. 39.2 (emphasis added).                    Consolo filed the  Application on August 8, 1995.   The          Supreme Court  denied George  and Mulvey's  Petition for  Writ of          Certiorari on November 27, 1995.  Consolo filed the  Supplemental          Application on December 15, 1995.                    1.   Supplemental Fee Application                    1.   Supplemental Fee Application                    George and  Mulvey note  that parties may  petition the          Supreme  Court  for  rehearing up  to  25  days  after denial  of          certiorari.  Sup. Ct. R. 44.2.  For purposes of 1st Cir. R. 39.2,          George  and  Mulvey contend  that final  judgment does  not occur          until this 25 day period ends.                    However, "[t]he  order of denial will  not be suspended          pending disposition  of a  petition  for rehearing  except by  an          order of the Court or a Justice."  Sup. Ct. R. 16.3.  The Supreme          Court  issued no  such order  in  the instant  case.   Without  a          delaying order, denial  of certiorari is  final judgment for  the          purposes of the local rule.  After this final judgment, Consolo's          attorneys had 30 days to file an application for attorney's fees.          1st  Cir. R. 39.2.   Consolo  met this  requirement by  filing on          December 15, 1995.  Therefore, Consolo's Supplemental Application                                         -4-          is timely under 42 U.S.C.   1988(b) and 1st Cir. R. 39.2.                    2.   Fee Application                    2.   Fee Application                    Rule  39.2  serves three  purposes:    (1) it  promotes          fairness  by  requiring  parties  to  apply  for  fees  within  a          reasonable  time  after  a  case's resolution;  (2)  it  advances          judicial efficiency by reducing of the number of fee applications          filed; and (3) it prevents this Court from issuing awards under            1988(b) inconsistent with subsequent decisions on the case.                    George  and  Mulvey  contend  that  Consolo  filed  his          Application prematurely, and that the Court should deny both  the          Application  and  the  Supplementary  Application.2   George  and          Mulvey argue that we  should interpret 1st  Cir. R. 39.2 to  deny          applications filed before final  judgment.  Because Consolo filed          his Application  before the Supreme Court  denied certiorari, the          Application was most certainly premature.  Consolo's Supplemental          Application,  however,  amended  and  expanded  his  Application.          Thus, even though Consolo's  first application was premature, the          Supplemental Application incorporated  and cured the Application.          Since the Supplemental  Application is timely  under 1st Cir.  R.          39.2, we  must, therefore, examine  the claims presented  in both          the Application and Supplemental Application.          B.        Reasonableness of Consolo's Applications          B.        Reasonableness of Consolo's Applications                    This Court has customarily thought it best to calculate          reasonable  fees  through  the  lodestar time  and  rate  method.                                        ____________________          2  Paradoxically, George and Mulvey also argue in the alternative          that Consolo's  first application was  late, first  acknowledging          but then choosing to ignore the plain test of 1st Cir. R. 39.2.                                         -5-          Tennessee Gas Pipeline Co. v. 104 Acres of Land, 32 F.3d 632, 634          __________________________    _________________          (1st Cir.  1994); but see In re Thirteen Appeals, 56 F.3d at 305-                            ___ ___ ______________________          308  (common fund cases).   The lodestar is  a numerical point of          reference  reached  by  multiplying  the total  number  of  hours          reasonably  spent by a  reasonable hourly  rate.   Grendel's Den,                                                             ______________          Inc.  v. Larkin,  749  F.2d 945,  950  (1984) (citing  Hensly  v.          ____     ______          Eckerhart,  461  U.S. 424,  433-34 [1983]).    The lodestar  is a          presumptively  reasonable fee,  but it  is  subject to  upward or          downward  adjustment  for  special  circumstances.    Lipsett  v.                                                                _______          Blanco,  975  F.2d  934, 937  (1st  Cir.  1992)  (citing Blum  v.          ______          Stenson, 465 U.S. 886, 897 [1984]).                    1.   Adequacy of record keeping                    1.   Adequacy of record keeping                    For  the Court  to determine  whether hours  billed are          reasonable, applicants  must provide  highly detailed records  of          their time  expenditures.   Phetosomphone v. Allison  Reed Group,                                      _____________    ____________________          Inc., 984 F.2d 4, 7 (1st  Cir. 1993) (citing Grendel's Den, Inc.,          ____          749 F.2d  at  952).    The  Court  demands  specific  information          regarding  the number  of hours,  dates, and  the nature  of work          performed.  Deary v. City of  Gloucester, 9 F.3d 191, 197-98 (1st                      _____    ___________________          Cir. 1993) (citing Calhoun v. Acme Cleveland Corp., 801 F.2d 558,          560  [1st Cir. 1986]).  Lack of contemporaneous records calls for          substantial  reduction  or  denial   of  fee  awards,  except  in          "extraordinary  circumstances."  Id.    While this  Court has not                                           ___          demanded  inclusion  of the  actual, contemporaneously  kept time          sheets or records in  fee applications, their inclusion  aids the          Court  in  more easily  assessing  the  validity, necessity,  and                                         -6-          reasonableness of  hours billed.  Applicants fail  to supply such          records  at  their peril.   See  id.  (noting that  submission of                                      ___  ___          actual time slips allowed a trial court to deny 78 of 699.4 hours          requested).                    Here,    Consolo's    Application   and    Supplemental          Application   included   affidavits   that    distilled   records          contemporaneously kept  by Cameron, Curran, and  O'Sullivan.  The          Application and  Supplemental Application  did not  include their          original time  sheets.   Normally an  attorney's account  of time          spent must be scrutinized with care.   Calhoun, 801 F.2d at  560;                                                 _______          Grendel's  Den, Inc.,  749 F.2d  at 950.   Without  original time          ____________________          sheets, we hold an applicant's summary of hours spent to an  even          higher level of scrutiny.  Here, we must  use  our own experience          and  judgment  to  determine  if  Cameron  and  Curran's  billing          accurately reflects  time spent.  We  resolve inconsistencies and          ambiguities against the applicant.                    Before calculating the  lodestar, we  must address  two          issues of some concern to this Court.  The first issue relates to          the Application.   On  July 19,  1994, Curran  filed a  Motion to          Enlarge Time to  File Brief.   The Motion to  Enlarge would  have          extended  the deadline  to  file Consolo's  Appellate Brief  from          July 14,  1994  to July  21, 1994.   In  that Motion  to Enlarge,          Curran represented that Consolo's attorneys needed the additional          time "to  proofread the  Brief, review transcript  references and          reproduce trial exhibits for this appeal."   Plaintiff-Appellee's          Motion to Enlarge Time  to File Brief at   2.   The Court granted                                         -7-          this  Motion on  July 21,  1994, so  counsel could  perform these          clerical tasks.  In the Application, Curran and Cameron requested          reimbursement  for  work performed  during this  additional week.          Some of the work  claimed during this period is  unrelated to the          limited, clerical tasks described in the Motion to Enlarge.3                    Poor  record keeping  by  Cameron and  Curran may  have          resulted    in   inaccurate    billing   during    this   period.          Alternatively, Curran may have misrepresented the reasons for his          Motion  to  Enlarge Time.    In either  case,  the  Court is  not          disposed to grant attorney's fees for these inconsistencies.  See                                                                        ___          Brewster v. Dukakis, 3 F.3d 488, 494  n.6 (1st Cir. 1993) (noting          ________    _______          that courts can and should deny recovery for such "sloppy" record          keeping).      Unfortunately,  Consolo's   application   did  not          adequately distinguish  between time spent on clerical (permitted          under the  Motion to Enlarge)  and non-clerical tasks.4   Because                                        ____________________          3  Work  that falls outside of  Consolo's Motion to Enlarge  Time          includes:               July 15, 1994     "[B]egin drafting Statement of Facts."               July 18, 1994     "Revise Statement of Facts."               July 19, 1994     "[R]evise Statement of Facts for Brief."          4    This  is  the  source  of  much  difficulty  concerning  the          Application  and  Supplemental Application.   Cameron  and Curran          provided the number of hours spent on Consolo's case per day, and          roughly the subject matter or task on which they spent this time.          While they did divide the number of hours spent by attorney, they          did not divide the number of  hours by task.  For example, Curran          claims he spent 5.05 hours on July 14, 1994, "continu[ing] review          of  ten volumes of trial transcript to prepare [the] Statement of          Facts  for  Brief;  [and  in] telephone  conferences  with  [the]          Clerk's  Office and  with [defense  counsel]."   This forces  the          Court to  guess  how much  time  Curran spent  in review  of  the          volumes  and  how  much   was  spent  in  telephone  conferences.          Applicants  should   consider  detail  almost   as  important  as          conscientious and accurate reporting.                                         -8-          we  are  unable  to  distinguish  these  time  periods,  any work          performed inconsistent with the Motion  to Enlarge will result in          denial of  award  for that  day.    Thus, we  will  not  consider          Curran's  application for 10.3 hours  on July 15  and 19, 1994 in          our calculation  of  the lodestar.    Similarly, we  will  ignore          Cameron's application for 1.3 hours on July 18, 1994.                    The   second  issue   relates   to   the   Supplemental          Application; it  contains  disturbingly similar  inaccuracies  as          those discussed above.   Under oath, Curran stated that  he spent          one  hour making  revisions to  the Supplemental  Application and          supporting materials drafted by Cameron.  Yet, Curran requests .9                               __________________          hours   for  his  own  work  spent   to  draft  the  Supplemental          Application.  He also  claims a separate .8  hours to revise  the          Supplemental  Application.   We  demand  the  strictest level  of          accuracy, honesty,  and good faith in applications for fees under            1988(b).   The Court  will deny  any section of  an application          containing   inaccurate  statements;   we  will   similarly  deny          applications that are knowingly incorrect.  Thus we deny .9 hours          from  calculation  of  the  lodestar  in  Consolo's  Supplemental          Application.                    2.   Necessity of work performed by Consolo's attorneys                    2.   Necessity of work performed by Consolo's attorneys                    Defendants strenuously object to  Consolo's application          for fees regarding preparation for, and attendance  at, two Civil          Appeal Management  Program pre-argument conferences  (the "Appeal          Conferences").  Both Cameron and Curran attended these two Appeal          Conferences.   The  Court requires  these conferences  to promote                                         -9-          judicial efficiency.   We give  notice that the  Court demands  a          high  degree of  comprehension of  the legal  and factual  issues          presented.  Thus, this Court will award fees for preparation for,          and attendance at, the Appeal Conferences.  However,   1988(b) is          not a full  employment program.   Where one  attorney would  have          been  sufficient,   1988(b) will  not allow recovery  of fees for          the work  of two; the Court will discount the work of superfluous          attorneys.   Hart v. Bourque, 798  F.2d 519, 523 (1st  Cir. 1986)                       ____    _______          (citing  King v. Greenblatt, 560 F.2d 1024, 1027 [1st Cir. 1977],          cert.  denied, 438  U.S. 916 [1978]).   Courts  should ordinarily          _____  ______          greet a claim  that several  lawyers were required  to perform  a          single  set of tasks with  healthy skepticism.   Pearson v. Fair,                                                           _______    ____          980 F.2d  37, 47  (1st Cir.  1992) (internal citations  omitted).          Similarly, we should not shift  fees for time spent in review  of          another attorney's research.   Hart,  798 F.2d at  522-23.   This                                         ____          Court will only  include the work  of one attorney's  preparation          and appearance  for the  Appeal Conferences when  calculating the          number  of "reasonable hours" for the lodestar.  Since it appears          that Curran performed the great majority of the preparatory  work          for these conferences, we find that his work was reasonable under          Hart  and Pearson.    Therefore, when  calculating the  number of          ____      _______          reasonable hours for the lodestar, we will not include 2 hours on          March 30, 1994, and .75 hours on May 12, 1994, claimed by Cameron          in conjunction with the Appeal Conferences.                    George  and Mulvey object  to the Application regarding          work performed in  preparation for oral argument.   While Cameron                                         -10-          presented oral  argument, Curran  provided research.   George and          Mulvey would  limit Consolo's  recovery for  this overlap.   Such          limitations are  appropriate where  there is redundancy  in legal          work.   Hart,  798 F.2d at  523.   At best,  Curran and Cameron's                  ____          arrangement  was an inefficient  use of resources.   For example,          while Cameron's  attendance would  have  been sufficient,  Curran          joined his  co-counsel in conferences with  consultants.  Section          1988(b) does not  compel recovery  for waste.5   This Court  will          consider  only  one  attorney's  work in  research  of  the  oral          argument toward the  number of "reasonable  hours spent" for  the          lodestar.  Therefore, we deduct 7.6 hours from our calculation of          reasonable hours spent.6                    We do,  however, allow  recovery of  the fees for  both          attorneys'  attendance at  the appellate  hearing, as  Curran was          present to answer any  factual questions regarding the trial  and          Cameron  argued the substantive issues of law.  Courts should not          read  the requirements  of "reasonable  hours expended"  to limit          their own factfinding process.                                        ____________________          5   The attendance of two attorneys  at the Appeal Conferences is          not   per   se  superfluous.     However,   given  the   lack  of                ________          contemporaneous    time    records    and    the    application's          inconsistencies,  Consolo's application fails  to meet its burden          of proof for this expense.             Similarly, we do not  hold as matter  of law that Cameron  and          Curran's  research arrangement was duplicative.  Nevertheless, in          this instance we  find that  Consolo has failed  to justify  this          expense.          6  We deduct 1.1 hours for work on August 25, 1994; 1.8 hours for          work  on September  6, 1994;  .7 hours for  work on  September 7,          1994; and 4.0 hours for work on September 8, 1994.                                         -11-                    3.   Reasonable fees per hour                    3.   Reasonable fees per hour                    The  fee per  hour for  work on  the litigation  is the          "core  rate."  Brewster,  3 F.3d at  492 n.4.   Applicants should                         ________          bill other work, including  work on the application itself,  at a          reduced "non-core  rate."  Id.   A reasonable hourly rate  is the                                     ___          prevailing  market  rate  in  the relevant  legal  community  for          similar  services  by  lawyers of  reasonably  comparable skills.          Blum v.  Stenson, 465 U.S. 886, 895 & n.11.  "Absent more unusual          ____     _______          circumstances .  . . the  fee rates of  the local area  should be          applied  even  when the  lawyers  seeking fees  are  from another          area."    Ramos v.  Lamm,  713 F.2d  546, 555  (10th  Cir. 1983).                    _____     ____          Consolo contends that the relevant legal market is  Boston, where          this  Court  heard the  appeal.   Consolo  provided  an affidavit          declaring that $175 per hour is a reasonable fee for such work in          Boston.    George  and  Mulvey  claim  that  the  relevant  legal          community is Worcester,  where the incidents  giving rise to  the          claim  occurred.  George and Mulvey provide no evidence regarding          Boston area  fees, but  provide an  affidavit declaring  that the          relevant per hour  fee in Worcester is $150.   Here, the district          judge  allowed Consolo's request for $175 per hour for trial work          in Worcester.  We defer to  the determination by the trial  judge          and consider $175 the "core rate," a  reasonable fee per hour for          purposes of the lodestar.7                                        ____________________          7   Because  the  trial  court  concluded  that  $175/hr.  was  a          reasonable  fee  in Worcester  and George  and Mulvey  admit that          $175/hr.  was a  reasonable  fee  in  Boston,  we  need  make  no          determination  as to  whether the  trial  court or  the appellate          court's legal community is used in calculation of the lodestar.                                         -12-                    Consolo also  applied for fees in  conjunction with the          creation of  the fee  applications themselves.   "Time reasonably          expended  in connection with a fee application is compensable . .          . but it may be fairly compensated at a reduced rate."  Brewster,                                                                  ________          3  F.3d at 494  (internal citations  omitted).   Applicants often          spend  such  time  doing  little  more  than  documenting  action          previously taken.   Id.  In  this case, we  will allow "non-core"                              ___          work such as this at one-half the "core rate."  Thus, the fee per          hour for work on the  Application and Supplemental Application is          $87.50.                    4.   Lodestar calculation                    4.   Lodestar calculation                    Consolo applied  for a total  of 157.9 hours  under the          Application.   This Court denied  11.3 hours from the calculation          of  the   lodestar  for  the  obvious   inconsistencies  in  that          application.   As noted above, this Court also denied 10.35 hours          within  the lodestar,  as  these hours  represent unnecessary  or          redundant  work.  Thus, this Court  finds that 136.25 hours was a          "reasonable  number of hours" for  purposes of the  lodestar.  Of          the 136.25 hours,  116.05 hours  are billed at  the "core  rate,"          $175  per hour, for appellate  related work.   The remaining 20.2          hours are billed  at $87.50 per hour,  half the "core  rate," for          application related work.   Therefore, Consolo's lodestar for his          Application is $22,076.25.8                    Under the Supplemental  Application, Consolo seeks fees          for 41.1 hours.  Of these, Cameron and Curran spent 29.7 hours on                                        ____________________          8  (116.05 x $175) + (20.2 x $87.50).                                         -13-          certiorari-related activities; recovery for these hours is at the          "core rate" of $175.  Cameron and Curran spent the remaining 11.4          hours  either   on  Consolo's  rebuttal  memorandum   or  on  the          supplemental fee application.   This Court  denied .9 hours  from          calculation  of the  lodestar,  due to  inconsistencies regarding          time spent  on the Supplemental  Application.  We  compensate the          remaining  10.5   at  one-half   of  the  "core   rate,"  $87.50.          Therefore, Consolo's lodestar for the Supplemental Application is          $6,116.25.9  Consolo's total lodestar is $28,192.50.10                    5.   Special factors                    5.   Special factors                    Courts may  depart from the lodestar  to compensate for          "special  circumstances."  Lipsett, 975  F.2d at 937.   Here, the                                     _______          Court  addressed the concerns of  both parties when it calculated          the lodestar.  We, therefore,  find no reason to depart from  the          lodestar in  awarding appellate  and certiorari  fees.   We  must          satisfy ourselves  of the overall fairness  and reasonableness of          the  fee under these particular circumstances.  Lund, 587 F.2d at                                                          ____          77.  This  lodestar meets  these requirements.   Thus, the  Court          awards Consolo  $28,192.50 for attorney's fees under  42 U.S.C.            1988(b).                    6.   Paralegal fees under   1988(b)                    6.   Paralegal fees under   1988(b)                    Consolo also  applied for $1,312.50 in  paralegal fees.          Consolo  claims that O'Sullivan  spent 37.5 hours  on the appeal,          for  which Consolo claims compensation  at $35 per  hour.  Courts                                        ____________________          9  (29.7 x $175) + (10.5 x $87.50).          10  $22,076.25 + $6116.25.                                         -14-          may  grant  paralegal  fees  pursuant  to  42  U.S.C.    1988(b).          Missouri v. Jenkins, 491  U.S. 274, 285 (1989).   Courts commonly          ________    _______          use the lodestar for calculation of such fees.  Id.                                                          ___                    O'Sullivan's  work  included attendance  at  the Appeal          Conferences and the oral  argument before this Court.   As stated          above, we deny recovery  where the work performed by  an attorney          is redundant.  Hart, 798 F.2d at 523.  We will also deny recovery                         ____          for unnecessary  paralegal work.  O'Sullivan's  attendance at the          conferences and  the hearing was  unnecessary; we will  not shift          this expense to George and Mulvey.  Thus we deny recovery for 5.4          hours of O'Sullivan's claim.                    "Purely  clerical or  secretarial  tasks should  not be          billed at  a paralegal  rate, regardless  of who performs  them."          Jenkins, 491 U.S. at 288 n.10.  Some of O'Sullivan's claimed time          _______          is clerical.11   The  court will  not order a  shift of  fees for          this time; therefore, we deny an  additional 4.05 hours requested          by  Consolo for  O'Sullivan's work.    The remaining  28.05 hours          constitute  a  "reasonable  number  of  hours"  for  O'Sullivan's                                        ____________________          11  Tasks that are clearly clerical include:               March 21, 1994     Review file             .15 hours               April 18, 1994     Locate documents        .3 hours                                  in file               July 20, 1994      To Copy Cop             .3 hours               July 21, 1994      Reorganize file        1.3 hours               July 22, 1994      Continue to             .4 hours                                  reorganize file               September 6, 1994  Locate documents        .2 hours                                  for oral argument               September 7, 1994  Locate documents        .5 hours                                  for oral argument               January 26, 1995   Retrieve documents      .5 hours               July 5, 1995       Locate documents        .4 hours                                         -15-          lodestar.   George and  Mulvey did not  contest the $35  per hour          rate claimed by  O'Sullivan.   Thus, we adopt  this as the  "core          rate" for O'Sullivan's  lodestar.   We see no  reason to  deviate          from  the  lodestar  in   this  case  as  we  find   no  "special          circumstances" that merit an increase or decrease.   See Lipsett,                                                               ___ _______          975 F.2d  at 937.   Thus, this Court  awards Consolo  $981.75 for          O'Sullivan's fees.12                    7.   Expenses                    7.   Expenses                    Courts  may include  an attorney's  reasonable expenses          when awarding fees  under    1988(b).  Grendel's  Den, Inc.,  749                                                 ____________________          F.2d  at 951.  Section 1988(b) provides for awards of "incidental          and  necessary  expenses  incurred  in  furnishing  effective and          competent  representation."   Northcross v.  Board of  Educ., 611                                        __________     _______________          F.2d  624, 639  (6th Cir.),  cert. denied,  447 U.S.  911 (1979).                                       _____ ______          Consolo claimed $290.78 in  his Application for expenses relating          to  the  appeal.   He also  claimed  $427.71 in  the Supplemental          Application for certiorari-related expenses.                    We  will not  shift the  cost of  long-term investments          made  during litigation.    Included in  his Application,  Curran          requests $117.91 for a police misconduct litigation treatise.  We          do  not question the usefulness of  this text; however, attorneys          should  make  a good  faith  effort to  minimize  expenses before          filing for  fees under   1988(b).   We find no  such effort here.          Certainly, Consolo's attorneys could  have borrowed the text from          a library for a significantly smaller sum.   Thus we deny payment                                        ____________________          12  28.05 x $35.00.                                         -16-          for this expense.                    George  and   Mulvey  objected  to  expenses   for  the          transcript  of  the Defendant's  closing  argument.   George  and          Mulvey  claim that Consolo never used the transcript, and thus we          should  not shift  its cost.   We  think it  is inappropriate  to          cross-reference expenses to the text of an Appellant's Brief when          awarding fees.  It is likely that Cameron and Curran investigated          a  course of argument they  later deemed unworthy.   Denying such          research  is contrary  to the purpose  of    1988(b).   Thus, the          Court  grants Consolo's request for $84 for the transcript of the          closing argument.                    George  and Mulvey also contest the use of a courier to          send Consolo's appellate  brief to the Defendants' counsel.  This          service cost $14.   Consolo appears to have retained  the courier          in  good faith; it was a reasonable attempt to provide George and          Mulvey  with a copy of the brief.   Thus we grant the request for          $14.                    Consolo  requests  $54.15   in  photocopy  and  library          expenses.    Parties  may  recover  such  reasonable  expenses.13          See, e.g., Northcross, 611 F.2d at 639.  George and Mulvey do not          ___  ____  __________          object; thus this  expense is granted.  George and Mulvey also do          not object to a $8.39 expense for a videotape; this is granted.                    The remaining $26.27 in  the Application was an expense          Consolo  should  have  obtained   under  Fed.  R.  App.  P.   39.                                        ____________________          13  Counsel billed  $3.20 of Consolo's fee application  for costs          to "misc." and not to Consolo.  We do not consider this amount in          our calculations.                                         -17-          Applicants should  not seek  such costs under  the aegis  of a             1988(b) action.   Therefore, we  grant $143.40 in  expenses under          the Application.14                    In  the  Supplemental Application,  Consolo  included a          bill  from a  legal publisher  clearly identifying  necessary and          reasonable expenses  related to  certiorari.   While  we have  no          record of payment, bills such as these are rebuttable evidence of          an expense.   We presume  that Cameron  and Curran will  pay this          bill.   If George and Mulvey had demonstrated otherwise, we would          not  have shifted  this  expense.   Thus,  we grant  $327.71  for          reproduction  and  service  of  Consolo's  Brief  in  Opposition.          Finally, Cameron  requests $100 reimbursement  for admission fees          to the bar of the Supreme Court.  George and Mulvey do not object          to this expense; it is thus granted.          C.        Conclusion          C.        Conclusion                    In total,  this court awards $29,745.36  to Consolo for          appellate and certiorari attorney's fees and costs pursuant to 42          U.S.C.   1988(b) and 1st Cir. R. 39.2.                                        ____________________          14  $290.78 - ($117.91 + $26.27 + $3.20).                                         -18-
