Phetosomphone v. Allison Reed Group, Inc.

January 20, 1993
                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 92-1117

                     NENH PHETOSOMPHONE,

                    Plaintiff, Appellant,

                              v.

     ALLISON REED GROUP, INC. d/b/a TECHNI-CRAFT PLATING,
                NOEL SMITH AND CAROL MARSELLA,

                    Defendants, Appellees.

                                         

No. 92-1118

                       GARY SHOWALTER,

                    Plaintiff, Appellant,

                              v.

    ALLISON REED GROUP, INC. d/b/a/ TECHNI-CRAFT PLATING,
                NOEL SMITH AND CAROL MARSELLA,

                    Defendants, Appellees.

                                         

        APPEALS FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF RHODE ISLAND

        [Hon. Ronald R. Lagueux, U.S. District Judge]
                                                    

                                         

                            Before

                   Torruella, Circuit Judge,
                                           
                Aldrich, Senior Circuit Judge,
                                             
                  and Boudin, Circuit Judge.
                                           

                                         

Susan  Deveney with  whom Michael  R.  Hagopian  was on  brief for
                                               
appellants.

Elizabeth A. Del Padre for appellee Noel Smith.
                      
Steven A.  Robinson with  whom Shayle  Robinson was  on brief  for
                                               
appellee Allison Reed Group, Inc. d/b/a/ Techni-Craft Plating.

                                         

                                         

     BOUDIN,  Circuit  Judge.     Gary  Showalter  and   Nenh
                            

Phetosomphone, plaintiffs in the district court,  appeal from

that  court's  award  of  attorneys'  fees  following   their

successful Title  VII suit.    Because we  conclude that  the

district court  did not abuse its  considerable discretion in

determining an appropriate fee award, we affirm.

                              I.

     Plaintiffs  brought  separate suits,  later consolidated

for trial, against Allison Reed Group, Inc. ("Allison Reed"),

Noel Smith and Carol  Marsella, alleging that plaintiffs were

the  victims of sexual harassment in the workplace.  In their

complaints,  plaintiffs  sought  equitable   and  declaratory

relief and back pay under  Title VII of the Civil  Rights Act

of 1964, 42  U.S.C.   2000e et seq., as  well as compensatory
                                   

damages under  Rhode Island law  for the tort  of intentional

infliction of emotional distress.

     Plaintiffs' tort  claim against Smith  and Marsella  was

tried to a jury, and the Title VII claim against Allison Reed

and Smith was tried  simultaneously to the court.1   The jury

returned  a verdict in  favor of defendants  on the state-law

claim.    The  court  ruled,  however,  that  plaintiffs  had

established  a claim  of  sexual harassment  under Title  VII

                    

     1The district court directed  a verdict for Allison Reed
on the state-law count at the close of plaintiffs' case.  The
court also ruled that Marsella was not a statutory "employer"
under Title VII and was therefore not a proper defendant with
respect to that count.

                             -2-

against Allison Reed and Smith.   The court ordered defendant

Allison  Reed to establish  a procedure for  claims of sexual

harassment,  and  enjoined  it  from  allowing  future sexual

harassment  of  Showalter should  he  return to  work.2   The

court  found  that  Phetosomphone  had   been  constructively

discharged  as a result of the sexual harassment and had been

out  of work for eight weeks, and  it awarded him back pay of

$1,737.60  plus  prejudgment  interest.     The  factual  and

procedural background of this case and the court's rulings on

the  merits are set forth  in detail in  Showalter v. Allison
                                                             

Reed Group, Inc., 

767 F. Supp. 1205

 (D.R.I. 1991).  
                

     After  its decision  on the  merits, the  district court

invited  plaintiffs to  submit an  application for  costs and

attorneys'  fees pursuant  to 42  U.S.C.    2000e-5(k).   The

court stated that "[t]he application for counsel fees must be

supported  by a detailed,  contemporaneous accounting  of the

time spent by the attorneys  on this case."  

767 F. Supp. at 1215

.  Plaintiffs'  counsel submitted an  application seeking

attorneys' fees  and costs  totalling $83,177.   The district

court  held  a  hearing  on  the  application,  and  directed

                    

     2At the time of  trial, Showalter was out of work due to
a  back  injury  and  was  receiving  worker's  compensation.
Because Showalter had not left his  employment because of the
harassment but  rather on account  of the  injury, the  court
held  that Showalter was not entitled to back pay.  The court
awarded Showalter $1 in nominal damages.

                             -3-

plaintiffs to submit  additional documentation in support  of

their claim.

     The district  court ultimately allowed  only $12,762  in

fees and  $240 in costs.  The  court issued a 13-page opinion

explaining  in detail  its reasons  for sharply  limiting the

award both as to  hours allowed and the hourly  rate claimed.

The court attached to its opinion a 16-page appendix in which

it  itemized  each  expenditure  of counsel  time  for  which

compensation  was  sought,  and  identified  which  had  been

allowed  and which had been reduced or stricken.  This appeal

followed.

                             II.

     Title VII  provides that "[i]n any  action or proceeding

under this subchapter the court, in its discretion, may allow

the prevailing party, other than the Commission or the United

States,  a reasonable attorney's  fee (including expert fees)

as  part  of  the  costs . . . ."  42  U.S.C.     2000e-5(k).

Accordingly, an award of  fees under the statute is  reviewed

primarily  under an  abuse  of discretion  standard, and  the

trial  court's range  of  discretion  is particularly  broad.

United States v.  Metropolitan Dist. Comm'n, 

847 F.2d 12, 14

                                           

(1st Cir.  1988).  We have  advised parties on more  than one

occasion  that "the  battle [over  attorneys' fee  awards] is

likely to  be determined in the trial court."  E.g., Foley v.
                                                          

City of Lowell,  

948 F.2d 10, 19

 (1st Cir.  1991).  Moreover,
              

                             -4-

"the  fee  applicant   bears  the   burden  of   establishing

entitlement to an award and documenting the appropriate hours

expended and hourly  rates."  Hensley v.  Eckerhart, 

461 U.S. 424, 437

 (1983).

     In Hensley, the Supreme Court explained that "[t]he most
               

useful  starting  point  for  determining  the  amount  of  a

reasonable fee is  the number of hours reasonably expended on

the litigation multiplied by a reasonable hourly  rate,"  

461 U.S. at 433

, adding that  adjustments could then  be made to

reflect   "other   considerations"   including  the   results

obtained.   

Id. at 434

.   In this  case, the  district court
              

determined compensable hours as follows:  it discounted hours

such as trial time to exclude time needed only because of the

presence of  the state  claim; it  disallowed hours  spent on

specific matters  that by their  nature could relate  only to

the state-law  claim; and  it disallowed hours  documented so

generally that the court could not determine their connection

to the Title VII  claim.3  Having  derived a total number  of

allowable hours, the court then multiplied  them by an hourly

fee, reducing plaintiffs' requested  hourly rate from $150 to

$90 per hour.

     Plaintiffs' broadest challenge on  this appeal is to the

concept of separating time devoted  to the federal and state-

                    

     3The  court also  disallowed  as  improbable claims  for
hours in  excess of 12 hours  by an attorney on  any one day.
There is no separate challenge to this determination.

                             -5-

law claims.  Plaintiffs  appear to recognize that, considered

separately,  time spent  on  the state-law  claims would  not

warrant attorney's fees, those claims being outside the ambit

of  Title VII  and unsuccessful to  boot.   Plaintiffs argue,

however, that  because their  Title VII and  state-law claims

arose  out of  the  same  set  of  facts,  virtually  all  of

counsel's  efforts to prepare this  case for trial related to

both  the  state-law  and  the  federal  claims.    In  these

circumstances, plaintiffs  contend, the courts  have rejected

attempts to attribute the  hours spent in the  preparation of

the case to  one claim or the other, and  instead have viewed

the  litigation as  a  whole in  setting  an appropriate  fee

award.  

     It  is quite  true  that in  Hensley  the Supreme  Court
                                         

cautioned that attempts to  allocate hours between claims may

be  unwarranted  where  an  action  involves   related  legal

theories applied to a common core of facts.  

461 U.S. at 434

-

35.   Thus a  district court may  find that  the federal  and

state  claims  are so  interrelated,  and the  time  spent in

preparation of  those claims so overlapping,  that an attempt

to separate the time  attributable to one or the  other would

be futile.  See,  e.g., Munson v. Milwaukee Bd  School Dirs.,
                                                           

969 F.2d 266, 272

 (7th  Cir. 1992); Wagenmann  v. Adams, 

829 F.2d 196, 225

  (1st Cir. 1987).  But it  does not follow that

the  district  court  is  prevented  from  eliminating  hours
                                   

                             -6-

attributable to  state-law claims  where, as here,  the court

reasonably concludes that there is not a complete overlap and

separation is proper.   Indeed, in Hensley  itself, where the
                                          

successful  and unsuccessful claims were closely related, the

Supreme Court  said generally that "[t]he  district court may

attempt to identify specific hours that should be eliminated,

or it may simply reduce the award to account for the  limited

success."  

461 U.S. at 436-37

.

     In  this  instance there  were,  as  the district  court

found, discrete  tasks performed by  plaintiffs' counsel that

related   only  to   the  state-law  claim   for  intentional

infliction  of   emotional  distress:     for  example,   the

development   of  evidence   regarding  the   emotional  harm

allegedly  suffered by  Showalter and  Phetosomphone (because

compensatory  damages  were not  then  available  under Title

VII),  and  efforts  relating  to  the  jury,  such  as  jury

selection and  preparation of instructions  (because only the

state-law  claim was  tried to  the  jury).      On the  same

principle,  we  believe  that   the  court  was  entitled  to

eliminate or discount  hours or other expenses that  it found

would not have been incurred  but for the unsuccessful state-

law claim.  See  Hensley, 

461 U.S. at 436-37

;  Wagenmann, 

829 F.2d at 225

 (segregable expenses).

     Plaintiffs   next   criticize   the   district   court's

application of this concept, arguing (often in fairly general

                             -7-

terms  but  with  some  examples)  that   some  of  the  time

discounted  or disallowed  should have  been permitted.   For

example,   plaintiffs   say   that   time   spent   on  state

administrative proceedings, which are a predicate to filing a

Title  VII claim,  should  have been  allowed,  and that  too

little  time  was  permitted  for  consulting  with  clients.

Admittedly,  in  excluding  or   limiting  these  hours,  the

district  court took a  very hard  line.   The disallowances,

however, were not irrational:  they stemmed from the district

court's decision that in these and similar instances, counsel

provided inadequate explanation of the nature of the services

for which compensation was  claimed, or of their relationship

to  the Title  VII claims,  or both.    Thus, where  the time

records contained  entries such as "library"  and "letters to

opposing counsel,"  the court excluded the  time, noting that

the entries "left the court guessing about their purposes."

     There was some basis for the district court's insistence

upon specificity.   The court, which  was intimately familiar

with the case, found  that plaintiffs' state-law claim played

a  very  substantial  role  in  plaintiffs'  preparation  and

prosecution of this action.  The court expressly rejected the

representation of plaintiff's  counsel that efforts  relating

exclusively to  the state-law claim comprised  less than five

percent  of her  total work  on the  case, "[s]ince  it [was]

readily apparent to  the Court that  most of the  plaintiffs'

                             -8-

efforts were  directed toward obtaining a  large damage award

under state  law . . .  ."  Compensatory  damages, of course,

were not available under Title VII at the time of this trial.

Compare Civil Rights Act of 1991, 

Pub. L. No. 102-166, 102

,
       

105 Stat. 1071

, 1072-73 (1991).  

     The district court's skepticism was also grounded in its

finding  that counsel  had failed  to submit  contemporaneous

time records  showing hours worked.   This omission persisted

even  after  the court  afforded  counsel  an opportunity  to

remedy  the problem.4  We have expressly advised the bar that

"the absence of detailed contemporaneous time records, except

in extraordinary circumstances, will  call for a  substantial

reduction in any award or, in egregious cases, disallowance."

Grendel's  Den, Inc. v. Larkin,  

749 F.2d 945, 952

 (1st Cir.
                              

1984);  accord,   Hensley,  

461 U.S. at 433

  ("Where  the
                         

documentation of hours is  inadequate, the district court may

reduce the award accordingly.").  In this case, the court did

not disallow  trial counsel's claim for lack of such records,

                    

     4Counsel  first  submitted  a   computer-generated  list
containing the  dates that counsel had  worked on plaintiffs'
case,  a brief  description of  the tasks  performed and  the
number  of hours expended.   The court  found this accounting
inadequate  and requested  counsel to  submit contemporaneous
records.    In response,  counsel  submitted  individual time
sheets  for the entries on the chronological list.  The court
found that all of these time sheets were  written by the same
hand in the  same pen, and  it concluded that the  sheets had
not been prepared contemporaneously.  This factual finding is
not clearly erroneous and we are bound to accept it.

                             -9-

but  that  lack did  encourage  the court  to  resolve doubts

against reimbursement.5  

     We also reject the claim  that the district court abused

its discretion in reducing counsel's hourly rate from $150 to

$90.    We have  held  that  a district  court,  in fixing  a

reasonable  fee  award,  is  not  bound  by  the hourly  rate

requested  by the  victor's  counsel; rather,  the court  may

establish  a  rate  that  it considers  reasonable  based  on

counsel's  skill and experience  and prevailing market rates.

See Metropolitan District Comm'n,  

847 F.2d at 19

; Wojtkowski
                                                             

v. Cade,  

725 F.2d 127, 131

 (1st  Cir. 1984).   The district
       

court noted that plaintiffs'  counsel had been practicing law

for only three years, and it stated that $75 to  $90 per hour

was the court's normal range for attorneys with this level of

experience.   The court awarded  counsel the high  end of the

range  to reflect  her  supervisory role  in the  litigation.

Plaintiffs have provided us with no basis for overturning the

court's judgment.  

     Only one  aspect of  the district court's  determination

gives us pause.  At the outset of its opinion, the court said

                    

     5The  lack of  contemporaneous records  did lead  to one
specific  disallowance,  but  not  of time  claimed  by  lead
counsel.    Plaintiffs  included  in   their  submission  the
affidavit and  bill of  a predecessor attorney,  which listed
only  a  description  of services  and  a  total amount  due.
Neither the  time expended in  total nor on  individual items
was included.  We  see no error whatever in  disallowing such
an undocumented claim.

                             -10-

that  the relief obtained by plaintiff on the Title VII claim

was "relatively  limited in  comparison to the  scope of  the

litigation  as a  whole."   Specifically, the  court observed

that  each plaintiff's  complaint  had sought  $1 million  in

compensatory  damages on their  unsuccessful state-law claim,

whereas  plaintiffs ultimately  received only  $1 in  nominal

damages (in the  case of appellant  Showalter) and $1,737  in

back pay (in  the case  of Phetosomphone).   Thus, the  court

noted,  "[t]he combined monetary  relief that  the plaintiffs

ultimately received was less than one-tenth of one percent of

what they originally sought."  

     We think that plaintiffs'  proportionate success on  the

Title  VII claim  vis-a-vis their failure  to prevail  on the

state-law  claim is  irrelevant.   Since  the district  court

eliminated from the award any compensation for hours spent on

the prosecution of the state-law claim, it would be illogical

to reduce further the award to reflect the lack of success of

that claim.  It is true that in a number of cases, the courts

have  stated that "the extent  of a plaintiff's  success is a

crucial factor in  determining the proper amount of  an award

of attorney's  fees . . .  ."  Hensley, 

461 U.S. at 440

; see
                                                             

also Foley,  

948 F.2d at 19

.   But we think  these statements
          

must  be understood  as referring  to the  degree of  overall

success  where  unsuccessful  claims  are  included  in   the
                                                   

                             -11-

calculation of the number of hours  for which compensation is

allowed.    

     Nevertheless,  we  do  not  believe  that  the  district

court's comparison of the  outcomes achieved by plaintiffs in

their  federal   and   state-law  claims   requires   further

proceedings.   The district court  expressed this view  in an

introductory  section  of its  opinion;  the  belief did  not

manifest itself in any particular reduction in the fee award,

and  the specific reductions in the award were based upon the

legitimate disallowance of hours.  If  the comment played any

role,  it  was   as  a  general  predicate  to   the  court's

permissible decision to disallow  or discount hours not shown

to be related to the successful claim.    

                             III.

     Finally,  plaintiffs  contend that  the  court  erred by

disallowing  its request for costs  other than $240 in filing

fees. This argument need not detain us long.

     The award of costs to the prevailing party, like the fee

award,  is a  creature of  statute.   Fed. R.  Civ.  P. 54(d)

states that "costs shall be allowed as a  matter of course to

the prevailing party unless the Court otherwise directs . . .

."6   Allowable costs are listed  in 28 U.S.C    1920; and 28

                    

     6Although appellants' brief suggests  that costs may  be
imposed  directly under section 2000e-5(k), "[s]ection 2000e-
5(k)  does not alter the  standard by which  the court awards
costs that are  not attorneys' fees pursuant to  Rule 54(d)."
Myrick v.  TNT Overland  Express, 

143 F.R.D. 126, 128

  (N.D.
                                

                             -12-

U.S.C.   1924 provides  that "the party claiming any  item of

cost or disbursement shall  attach thereto an affidavit, made

by himself  or his duly  authorized attorney or  agent having

knowledge of the  facts, that  such item is  correct and  has

been necessarily incurred  in the case and  that the services

for  which   fees  have   been  charged  were   actually  and

necessarily performed."  A  "bill of costs" form (AO  133) is

made available  to  the prevailing  party  by the  court;  in

addition to  providing a worksheet to itemize costs, the form

also provides a built-in declaration tracking the language of

the statute.

     In this  case, plaintiffs  neglected to  file a  bill of

costs form or to supply any other verification that the costs

claimed were "necessarily incurred in  the case" and that the

services for which compensation was sought were "actually and

necessarily  performed."  Rather,  the affidavit submitted by

plaintiffs stated only that the  costs were expended "in  the

preparation  and  litigation of  this  case,"  which, as  the

district  court  noted,  is  a  broader  and  more  inclusive

standard.   The  court therefore  disallowed all  costs other

than  $240, which  represented  the filing  fees  in the  two

cases;  these were the only costs which, in the court's view,

                    

Ohio  1992); accord, Goostree v. Tennessee, 

796 F.2d 854, 864

                                          
(6th Cir. 1986), cert. denied, 

480 U.S. 918

 (1987).
                             

                             -13-

could  safely  be  assumed   on  their  face  to   have  been

"necessarily incurred."  

     The district court could permissibly have concluded that

certain other  expenses, such as the cost  of the depositions

of the individual  defendants and the cost  of an interpreter

for plaintiff Phetosomphone, were  "necessary" on their face,

but we  do not believe that  the court was obliged  to do so.

At  the fee  hearing, the  district judge  warned plaintiffs'

counsel that  the initial costs  submission was not  a proper

bill of costs  and afforded additional  time for filing,  but

the response was the  affidavit already described.  Preparing

a technically  adequate application for costs was plaintiffs'

responsibility, not  the court's; and it was  not a difficult

or  onerous responsibility,  given the  "bill of  costs" form

available from the clerk.  

                            * * *

     Congress has provided for attorneys' fee awards in Title

VII  cases.  It is important that the public policy reflected

in  the statute not be  undone by requirements  of proof that

are  overly stringent or  by too grudging  a test  of what is

reasonable.  At the same time, such fee awards are peculiarly

within the expertise and discretion of the district judge.  

     It is often difficult to  strike the proper note in
     fee-setting matters, to balance the need adequately
     to compensate  successful counsel against  the need
     to  burden unsuccessful  defendants fairly,  but no
     more.  The district  court--which, as in this case,
     has frequently lived  with the  litigation and  the

                             -14-

     lawyers  for  long period  of  time,  and which  is
     likely to be more  familiar with the  marketplace--
     has the best coign of vantage.  

Metropolitan  Dist. Comm'n, 

847 F.2d at 20

.   Here the trial
                          

judge  provided  an unusually  detailed  explanation for  the

reduction  in the fees and  costs sought by  plaintiffs.  The

court's  conclusions are  untainted by  legal error  and fall

within  the  realm  of   reasonableness.    Accordingly,  the

district court's judgment is affirmed.
                                     

                             -15-

          ALDRICH, Senior Circuit Judge, dissenting.  I quite
                                       

agree with  much  of  the  court's  opinion.    Certainly  an

attorney fees  determination should not be  a second lawsuit,

and  a  court's finding  of  the number  of  hours reasonably

spent, and of appropriate hourly rates in part based on first

hand appraisal of counsel's ability, should not be reviewable

except  for  special reason.    Nor  can  I  sympathize  with

plaintiffs'  unexplained and  persistent disregard  of formal

methodology  rules.   I  am much  troubled,  however, by  the

district court's approach to a primary issue in the case, the

time  devoted to  the state  claim that  would not  have been

spent  had that  issue not  been included.   The  federal and

state cases were not separate, but were totally related, even

with, as  defendant concedes, identical witnesses.   The only

difference  was that federal recovery, at  that time, did not

include compensatory damages.   Even here there was a special

connection in that plaintiffs were obliged to  show, even for

the  federal count,  that their own,  conceded participation,

was unenjoyable and involuntary.  In this circumstance, total

disregard of hours charged for such items as conferences with

clients;   contacts   with   counsel  for   defendants,   and

preparation for,  and taking  of the deposition  of defendant

Smith,  the principal  harasser, on  the ground  that counsel

                             -15-

cannot   allocate  and  subtract,  imposes  an  extraordinary

burden.

          As my  brothers say,  this might be  an appropriate

occasion to adopt the suggestion in Hensley v. Eckerhart, 

461 U.S. 424, 436-37

 (1983), where  the Court said, "The district

court  may attempt to identify specific  hours that should be

eliminated,  or it may simply reduce the award to account for

the  limited success."  That,  however, brings me  to my real

difficulty, the district court's finding that this was a case

where the relief obtained was "truly limited in comparison to

the  scope of the litigation as a whole," citing Hensley, 

461 U.S. at 440

.   In terms, counsel "won on  one minor claim for

each plaintiff."

          In  Riverside  v.  Rivera, 

477 U.S. 561, 574-576

                                   

(1986), the Court said,

          Unlike  most  private  tort litigants,  a
          civil rights plaintiff seeks to vindicate
          important civil and constitutional rights
          that  cannot be valued solely in monetary
          terms. . . .

               Because   damages   awards  do   not
          reflect fully the public benefit advanced
          by civil rights litigation,  Congress did
          not  intend  for  fees  in  civil  rights
          cases, unlike most  private law cases, to
          depend on  obtaining substantial monetary
          relief. . . .

               Thus,   Congress   recognized   that
          reasonable  attorney's fees  under   1988
          are not conditioned upon and need not  be
          proportionate  to  an   award  of   money
          damages.

                             -16-

Plaintiffs had achieved the  maximum possible recovery on the

federal claims, including an order against defendant employer

to  improve its  internal procedures  with respect  to sexual

harassment.  By its  dwelling at length on the  state dollars

sought   and,  though   not  applying   them  mathematically,

concluding the federal claim "minor" I cannot but  think that

the district court greatly  depreciated the Civil Rights Act,

seriously   impairing   its  discretion.     I   would  favor

reconsideration.

                             -17-