Perez-Sosa v. Garland ( 2022 )

United States Court of Appeals
For the First Circuit
No. 20-2083
NELSON JOSÉ PÉREZ-SOSA,
Plaintiff, Appellant,
v.
MERRICK B. GARLAND,*
UNITED STATES ATTORNEY GENERAL,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. William E. Smith,** U.S. District Judge]
Before
Barron, Selya, and Lipez,
Circuit Judges.
Judith Berkan, with whom Mary Jo Méndez and Berkan/Méndez
were on brief, for appellant.
Mónica P. Folch, Assistant United States Attorney, Southern
District of New York, with whom Audrey Strauss, United States
Attorney, Southern District of New York, and Benjamin H. Torrance,
Assistant United States Attorney, Southern District of New York,
were on brief, for appellee.
* Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Merrick B. Garland has been substituted for former Attorney General
William P. Barr as the defendant-appellee.
** Of the District Court of Rhode Island, sitting by
designation.
January 7, 2022
SELYA, Circuit Judge. Once the parties had resolved
this bitter employment discrimination dispute, a secondary
squabble erupted over the amount of attorneys' fees due to the
prevailing party (plaintiff-appellant Nelson Pérez-Sosa). The
district court reviewed detailed submissions from the parties and
awarded the plaintiff $170,331.56 in attorneys' fees. The
plaintiff challenges the architecture of the fee award and argues
that it does not reasonably compensate the attorney for her time.
Stripped to its essentials, the plaintiff's appeal
challenges the structural integrity of the fee award on the basis
of seven distinct rulings. After careful consideration, we affirm
all but two of those rulings, reverse those two rulings, vacate
the fee award, and remand for further proceedings consistent with
this opinion.
I. BACKGROUND
For several years, the plaintiff headed the appellate
practice of the United States Attorney's Office for the District
of Puerto Rico (the Office). During that time frame, the plaintiff
appeared as a witness in support of two colleagues, Carmen Márquez-
Marín (Márquez) and Francisco Reyes Caparrós (Reyes), each of whom
had complained of discriminatory or otherwise improper conduct by
the Office, in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. §§ 2000e-2000e-17. In separate
proceedings, Márquez and Reyes both won jury verdicts against the
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Office. See Márquez-Marín v. Barr, 463 F. Supp. 3d 165, 172
(D.P.R. 2020); Reyes Caparrós v. Barr, No. 15-2229, 2020 WL
1487267, at *1 (D.P.R. Feb. 28, 2020), appeal docketed, No. 20-
1792 (1st Cir. Aug. 19, 2020). In addition, Márquez brought a
further suit, which is still pending. See Márquez-Marín, 463 F.
Supp. 3d at 288 (denying summary judgment).
Some details are helpful. In 2006, the plaintiff
testified against the Office at trial in Márquez's original action,
which arose from the termination of her employment at the Office.
As a result of that action, Márquez was reinstated by court order.
Márquez's return to her duties was stormy, and the plaintiff
provided testimony favorable to her in further proceedings before
the Department of Justice's Equal Employment Opportunity (EEO)
officers. The plaintiff also provided testimony favorable to Reyes
with respect to his EEO complaint against the Office.
In April of 2016, the plaintiff was passed over for
reappointment as Chief of the Appellate Division of the Office (a
position he had held, under one title or another, for over twenty
years). Having not been reappointed to his leadership role — a
demotion that he believed was linked to his earlier testimony —
the plaintiff reverted to the position of line attorney. He
proceeded to file his own EEO complaint against the Office,
alleging constructive discharge in retaliation for his support of
his complaining colleagues, and then resigned that December. After
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that proceeding ran its course, the plaintiff filed suit in the
district court, alleging discrimination and retaliation under
Title VII.1 See 42 U.S.C. § 2000e-16(a); see also Green v. Brennan,
578 U.S. 547, 551 n.1 (2016) ("assum[ing] without deciding that it
is unlawful for a federal agency to retaliate against a civil
servant for complaining of discrimination"). For this purpose,
the plaintiff retained Maricarmen Almodóvar-Díaz (Attorney
Almodóvar), a sole practitioner in Puerto Rico who has handled
civil rights and employment discrimination matters since 1992.
From the outset, a visiting judge was assigned to preside
over the plaintiff's case — and that same judge continued to
preside over the ancillary fee-award proceedings. For nearly three
years, the parties sparred over discovery and other issues.
Progress was slow: no significant depositions were taken and no
dispositive motions were filed.
In February of 2020, the parties negotiated a
settlement. Under the terms of the settlement, the plaintiff
received a lump-sum payment of $450,000 plus reasonable attorneys'
fees. The amount of the fee award was left open, to be resolved
by further negotiation or — in default of an agreement — by the
district court.
1The plaintiff named the Attorney General of the United
States as the defendant. See 42 U.S.C. § 2000e-16(c). For ease
in exposition, we treat the Office as if it were the named
defendant.
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With the fee amount still up in the air, the plaintiff
moved for an award of $385,043.75. In support, he urged the
district court to endorse a rate of $325 per hour for Attorney
Almodóvar's time and to apply that rate to almost 1,200 hours of
claimed work. The Office filed an opposition, and the plaintiff
made a further filing in response.
The district court, in an unpublished rescript, set out
its findings and awarded the plaintiff a total of $170,331.56 in
attorneys' fees. We sketch the parameters of that award.
Employing the lodestar method, the court fixed Attorney
Almodóvar's hourly rate at $275 for time expended on core legal
work and $165 for time expended on non-core work (including
travel). In the process, it eliminated all time spent on
settlement negotiations and in connection with the Márquez and
Reyes matters. It proceeded to subtract hours that it deemed
excessive or unproductive and discounted hours too vaguely
recorded. Then, the court applied "an across-the-board 25% cut"
for what it perceived as "inflated" billing. Finally, the court
rejected the Office's suggestion that the fee award be slashed due
to the munificence of the settlement. The court explained that
"[t]he settlement award was reasonable for this case" and, thus,
reducing the fee because of the size of the award
"would . . . disincentivize an efficient settlement process in
future Title VII cases."
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Viewing the award as unreasonably low, the plaintiff
appealed.
II. ANALYSIS
We review a challenge to an award of attorneys' fees for
abuse of discretion. See Gay Officers Action League v. Puerto
Rico (GOAL), 247 F.3d 288, 292 (1st Cir. 2001). Of course, a
material error of law is perforce an abuse of discretion. See id.Absent a material error of law, "we will set aside a fee award
only if it clearly appears that the trial court ignored a factor
deserving significant weight, relied upon an improper factor, or
evaluated all the proper factors (and no improper ones), but made
a serious mistake in weighing them." Id. at 292-93.
The Supreme Court has cautioned against "appellate
micromanagement" of fee awards. Fox v. Vice, 563 U.S. 826, 838
(2011). In the same spirit, we have noted that the "trial court's
discretion in respect to fee awards is extremely broad." Lipsett
v. Blanco, 975 F.2d 934, 937 (1st Cir. 1992). There is good reason
for this respectful attitude. The record that reaches an appellate
court is more or less antiseptic and sometimes fails to capture
the nuances of the litigation. We appear in the ring after the
prize fight has ended. In contrast, the court below, having
refereed the bout round by round, has had an opportunity to watch
the bobbing and weaving, take the measure of all the punches thrown
and deflected, and assess which blows landed and which were nothing
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more than wild swings. That vantage point affords the court
special insight into each side's training, instincts, skill set,
and tactics. It follows that the district court's perspective on
the efficiency and quality of the lawyers' work is unmatched, see
United States v. Metro. Dist. Comm'n, 847 F.2d 12, 14-15 (1st Cir.
1988), and its determinations deserve "substantial deference,"
Fox, 563 U.S. at 838.
Where, as here, a federal statute paves the way for fee-
shifting, a prevailing plaintiff cannot simply name his prize and
expect the opposing party to foot the bill. The statute
underpinning the fee award in this case — section 706(k) of Title
VII of the Civil Rights Act of 1964 — is typical of the genre. It
authorizes the court to award "the prevailing party . . . a
reasonable attorney's fee." 42 U.S.C. § 2000e-5(k). This
provision was designed "to 'make it easier for a plaintiff of
limited means to bring a meritorious suit.'" N.Y. Gaslight Club,
Inc. v. Carey, 447 U.S. 54, 63 (1980) (quoting Christiansburg
Garment Co. v. EEOC, 434 U.S. 412, 420 (1978)).
The Supreme Court has explained that "a 'reasonable' fee
is a fee that is sufficient to induce a capable attorney to
undertake the representation of a meritorious civil rights case."
Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 552 (2010). Although
Perdue involved a different fee-shifting statute, 42 U.S.C.
§ 1988, the Court has made pellucid that its "case law construing
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what is a 'reasonable' fee applies uniformly to all" federal fee-
shifting statutes couched in similar language. City of Burlington
v. Dague, 505 U.S. 557, 562 (1992).
A common way of determining a reasonable fee is through
the lodestar method. See Perdue, 559 U.S. at 552. We have
described this approach as "the method of choice for calculating
fee awards." Matalon v. Hynnes, 806 F.3d 627, 638 (1st Cir. 2015).
The lodestar amount equals "the number of hours reasonably expended
on the litigation multiplied by a reasonable hourly rate." Hensley
v. Eckerhart, 461 U.S. 424, 433 (1983). Calculating this amount
requires two steps (which may be followed by a final corrective
gesture).
First, the court must "calculate the number of hours
reasonably expended by the attorneys for the prevailing party,
excluding those hours that are 'excessive, redundant, or otherwise
unnecessary.'" Cent. Pension Fund of the Int'l Union of Operating
Eng'rs & Participating Emps. v. Ray Haluch Gravel Co., 745 F.3d 1,
5 (1st Cir. 2014) (quoting Hensley, 461 U.S. at 434). Second, the
court must identify "a reasonable hourly rate or rates — a
determination that is often benchmarked to the prevailing rates in
the community for lawyers of like qualifications, experience, and
competence." Id. Multiplying the results of the first two steps
yields the lodestar amount. See id. The court may then elect to
adjust the lodestar amount, either upward or downward, if the
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specific circumstances of the case warrant such an adjustment.
See Coutin v. Young & Rubicam P.R., Inc., 124 F.3d 331, 337 & n.3
(1st Cir. 1997) (stating that court may adjust lodestar amount in
accordance with twelve factors); see also Perdue, 559 U.S. at 554(holding that enhancement is permitted only in "rare circumstances
in which the lodestar does not adequately take into account a
factor that may properly be considered").
The lodestar method, properly applied, "yields a fee
that is presumptively sufficient to achieve" the underlying
purposes of fee-shifting. Perdue, 559 U.S. at 552. Although this
method requires arithmetical calculations, we must bear in mind
that the district court's task in fashioning a reasonable fee —
and ours, too — "is to do rough justice, not to achieve auditing
perfection." Fox, 563 U.S. at 838. Because district judges "need
not, and indeed should not, become green-eyeshade accountants,"
they "may take into account their overall sense of a suit, and may
use estimates in calculating and allocating an attorney's time."
Id.With this framework in place, we turn to the district
court's construction of the lodestar. In shaping the lodestar,
the court made a series of embedded rulings. Refined to bare
essence, the plaintiff's appeal challenges seven of those rulings.
We start with two rulings that we find problematic: the
district court's conclusions that time expended in settlement
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negotiations and time expended in performing work that implicated
other cases, distinct but related, must categorically be excluded
from the fee award. We then discuss the plaintiff's five remaining
challenges.
A. Time Spent on Settlement Negotiations.
The district court disallowed 13.75 hours that counsel
claims to have spent in negotiating the settlement. The court
explained that "[t]he weight of authority cautions courts against
awarding fees for time engaged in settlement negotiations, lest it
disincentivize defendants from participating in such discussions."
In support, the court relied on two cases: Janney Montgomery Scott
LLC v. Tobin, 692 F. Supp. 2d 192 (D. Mass. 2010) and Osorio v.
Municipality of Loiza, No. 13-1352, 2016 WL 3264122 (D.P.R. June
14, 2016). As relevant here, those cases stand for two closely
aligned propositions: that "[s]ettlement negotiations are not
normally considered in the lodestar calculation" and that the
"institutional policy favoring settlement" requires deducting
settlement time from the fee award so as not to "discourage parties
from engaging in such negotiations." Janney, 692 F. Supp. 2d at
198; accord Osorio, 2016 WL 3264122, at *7. These decisions do
not represent the weight of authority, and we reject the
propositions for which they stand.
The justification for paying an attorney for time
reasonably spent in settlement negotiations is strong. In civil
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rights cases, Congress wanted a prevailing plaintiff's attorney to
be compensated "for all time reasonably expended on a matter."
Blanchard v. Bergeron, 489 U.S. 87, 91 (1989) (quoting S. Rep. No.
94-1011, at 6 (1976)). Because civil rights may be vindicated
equally as well by efficacious settlement as by dogged litigation,
see Maher v. Gagne, 448 U.S. 122, 129 (1980), appropriate
exploration of settlement is time well spent and, therefore,
compensable.
We hold that a court should include time reasonably
expended in settlement negotiations within the lodestar when
calculating attorneys' fees. This holding does not break any
ground: many other courts have so held. See, e.g., Ngena Found.
v. F&R Crous Found., No. 20-793, 2021 WL 1546457, at *4 (D.D.C.
Apr. 20, 2021) (citing cases); Estiverne v. Esernio-Jenssen, 908
F. Supp. 2d 305, 310 (E.D.N.Y. 2012); Trainor v. HEI Hosp. LLC,
No. 09-10349, 2012 WL 119597, at *10 (D. Mass. Jan. 13, 2012),
aff'd in part, vacated in part on other grounds, 699 F.3d 19 (1st
Cir. 2012). Indeed, in Lindy Brothers Builders, Inc. of
Philadelphia v. American Radiator & Standard Sanitary Corp. — the
seminal case that "pioneered" the lodestar approach, Perdue, 559
U.S. at 551 — the Third Circuit included "settlement negotiations"
among the classes of compensable work. 487 F.2d 161, 167 (3d Cir.
1973).
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To be sure, fee-shifting statutes should not be read to
"darken prospects for settlement." Evans v. Jeff D., 475 U.S.
717, 735 (1986).2 Even so, the district court's forecast that
settlements will be frustrated by allowing compensation for time
reasonably expended in settlement negotiations is unduly
pessimistic. We think it is unrealistic to assume that the
marginal cost of counsel's work on settlement will scare off
defendants in a substantial number of cases. Litigants settle
cases because doing so is cheaper and less risky than fighting
tooth and nail to the bitter end. The extra expense of
compensating time reasonably spent in settlement negotiations
scarcely alters this calculus. Nor will attorneys be tempted to
drag out talks unnecessarily because the court will later trim
away time wasted as unreasonably expended.
In sum, time reasonably spent in pursuit of settlement
is worthwhile and, therefore, generally fit for inclusion in a fee
award. Speculative concerns about misguided incentives do not sap
the force of this conclusion. Because the district court erred as
2 In Evans, the Supreme Court's holding that settlements
sometimes may entail a "negotiated waiver of attorney's fees"
rested in part on the fear "that parties to a significant number
of civil rights cases will refuse to settle if liability for
attorney's fees remains open." 475 U.S. at 732, 736. Although
Evans referred to a distinct statute, 42 U.S.C. § 1988, the Court's
reasoning applies four-square to Title VII's analogous fee-
shifting provision. See Indep. Fed'n of Flight Attendants v.
Zipes, 491 U.S. 754, 758 n.2 (1989).
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a matter of law in categorically excluding time spent on settlement
negotiations from the lodestar calculation, we reverse its ruling.
On remand, the district court should augment the fee award by
allowing credit for all time reasonably spent by the plaintiff's
counsel during the course of settlement negotiations.
B. Time Spent on Work Connected to Other Cases.
The district court categorically excluded 43.75 hours
relating to work done by the plaintiff's lawyer in connection with
the Reyes and Márquez matters. This work included preparing the
plaintiff for both his deposition in the Márquez litigation and
his testimony at the Reyes trial. It also included the lawyer's
attendance at the Reyes trial. Even though the district court
"acknowledge[d] that the strength vel non of Plaintiff's testimony
in those cases weighed directly on [his] ability to secure a
settlement in the instant case," it nonetheless concluded — as a
categorical matter — that "work done in one case is not properly
recovered in a distinct case under a fee-shifting statute."
The district court's view is not without some support in
the case law. In Barrett v. Salt Lake County, the Tenth Circuit
held that a prevailing Title VII plaintiff may not recover
attorneys' fees for time spent in navigating the employer's
optional grievance process even if such work was "useful and of a
type ordinarily necessary to secure the final result obtained from
the litigation." 754 F.3d 864, 870 (10th Cir. 2014) (internal
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quotations omitted) (quoting Pennsylvania v. Del. Valley Citizens'
Council for Clean Air (Delaware Valley), 478 U.S. 546, 561 (1986)).
There, the court decided that the useful-and-necessary standard
does not apply to actions under Title VII. See id. at 870-71; cf.
Binta B. ex rel. S.A. v. Gordon, 710 F.3d 608, 631 (6th Cir. 2013)
("[W]e are troubled by the idea of ever permitting plaintiffs'
counsel to receive fees for work performed in a completely separate
case.").
We do not agree. To determine "the number of hours
reasonably expended on the litigation," Hensley, 461 U.S. at 433,
an inquiring court must look not to labels but, rather, to the
nature of the work and its utility to the case at hand, see Delaware
Valley, 478 U.S. at 561. That "look" is not constrained by the
four corners of the particular case. See Nat'l Ass'n of Concerned
Veterans v. Sec'y of Def., 675 F.2d 1319, 1335 (D.C. Cir. 1982).
Instead, a court should award fees for all hours logged in
connection with work that is "'useful and of a type ordinarily
necessary' to secure the final result obtained from the
litigation." Delaware Valley, 478 U.S. at 561 (quoting Webb v.
Bd. of Educ., 471 U.S. 234, 243 (1985)); see Hutchinson ex rel.
Julien v. Patrick, 636 F.3d 1, 15 (1st Cir. 2011). This standard
controls even when that work implicates some other case. See
Schneider v. Colegio de Abogados de P.R., 187 F.3d 30, 32-33 (1st
Cir. 1999) (per curiam) (applying the "useful and of a type
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ordinarily necessary" standard to "work done in the [Puerto Rico]
courts before the filing of the federal lawsuit").
We see no reason why this useful-and-necessary standard
should not apply in Title VII actions. The Supreme Court treats
the standard as versatile, deploying it in cases implicating such
disparate statutes as 42 U.S.C. § 1988, see Webb, 471 U.S. at 243,
the Clean Air Act, see Delaware Valley, 478 U.S. at 561, and the
Employee Retirement Income Security Act of 1974, see Ray Haluch
Gravel Co. v. Cent. Pension Fund of Int'l Union of Operating Eng'rs
& Participating Emps., 571 U.S. 177, 189-90 (2014). And we have
followed suit in a case under the Americans with Disabilities Act.
See Hutchinson, 636 F.3d at 15. Concluding, as we do, that there
is no principled basis for exempting Title VII cases from the reach
of this standard, we hold that the standard applies to such cases.
Accord Green v. Adm'rs of the Tulane Educ. Fund, 284 F.3d 642, 662
(5th Cir. 2002); Bobbitt v. Paramount Cap Mfg. Co., 942 F.2d 512,
514 (8th Cir. 1991).
The upshot is that Title VII's fee-shifting provision,
42 U.S.C. § 2000e-5(k), should be construed as treating all useful
and ordinarily necessary legal work as performed "for the
litigation," even if the work was done outside the four corners of
the particular case. Ray Haluch, 571 U.S. at 189. Building on
this foundation, we hold that, in constructing the lodestar in a
Title VII case, the district court may award attorneys' fees to a
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prevailing plaintiff for time reasonably expended in connection
with a separate but related case. To be compensable, though, the
time expended must be devoted to work that is useful and of a type
that is ordinarily considered necessary to the matter at hand.3
As the Ninth Circuit aptly put it, "the award of fees should cover
'every item of service which, at the time rendered, would have
been undertaken by a reasonably prudent lawyer to advance or
protect [her] client's interest' in the case at bar." Armstrong
v. Davis, 318 F.3d 965, 971 (9th Cir. 2003) (quoting Hasbrouck v.
Texaco, Inc., 879 F.2d 632, 638 (9th Cir. 1989)).
To say more on this point would be supererogatory. The
district court's per se exclusion of counsel's time in connection
with the Márquez and Reyes matters from the fee-award calculus
constituted an error of law and must be reversed. On remand, the
3 Everything depends on context. On the one hand, preparing
a client for his testimony in a separate but related case may well
bear fruit (depending on the circumstances) when the client's own
case is tried or when a settlement is in prospect. See Green, 284
F.3d at 662 (awarding Title VII plaintiff attorneys' fees for time
spent on depositions in distinct workers' compensation suit
because "[t]he workers' compensation case made available to [the
plaintiff]'s counsel information and discovery which was necessary
to effectively litigate the Title VII claim"); Campbell v. District
of Columbia, 202 F. Supp. 3d 121, 134-35 (D.D.C. 2016) (awarding
fee to civil rights plaintiff for time counsel spent on depositions
in distinct but related action against other defendants when
"depositions . . . aided her attorneys' trial preparation" and
"provided evidence for trial"). On the other hand, sitting through
an entire trial of a separate but related case in hopes that a
nugget of new information will surface may well be over the top
(depending on the circumstances) in terms of advancing the client's
case.
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district court should augment the fee award by allowing credit for
all time reasonably spent by the plaintiff's counsel in performing
useful and ordinarily necessary work in connection with those
matters.
C. The Remaining Challenges.
This leaves the plaintiff's five remaining challenges,
which we address sequentially.
1. Hourly Rates. The plaintiff challenges the district
court's choice of a reasonable hourly rate for Attorney Almodóvar's
core legal work.4 With respect to fee-shifting, the reasonable
hourly rate in any given case "will vary depending on the nature
of the work, the locality in which it is performed, the
qualifications of the lawyers, and other criteria." United States
v. One Star Class Sloop Sailboat Built in 1930 with Hull No. 721,
Named "Flash II", 546 F.3d 26, 38 (1st Cir. 2008). For guidance
in setting an appropriate rate for a particular attorney's time,
courts look to a constellation of factors, including the rate that
the particular attorney "actually charges to clients in the
ordinary course of [her] practice" and "data evidencing the
Although the plaintiff also challenges the district court's
4
allocation of attorney time into discrete rubrics (core and non-
core), see infra Part II(C)(2), he does not separately make a
developed challenge to the rate — $165 per hour — assigned by the
court to time devoted to non-core work. Consequently, any such
challenge is waived. See United States v. Zannino, 895 F.2d 1, 17
(1st Cir. 1990).
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prevailing market rate for counsel of comparable skill."
Hutchinson, 636 F.3d at 16. "The fee-seeker must carry the burden
of establishing the prevailing hourly rate (or schedule of rates)
in the community for the performance of similar legal services by
comparably credentialled counsel." Id.In the fee petition, the plaintiff sought a flat rate of
$325 per hour for all of Attorney Almodóvar's time. For her part,
Attorney Almodóvar professed to be unable to establish her own
standard billing rate because for many years she had been paid
either on a contingent-fee basis (that is, a percentage of the
recovery gained for her client) or on the basis of a negotiated
lump sum. To fill this void, she pointed to billing rates
previously used in calculating fees for other attorneys of like
experience practicing in Puerto Rico. See Watchtower Bible & Tract
Soc'y of N.Y., Inc. v. Municipality of Carolina, No. 16-1207, ECF
No. 608 (D.P.R. Feb. 6, 2019) (fashioning fee award under 42 U.S.C.
§ 1988 and concluding that $315 per hour was "in line with
sophisticated federal litigators who handle complex issues");
Reyes Cañada v. Rey Hernandez, 411 F. Supp. 2d 53, 56 (D.P.R. 2006)
(setting counsel's rate at $300 per hour for in-court time and
$275 per hour for out-of-court time in fee-award dispute). In
addition, she submitted an affidavit from a San Juan attorney to
the effect that $325 per hour was a reasonable rate "in this
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community for an attorney of [Attorney Almodóvar's] experience,
reputation and skills."
Other evidence, though, indicated a lower range of
rates. As a magistrate judge observed not long before the
plaintiff filed his fee petition in this case, "[a] review of
attorney's fees awarded in the District of Puerto Rico indicates
hourly rates hovering around $250 to $300 for experienced
attorneys." Skytec, Inc. v. Logistic Sys., Inc., No. 15-2104,
2019 WL 1271459, at *5 (D.P.R. Mar. 15, 2019) (awarding $275 per
hour to San Juan attorney with "thirty-five years of experience in
civil and commercial litigation"). A district judge, in an earlier
case, found "$250 per hour to be comparable to rates paid
to . . . experienced civil rights attorneys practicing in the San
Juan metropolitan area." Navarro-Ayala v. Governor of P.R., 186
F. Supp. 3d 128, 137 (D.P.R. 2016).
The court below, in its own words, "survey[ed] the
parties' submissions and the cited authorities." It then set an
hourly rate of $275 for Attorney Almodóvar's core legal work. The
plaintiff challenges this determination.
District courts have wide discretion in selecting fair
and reasonable hourly rates for attorney time. See Lipsett, 975
F.2d at 937; Metro. Dist. Comm'n, 847 F.2d at 17. This discretion
is especially wide where, as here, a district judge has presided
over a case from its inception and has had an opportunity to
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measure a particular attorney's level of skill and diligence at
first hand. See Matalon, 806 F.3d at 638; Torres-Rivera v.
O'Neill-Cancel, 524 F.3d 331, 340 (1st Cir. 2008). Nothing in the
record persuades us that the district court abused its wide
discretion in setting Attorney Almodóvar's hourly rate.
It was the plaintiff's burden to establish the market
rate for comparable services with "satisfactory evidence." Blum
v. Stenson, 465 U.S. 886, 895 n.11 (1984); see Bordanaro v. McLeod,
871 F.2d 1151, 1168 (1st Cir. 1989). Most often, there is not a
single reasonable rate for legal services but, rather, a range of
reasonable rates. See Metro. Dist. Comm'n, 847 F.2d at 17. Here,
the plaintiff's attorney had no standard billing rate, and the
extrinsic evidence shows a range of reasonable rates. Although
each party dismisses the other's proffered authorities as
"outliers," we think that the evidence before the district court
supported a conclusion — on this chiaroscuro record — that the
market rate for experienced litigators in San Juan encompassed a
spread from $250 to $300 per hour. Given this spread, it was
within the realm of reason (and, thus, within the district court's
discretion) to set Attorney Almodóvar's hourly rate at the mid-
point.
In an effort to undermine this determination, the
plaintiff makes two arguments. First, he suggests that the
district court's determination deserves diminished deference
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because the judge was a visitor who was "[u]nfamiliar with attorney
rates in Puerto Rico." This argument is unconvincing.
To start at the beginning, the plaintiff's lengthy
service in the Office made the assignment of an out-of-district
judge to preside over his case virtually inevitable. The plaintiff
does not dispute that Judge Smith was duly assigned to preside by
order of the Chief Judge of the First Circuit. See 28 U.S.C.
§ 292(b). Consequently, Judge Smith — though a visitor — possessed
the full panoply of judicial powers needed for adjudication of the
litigation. See id. § 296. Seen in this light, the judge's
rulings are entitled to the same deference as those of any other
district judge.5 See United States v. Green, 89 F.3d 657, 660 (9th
Cir. 1996) ("[T]he law does not recognize any difference in the
authority of a district judge visiting from another court versus
a judge assigned permanently to that district."); Allstate Fin.
Corp. v. Zimmerman, 296 F.2d 797, 799 n.2 (5th Cir. 1961) (same).
We know of no authority — and the plaintiff has cited
none — that alters the standard of review for fee awards made by
a visiting judge. What authority there is points in the opposite
direction. See, e.g., Arizona v. ASARCO LLC, 773 F.3d 1050, 1060-
5 Although a district court may "rely upon its own knowledge
of attorney's fees in its surrounding area in arriving at a
reasonable hourly rate," Andrade v. Jamestown Hous. Auth., 82 F.3d
1179, 1190 (1st Cir. 1996), Judge Smith made no pretense of doing
so here. Instead, he appropriately relied on the parties'
submissions and case law.
- 22 -
61 (9th Cir. 2014) (en banc) (applying abuse-of-discretion
standard to visiting judge's fee award under Title VII). District
judges are generalists. Their usual work requires them to receive
and process evidence, absorb the import of that evidence, apply
the law, and render fair and impartial decisions. There is no
requirement that the judge have independent knowledge of the
subject matter. Just as a judge who is not trained in mechanical
engineering may hear evidence and determine whether a particular
machine is defective, so too a judge who does not regularly preside
in a particular jurisdiction may hear evidence about attorneys'
hourly rates and determine what rate is reasonable for a specific
lawyer in that jurisdiction.
Second, the plaintiff faults the district court for not
giving weight to a Puerto Rico statute (Act No. 402 of May 12,
1950, as amended) that bars an employee's attorney from charging
the employee for work done on claims against the employer. See
P.R. Laws Ann. tit. 32, § 3115. Withal, the plaintiff did not
advance this argument before the district court: his only mention
of the statute was in connection with his explanation as to why
Attorney Almodóvar did not have an established hourly rate for her
work. We therefore deem the argument waived. See Teamsters Union,
Local No. 59 v. Superline Transp. Co., 953 F.2d 17, 21 (1st Cir.
1992) ("If any principle is settled in this circuit, it is that,
absent the most extraordinary circumstances, legal theories not
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raised squarely in the lower court cannot be broached for the first
time on appeal."); McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 22
(1st Cir. 1991); United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990).
2. Non-Core Legal Work. The district court reduced the
hourly rate for 392.75 hours of "non-core" legal work to $165.6
As the plaintiff concedes, binding circuit precedent allows a
district court, when constructing a fee-shifting award, to "set
two separate hourly rates for a particular attorney — one for
'core' tasks like 'legal research, writing of legal documents,
court appearances, negotiations with opposing counsel, monitoring,
and implementation of court orders' and a lower one for 'non-core'
tasks, which are 'less demanding,' such as 'letter writing and
telephone conversations.'" Matalon, 806 F.3d at 638 (quoting
Brewster v. Dukakis, 3 F.3d 488, 492 n.4 (1st Cir. 1993)). He
nonetheless argues that applying the distinction between core and
6 The district court identified the non-core legal work as
comprising "20 hours of travel, 39.25 hours of deposition and trial
transcript review and summarization, 169.25 hours of non-
deposition, non-trial related meetings with Plaintiff, 60.75 hours
of routine telephone calls, emails, and other correspondence,
44.75 hours of consultations with third parties/experts, 33.75
hours of discovery-related entries, 18 hours of docket management,
and 7 hours of drafting and issuing boilerplate documents like
deposition notices." The notion that work of this sort should be
treated differently did not come out of the blue: after the Office
filed its opposition to the fee petition and raised this point,
the plaintiff conceded that a 10 percent reduction would be
appropriate with respect to attorney time spent on communications
with the client, opposing counsel, witnesses, and experts.
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non-core work was unreasonable in this instance because (he says)
such a practice "is virtually unheard-of in Puerto Rico." He also
argues that the district court abused its discretion by
"mechanically" applying the core/non-core distinction. Neither
argument gains him any traction.
It is true, of course, that a fee award must accommodate
regional variety because the fee is "calculated on the basis of
rates and practices prevailing in the relevant market." Missouri
v. Jenkins, 491 U.S. 274, 286 (1989). Here, however, the plaintiff
has put forth nothing to indicate that Puerto Rico is not subject
to the discipline of the market for legal services in the way in
which we have understood that market to operate in the mainland.
Consequently, he has failed to show that the market for legal
services in Puerto Rico is immune from the same real-world
constraints on lawyers that exist elsewhere.
We have said before — and today reaffirm — that, in
general, "clerical or secretarial tasks ought not to be billed at
lawyers' rates, even if a lawyer performs them." McMillan v. Mass.
Soc'y for the Prevention of Cruelty to Animals, 140 F.3d 288, 308
(1st Cir. 1998) (quoting Lipsett, 975 F.2d at 940). Although this
is not a "hard-and-fast rule[]," Matalon, 806 F.3d at 639, the
district court's choice to adopt the core/non-core distinction in
compiling a fee award was well within the zone of its discretion.
It follows that the district court did not abuse its discretion in
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adopting the core/non-core distinction to compensate less
demanding work at a lower rate. See Lilly v. City of New York,
934 F.3d 222, 234 (2d Cir. 2019) ("[I]t is highly unlikely that a
paying client would agree to pay any person [a lawyer's full rate]
for an hour of sending and receiving faxes, calling medical
offices, and delivering papers.").
Nor is there any merit to the plaint that the district
court applied the core/non-core distinction "mechanically." In
its fee-award submissions, the Office identified numerous items in
Attorney Almodóvar's billing records that appeared to correlate
with accepted definitions of non-core work. The plaintiff offered
nothing to rebut this taxonomy. Instead, he argued that the
district court should not apply the distinction at all because
Attorney Almodóvar is a sole practitioner who did not have
associates to whom she could delegate routine tasks. This argument
will not wash: that an attorney chooses to practice without
partners or associates does not automatically entitle her to her
full hourly rate for work routinely done by junior lawyers,
paralegals, secretaries, or other lower-level personnel. See
Lilly, 934 F.3d at 233-34. The district court did not abuse its
discretion in segregating time expended on non-core tasks and
earmarking such time for a reduced rate.
3. Unproductive Work. It is common ground that a
district court, in fashioning a fee award, may reduce hours claimed
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in a fee request for time spent on work that it determines to be
"unproductive, excessive, or otherwise unnecessary." Grendel's
Den, Inc. v. Larkin, 749 F.2d 945, 950 (1st Cir. 1984). In the
case at hand, the district court cut 75.5 hours related to work
that it found to be superfluous. These hours stemmed from a series
of fruitless motions and from what the district court deemed to be
excessive time spent on preparation of the fee petition itself.
With respect to the latter, the court reasoned that "counsel should
have made a good faith effort to resolve the petition" through
negotiation.
The district court's disallowance of these hours did not
constitute an abuse of discretion. The plaintiff's contention
that a court may discount work on losing claims but not on losing
motions is baseless. See One Star, 546 F.3d at 39-40 (rejecting
similar argument and affirming fee reduction when "district court
plausibly could have determined that efficient counsel would not
have invested the time . . . in litigating marginal issues").
Here, moreover, the court did not categorically exclude all time
spent on unsuccessful motions: it did not cut any time expended
by Attorney Almodóvar in connection with two other unsuccessful
discovery motions. With respect to those losing motions, it
concluded that the Office held "some responsibility for the matters
requiring a court-mediated resolution."
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Viewing the record as a whole, it is evident that the
district court took pains to separate fluff from fiber. Where the
plaintiff unsuccessfully pursued motions that the court found to
be useless or unnecessary, it refused to include the time spent in
the fee-award calculus; but where the plaintiff unsuccessfully
pursued motions that the court found to be useful or reasonably
necessary, it included the time spent in the fee-award calculus.
We discern no abuse of discretion. In constructing a
fee award, "it is the court's prerogative (indeed, its duty) to
winnow out excessive hours, time spent tilting at windmills, and
the like." GOAL, 247 F.3d at 296. This winnowing is committed to
the district court's informed judgment. See One Star, 546 F.3d at
40 (explaining that district court is "uniquely situated to
determine whether [prevailing party]'s lawyers wasted their time
(and the court's) by unreasonably or unnecessarily litigating
issues that were hopeless, peripheral, or otherwise extraneous").
Nothing in the record suggests an arbitrary exercise of that
judgment by the court below.
4. Cryptic Entries. The district court identified 251
"impermissibly vague entries" in Attorney Almodóvar's time sheets,
comprising 276 hours of work. Those cryptic entries, the court
said, did not provide it with "sufficient information to glean the
reasonableness of the time spent." Seventy-four of the entries
read only "Meeting with Client," fifty-five read only "Telephone
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conference [with] Client," and over twenty-five read only
"Electronic correspondence [to or from] Client." The court
discounted these hours by thirty percent, effectively removing a
total of 82.8 hours from the fee-award calculus.
We find no abuse of discretion. A court charged with
awarding attorneys' fees should not be asked to buy a pig in a
poke. We thus have made it plain that when fee-shifting is in
prospect, attorneys are obliged to maintain contemporaneous time
records. See Grendel's Den, 749 F.2d at 952. Those records must
be at least minimally illuminating: they need not contain granular
details, but they must contain some insight into the work
performed. See Calhoun v. Acme Cleveland Corp., 801 F.2d 558, 560
(1st Cir. 1986). Typically, such an entry will reveal "the date
[the work] occurred, the kinds of work that were done and the
percentage of time spent at each task." Id. Anything less will
unfairly hamper the party who is expected to pay the freight in
challenging "the accuracy of the records as well as the
reasonableness of the time spent." Id. So, too, anything less
will unfairly hamper the district court in performing its
evaluative task. After all, "nebulous" entries amounting to "gauzy
generalities" threaten to frustrate a district court's effort to
fashion a fair and reasonable fee award. Lipsett, 975 F.2d at
938.
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When time records are "too generic and, thus,
insufficient as a practical matter to permit a court to answer
questions about excessiveness, redundancy, and the like," the
court need not accept them at face value. Torres-Rivera, 524 F.3d
at 336. Instead, "the court may either discount or disallow those
hours." Id. "Attorneys' time records, submitted in support of
fee requests, often contain questionable entries, and the district
court's discretion in separating wheat from chaff is quite broad."
Id. at 340. Although such discretion "is not unbounded," we give
considerable deference to that court's "equitable" judgments
insofar as they are supported by "plausible rationale[s]." Id.In assessing this type of discount, we do not write on
a pristine page. We previously have affirmed just such an across-
the-board reduction for entries that — like the entries here —
"were not sufficiently detailed to enable the [district] court to
determine whether the fees were excessive or duplicative." Tenn.
Gas Pipeline Co. v. 104 Acres of Land, 32 F.3d 632, 634 (1st Cir.
1994). Similar to the entries discounted in this case, the entries
in that case were delphic (written in terms such as "'Confer with
co-counsel,' 'Confer with client,' 'Review materials,' 'Review
documents,' and 'Legal Research'") and were submitted "without any
indication of the subject matter involved." Id. Here, moreover
— as noted by the district court in explaining its across-the-
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board reduction — the plaintiff, when faced with the government's
objection to these entries, failed to provide more detail.
The plaintiff's sole rejoinder is that Attorney
Almodóvar had to shroud any records reflecting her communications
with the plaintiff in view of the "delicate matter" of keeping
"client confidences." This rejoinder falls short. Although we
are sensitive to an attorney's duty to protect confidential client
communications, that duty does not run at cross-purposes with the
attorney's obligation to keep sufficiently transparent time
records. An attorney's time sheets are generally not intended for
public consumption; and when the billing entries are disclosed at
the end of a case, confidentiality concerns are at a minimum. In
all events, we see no reason why the general subject matter of a
meeting or communication cannot be supplied so that the court may
conduct the necessary review.7 See Avgoustis v. Shinseki, 639 F.3d
1340, 1343 (Fed. Cir. 2011) ("Under numerous fee-shifting
statutes, courts of appeals have consistently required that
attorneys' fee applicants provide the general subject matter of
their billing entries."); id. at 1344 (explaining "that such
requirements [under the Equal Access to Justice Act] do not in
7 For instance, embellishing a "conference with client" entry
with, say, "re deposition preparation" or "re identification of
potential witnesses" would not invade client confidentiality. It
is precisely that sort of embellishment that may transform a
generic time entry into a sufficiently informative time entry.
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most cases invade the attorney-client privilege when applied to
client communications"). Protecting client confidentiality
neither excuses nor explains a fee-seeker's failure to come forward
with records sufficient to establish his entitlement to the fees
sought.
To sum up, it was not unreasonable for the district court
to expect that the plaintiff would offer enough insight into the
billing entries to allow an informed appraisal. This was
especially true since the plaintiff was challenged on this point
in the Office's opposition to the fee petition, yet passed on the
opportunity to clarify the details of the overly cryptic billing
entries in his reply memorandum. We conclude, therefore, that the
court did not abuse its discretion in applying a thirty percent
reduction to offset the paucity of meaningful information in the
submitted time sheets.
5. Overbilling and Inefficiency. Attorneys' time
records are not expected to be precise to the last second. The
demands of practicing law are such that an attorney's time is
normally recorded in relatively convenient increments. A
conventional approach is to divide an hour into ten segments and
record chargeable time in six-minute increments. See Valentin v.
Municipality of Aguadilla, No. 03-1009, 2006 WL 2583757, *2 (D.P.R.
Sept. 7, 2006) (collecting cases and explaining that "[o]ne tenth
of an hour, or six minutes, is the usual billing increment"); see,
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e.g., Lucky Brand Dungarees, Inc. v. Ally Apparel Res., LLC, No.
05-6757, 2009 WL 466136, at *4 (S.D.N.Y. Feb. 25, 2009).
Even with six-minute increments, there will be some
"breakage" favorable to the attorney. If, say, a particular task
takes only four minutes, the time is still recorded as six minutes.
In other words, any fraction of time left over in the last
increment is typically rounded up. This means, of course, that
the larger the time increments, the more the breakage will favor
the attorney. See E. Associated Coal Corp. v. Dir., Off. of
Workers' Comp. Programs, 724 F.3d 561, 576 (4th Cir. 2013) (stating
"that the practice of quarter-hour billing may lead to
overbilling"); Lucky Brand Dungarees, 2009 WL 466136, at *4
(explaining that billing in quarter-hour increments "tends
substantially to overstate the amount of time
spent . . . and . . . adds an upward bias in virtually all
cases").
Here, Attorney Almodóvar recorded her time in increments
of fifteen minutes. The district court applied "an across-the-
board 25% cut to the remaining attorney's fee award to account for
the time inflated by [this] quarter-hour billing and excessive
time spent on reviewing discovery and communication with the
client." In this regard, the court supportably found that Attorney
Almodóvar's time sheets featured 525 fifteen-minute entries, many
of which "related to tasks that should have taken only a few
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minutes to complete." The plaintiff concedes that, due to Attorney
Almodóvar's use of quarter-hour billing increments, her time
entries "reflect more time than might be considered 'reasonable.'"
The court below did not abuse its discretion in applying a
reduction in light of counsel's quarter-hour billing praxis,
particularly given the hundreds of fifteen-minute entries that —
in the court's view — functioned to pad the amount of time charged.
See Diffenderfer v. Gomez-Colon, 587 F.3d 445, 455-56 (1st Cir.
2009) (affirming "across-the-board fee reduction" when "plaintiffs
had billed fifty or more menial items in quarter-hour increments
when the actual task would have taken a negligible amount of
time"); see also Yellowbook Inc. v. Brandeberry, 708 F.3d 837, 849
(6th Cir. 2013) ("Whether quarter-hour billing is reasonable is a
matter within the discretion of the district court.").
Nor was counsel's persistent use of quarter-hour billing
increments the only example of "inflated" billing identified by
the district court in support of its across-the-board cut. The
court also found that even though Attorney Almodóvar claimed to
have "spent entire days reviewing discovery," it was "simply not
reasonable to bill this many hours for document review," given the
case's stunted progress. Finally, the court found that — above
and beyond these failings — overbilling was "pervasive" in Attorney
Almodóvar's time entries. By way of illustration, the court
pointed to thirty minutes billed by the plaintiff's counsel for
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reviewing a single voicemail from the Office — an entry that even
the plaintiff now characterizes as "a mistake."
Notwithstanding this concession, the plaintiff disputes
the broader sweep of the district court's findings. He argues
that Attorney Almodóvar was staying on top of the case and that
the court "penaliz[ed]" her "for being diligent." He further
posits that plaintiffs in employment discrimination cases are
plagued by "information asymmetry" inasmuch as the employer
typically controls the evidence and witnesses. This dynamic, the
plaintiff complains, is aggravated when the Office is the foe.
So, he says, it was both reasonable and responsible for a sole
practitioner to burn the midnight oil, poring over discovery, to
do battle with a phalanx of government lawyers.
Although the plaintiff's arguments about information
asymmetry are not without some force, the balancing of such case-
specific factors lies squarely within the "wide discretion" of the
district court. Fox, 563 U.S. at 839. As long as that court
"calls the game by the right rules," id., it is "uniquely situated
to determine whether . . . lawyers wasted their time," One Star,
546 F.3d at 40. So it is here.
Let us be perfectly clear. A district court charged
with making a fee award may reduce the time claimed by the
prevailing parties' lawyers. See, e.g., id. at 41-42; Grendel's
Den, 749 F.2d at 955. In effecting such a reduction, though, the
- 35 -
court must make "reasonably explicit findings" and "spell out the
whys and wherefores." Coutin, 124 F.3d at 337 (quoting Brewster,
3 F.3d at 493). The court below answered this call: it sifted
through the parties' asseverations, examined their submissions,
brought to bear its familiarity with the nuances of the litigation
and its experience with the realities of legal practice, adequately
explained its thinking, and knit those thoughts into a plausible
rationale. No more was exigible.
The plaintiff has a fallback position, which we
summarily reject. There is nothing to his remonstrance that the
district court engaged in "double discount[ing]" by applying the
across-the-board reduction for overbilling and inefficiency
despite some of that time already being discounted as related to
the performance of non-core tasks. The district court's analysis
did not embody double discounting. See One Star, 546 F.3d at 42.
The court simply tested both the proposed billing rate and the
claimed number of hours expended, trimming each where appropriate
to determine a reasonable fee award.
III. CONCLUSION
We need go no further. The district court presided over
this contentious litigation with great care and circumspection for
more than three years. When the parties finally resolved their
differences, the court's one remaining chore was to quantify the
amount of attorneys' fees due to the plaintiff. For the most part,
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the court skillfully traversed this rocky terrain, but it stumbled
at two points. Although we affirm most of the embedded rulings
contributing to the composition of the fee award, we reverse two
of those rulings and remand the matter so that the amount of fees
awarded can be augmented for the time reasonably expended by the
plaintiff's counsel on settlement negotiations and in connection
with other distinct cases (to the extent that such work was useful
and ordinarily necessary vis-à-vis counsel's representation of the
plaintiff in this matter). We therefore affirm all but two of the
district court's embedded rulings, reverse those two rulings,
vacate the fee award, and remand for further proceedings consistent
with this opinion. The parties shall bear their own costs.
Affirmed in part, reversed in part, vacated, and remanded.
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