Gay Officers Action League v. Puerto Rico

United States Court of Appeals
For the First Circuit

No. 00-1983

GAY OFFICERS ACTION LEAGUE ET AL.,

Plaintiffs, Appellees,

v.

COMMONWEALTH OF PUERTO RICO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Héctor M. Laffitte, U.S. District Judge]

Before

Torruella, Chief Judge,

Coffin, Senior Circuit Judge,

and Selya, Circuit Judge.

Russell A. Del Toro, with whom Camelia Fernández-Romeu and
Del Toro & Santana were on brief, for appellant.
Suzanne B. Goldberg, with whom Judith Berkan, Berkan/Mendez,
Ruth E. Harlow, Lambda Legal Defense and Education Fund, and
Colleen M. Meenan were on brief, for appellees.

April 23, 2001
 SELYA, Circuit Judge. In this bitterly-fought civil

rights case, the district court awarded substantial attorneys'

fees and ancillary expenses to a consortium of plaintiffs — the

Gay Officers Action League (GOAL), Carroll Hunter, Thomas Jeans,

and Dr. Rosalina Ramos Padró (collectively, the plaintiffs)1 —

against the Commonwealth of Puerto Rico. The Commonwealth

appeals. Concluding, as we do, that the district court acted

within its discretion in determining that the plaintiffs were

prevailing parties with respect to a discrete claim in the

underlying litigation, we affirm the finding that they were

entitled to a fee award. Withal, we reduce the amount by nearly

$40,000.

I. BACKGROUND

On June 19, 1995, the plaintiffs sued the Commonwealth

for damages and equitable relief.2 Invoking 42 U.S.C. § 1983,

they alleged, inter alia, that the Commonwealth violated their

1GOAL is a nonprofit organization comprising police officers
dedicated to protecting the rights of gays and lesbians. Hunter
and Jeans are members of GOAL and, at the times relevant hereto,
were GOAL's principal officers. Ramos Padró is a lesbian
activist resident in Puerto Rico.
2
The plaintiffs named the superintendent and several members
of the Puerto Rico Police Department (PRPD) as additional
defendants. Since the presence of these defendants is of
marginal relevance for purposes of this appeal, we treat the
Commonwealth as if it were the sole defendant.

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constitutional rights by (1) forbidding them from participating

in an impromptu rally, (2) subjecting them to excessive force,

(3) conducting an unlawful search of a gay bar, and (4)

illegally videotaping a "Gay Pride" parade. Following a year of

procedural wrangling and increasingly acrimonious discovery

disputes, the plaintiffs amended their complaint to include,

among other things, a claim that Regulation 29 — a police

department regulation which made "associat[ing] with . . .

homosexuals" violative of the code of conduct and exposed

violators to official discipline — impugned the plaintiffs'

First Amendment rights.

In due course, the district court (a) granted summary

judgment in the Commonwealth's favor as to all claims anent the

rally, the use of force, the search, and the videotaping; (b)

left for trial certain (subsequently settled) claims against

individual officers; and (c) entered a judgment declaring

Regulation 29 unconstitutional. The last ruling is the focal

point of this appeal.

The Commonwealth did not take the court's repudiation

of Regulation 29 lightly. It filed a detailed motion to alter

or amend the judgment. The district court stood firm. At that

point, the Commonwealth, instead of throwing in the towel,

decided to rewrite Regulation 29. The revised regulation no

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longer singled out homosexuals in haec verba, but, rather, paved

the way for disciplinary action against officers who "relate to

or associate with persons of dubious reputation" (a group

defined to include "anyone who engages in conduct that departs

from the community's moral standards").

After the parties filed extensive briefs, the court

rejected the revised regulation as an exercise in "crafty

drafting" and a thinly-veiled effort to do by indirection what

the court had prohibited the PRPD from doing directly. To

insure against any future evasions, the court permanently

enjoined the Commonwealth from punishing any police officer for

associating with homosexuals.

Still unrepentant, the Commonwealth moved to vacate the

injunction. After briefing and argument, the court demurred.

This resolved the matter, as the Commonwealth chose not to

appeal. The district court's decision on the merits thus

ripened into a final judgment.

The plaintiffs thereafter petitioned for $209,122.67

in attorneys' fees and $21,294.92 in expenses. They accompanied

the application with their attorneys' sworn statements,

information concerning the attorneys' credentials, and a

recasted version of the attorneys' contemporaneous billing

records (which separated the work related to the extirpation of

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Regulation 29 from other work performed). The Commonwealth

filed an opposition.

Taking up the question, the district court first ruled

that the plaintiffs were prevailing parties. It next

scrutinized each attorney's hours and, notwithstanding the

lawyers' assurances that they had eliminated all time spent on

unrelated issues, subtracted some additional hours. The court

then adjusted the attorneys' customary billing rates to reflect

local stipends for comparably qualified counsel and trimmed (or

in some instances disallowed) various expense items. When all

was said and done, the court determined that the plaintiffs

deserved legal fees in the amount of $202,733.86, allocated as

follows:

1. Attorney Judith Berkan — 93.1325 hours at $240 per

hour and 1.112 hours at $265 per hour, for a total of

$22,646.48.

2. Attorney Suzanne B. Goldberg — 416.75 hours at $240

per hour, for a total of $100,020.

3. Attorney Ruth E. Harlow — 123.45 hours at $240 per

hour, for a total of $29,628.

4. Attorney Colleen M. Meenan — 224.175 hours at $225

per hour, for a total of $50,439.38.

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The court also awarded the plaintiffs a total of $13,787.40 in

expenses. This appeal followed.

We divide our ensuing discussion into three segments,

one dealing with the standard of appellate review, the second

with the plaintiffs' eligibility for a fee award, and the third

with the dollars involved.

II. THE STANDARD OF REVIEW

In appeals involving the Fees Act, 42 U.S.C. § 1988,

a reviewing court customarily defers to the trial judge, whose

intimate knowledge of the nuances of the underlying case

uniquely positions him to construct a condign award. See Coutin

v. Young & Rubicam, Inc., 124 F.3d 331, 336 (1st Cir. 1997);

Lipsett v. Blanco, 975 F.2d 934, 937 (1st Cir. 1992).

Accordingly, our review here is for manifest abuse of

discretion. E.g., Foley v. City of Lowell, 948 F.2d 10, 18 (1st

Cir. 1991). Apart from mistakes of law — which always

constitute abuses of a court's discretion, see United States v.

Snyder, 136 F.3d 65, 67 (1st Cir. 1998) — 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.

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See Foster v. Mydas Assoc., Inc., 943 F.2d 139, 143 (1st Cir.

1991).

III. THE FACT OF THE AWARD

The Commonwealth's attack on the fact of the award

hinges on its contention that the plaintiffs were not prevailing

parties in the underlying litigation (and, thus, not entitled to

recoup fees and expenses at all). The district court rejected

this contention, and so do we.

Under the so-called "American Rule," litigants

generally pay their own way. Alyeska Pipeline Serv. Co. v.

Wilderness Soc'y, 421 U.S. 240, 247 (1975). Sometimes, however,

Congress provides otherwise. The Fees Act, 42 U.S.C. § 1988,

constitutes such a proviso. In regard to cases brought under

the Civil Rights Act of 1871, 42 U.S.C. § 1983, the Fees Act

states in pertinent part that "the court, in its discretion, may

allow the prevailing party, other than the United States, a

reasonable attorney's fee as part of the costs." 42 U.S.C. §

1988(b). Although this fee-shifting provision is couched in

permissive terminology, awards in favor of prevailing civil

rights plaintiffs are virtually obligatory. See Stanton v. S.

Berkshire Reg'l Sch. Dist., 197 F.3d 574, 576 (1st Cir. 1999)

(explaining that the Supreme Court has interpreted section 1988

to require fees in favor of prevailing civil rights plaintiffs

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"save for rare cases"); Casa Marie Hogar Geriatrico, Inc. v.

Rivera-Santos, 38 F.3d 615, 618 (1st Cir. 1994) (noting that

prevailing civil rights plaintiffs are presumptively entitled to

fee awards); see also Blanchard v. Bergeron, 489 U.S. 87, 89 n.1

(1989). The threshold question, then, is whether the plaintiffs

are prevailing parties within the purview of the Fees Act.

Typically, achieving prevailing party status requires

a plaintiff to show that he succeeded on an important issue in

the case, thereby gaining at least some of the benefit he sought

in bringing suit. Hensley v. Eckerhart, 461 U.S. 424, 433

(1983); Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir.

1978). Put another way, "a plaintiff 'prevails' when actual

relief on the merits of his claim materially alters the legal

relationship between the parties by modifying the defendant's

behavior in a way that directly benefits the plaintiff." Farrar

v. Hobby, 506 U.S. 103, 111-12 (1992); accord Tex. State

Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791-

92 (1989).

In this case, the plaintiffs "prevailed" in the sense

that they secured declaratory and injunctive relief in their

facial challenge to the constitutionality of Regulation 29. But

obtaining equitable relief does not automatically confer

prevailing party status for purposes of the Fees Act. See Tex.

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State Teachers, 489 U.S. at 792-93; Rhodes v. Stewart, 488 U.S.

1, 3-4 (1988) (per curiam). An inquiring court always must make

a qualitative inquiry into the import of the relief obtained,

and the Commonwealth posits that the relief obtained here was so

trivial that the plaintiffs cannot be deemed prevailing parties.

Insofar as this argument attempts to bundle the

plaintiffs' Regulation 29 claim with their other (generally

unsuccessful) claims, it lacks force. "[T]he degree of the

plaintiff's success in relation to the other goals of the

lawsuit is a factor critical to the determination of the size of

a reasonable fee, not to eligibility for a fee award at all."

Tex. State Teachers, 489 U.S. at 790 (emphasis omitted). Since

the plaintiffs' effort to nullify Regulation 29 constituted a

discrete claim within a larger case, our focus must not be on

who won more claims, but on how the parties fared with respect

to the Regulation 29 claim. If the plaintiffs' success on that

discrete claim represented a meaningful victory, they are

prevailing parties. Id. at 789-92; Hensley, 461 U.S. at 434-35.

If, however, the plaintiffs' success on that claim was "purely

technical or de minimis," a court would be well within its

rights to deny prevailing party status. Tex. State Teachers,

489 U.S. at 792 (dictum). "Of itself, the moral satisfaction

that results from any favorable statement of law cannot bestow

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prevailing party status." Farrar, 506 U.S. at 112 (citation and

internal quotation marks omitted).

Turning to this analysis, the Commonwealth asseverates

that the plaintiffs are not prevailing parties with respect to

their Regulation 29 claim because the regulation was an

anachronism which the PRPD never enforced and, in fact, had

intended to scrap long before the plaintiffs sought a judicial

anodyne. This asseveration rests on the premise that winning an

injunction against the enforcement of a moribund statute or

regulation ordinarily is not enough to transform a plaintiff

into a prevailing party. See id. We agree with that premise as

an abstract statement of the law, but it has no application here

for at least two reasons.

First, the PRPD never publicly repudiated the

regulation before the plaintiffs challenged it, and the record

contains evidence, credited by the district court, of its

chilling effect on First Amendment rights.3 Thus, even if the

PRPD harbored an unexpressed intention not to enforce Regulation

29, neither gay officers nor gay civilians who wished to

associate with police officers would have had any way to know of

that intention. By convincing the court to strike the

3
For example, GOAL members testified that they felt obliged
to arrange clandestine meetings with gay PRPD officers out of
concern for the officers' careers.

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regulation down, therefore, the plaintiffs at the very least

dispelled a pall that burdened associational rights. Cf. NAACP

v. Ala. ex rel. Patterson, 357 U.S. 449, 461-62 (1958)

(discussing government activity that unconstitutionally

discouraged individuals or groups from exercising freedom of

association). Viewed from that perspective, the plaintiffs'

decision to litigate the validity of Regulation 29, and the

results that they obtained in that endeavor, accomplished

something worthwhile.

Second — and perhaps more salient — the record does not

support the Commonwealth's self-serving protestation that, even

before the plaintiffs sued, Regulation 29 was a dead letter.

From the moment that the plaintiffs called the constitutionality

of Regulation 29 into question, the Commonwealth vigorously

defended it. Instead of disowning the regulation or announcing

that it had outlived its usefulness, the Commonwealth stridently

opposed the plaintiffs' motion for summary judgment. When the

court deemed the regulation unconstitutional, the Commonwealth

did not acquiesce, but, rather, fought tooth and nail to reverse

that decision. Even after the court declined to alter or amend

the declaration of invalidity, the Commonwealth refused to

abandon the regulation, preferring to tinker with its text in a

benighted attempt to evade the thrust of the court's ruling.

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 It is trite, but true, that actions often speak louder

than words. So it is here. The Commonwealth's course of

conduct convincingly contradicts its current claim that

Regulation 29 was an anachronism which the PRPD long had

intended to rescind.

To sum up, the question of whether or not obtaining

equitable relief is sufficiently meaningful to warrant

prevailing party status is case-specific. In this instance, the

record amply supports the district court's finding that

Regulation 29 was extant when the plaintiffs took up the cudgels

against it. Consequently, striking the regulation down achieved

one of the plaintiffs' preeminent goals.

If more were needed — and we do not believe that it is

— the Fees Act was intended to encourage citizens to vindicate

rights that concern the public as a whole. See City of

Riverside v. Rivera, 477 U.S. 561, 574-75 (1986). This suit is

a paradigmatic example of the kind of case that Congress had in

mind when it enacted section 1988. See Aubin v. Fudala, 782

F.2d 287, 290-91 (1st Cir. 1986) (explaining that declaratory

judgments can further the policies behind the Fees Act). The

court's declaration that Regulation 29 was unconstitutional

clearly benefitted both the plaintiffs and the public as a

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whole. Writing off the plaintiffs' victory as de minimis would

ignore that reality.

We will not paint the lily. While many of the

plaintiffs' other claims failed, the nisi prius court

conclusively determined that Regulation 29 violated their First

Amendment rights. That decision settled a significant issue

whose resolution benefitted the plaintiffs and the public.

Given this predicate, the district court did not abuse its

discretion in concluding that the plaintiffs were prevailing

parties for purposes of the discrete Regulation 29 claim. A fee

award therefore was due.

IV. THE AMOUNT OF THE AWARD

The second wave of the Commonwealth's offensive targets

the amount of the fee award.4 Even if the plaintiffs are

prevailing parties, the Commonwealth says, the award should be

reduced because, among other things, it is disproportionately

large; the plaintiffs failed to produce adequate records

documenting their attorneys' time; the case was staffed too

densely; and the court was overly generous in its treatment of

4
On appeal, the Commonwealth does not challenge the expenses
awarded by the district court. Consequently, we deem any such
challenge waived. See United States v. Zannino, 895 F.2d 1, 17
(1st Cir. 1990).

-13-
overlapping issues. We turn first to the anatomy of the award,

and then examine the Commonwealth's contentions.

A. The Anatomy of the Award.

Under most federal fee-shifting statutes, including the

Fees Act, the trial judge must determine "the number of hours

reasonably expended on the litigation multiplied by a reasonable

hourly rate." Hensley, 461 U.S. at 433. In implementing this

lodestar approach, the judge calculates the time counsel spent

on the case, subtracts duplicative, unproductive, or excessive

hours, and then applies prevailing rates in the community

(taking into account the qualifications, experience, and

specialized competence of the attorneys involved). Lipsett, 975

F.2d at 937; United States v. Metro. Dist. Comm'n, 847 F.2d 12,

15-17 (1st Cir. 1988); Grendel's Den, Inc. v. Larkin, 749 F.2d

945, 950-51 (1st Cir. 1984).

In fashioning fee awards, the attorneys'

contemporaneous billing records constitute the usual starting

point, but the court's discretion is by no means shackled by

those records. For example, it is the court's prerogative

(indeed, its duty) to winnow out excessive hours, time spent

tilting at windmills, and the like. Coutin, 124 F.3d at 337.

By the same token, the court may take guidance from, but is not

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bound by, an attorney's standard billing rate. See Brewster v.

Dukakis, 3 F.3d 488, 492-93 (1st Cir. 1993).

Chief Judge Laffitte followed this procedure. He

started with the time compilations submitted by the plaintiffs'

lawyers. Despite the attorneys' representations that the

compilations only included time spent in connection with their

efforts to prove the infirmity of Regulation 29, the court

sharply reduced the number of hours claimed for researching this

issue prior to June 19, 1995 (the date on which the plaintiffs

filed the original complaint that contained no mention of

Regulation 29).5 Turning to the other side of the grid, the

court ratcheted some of the billing rates downward to correspond

more closely with local standards. See Adcock-Ladd v. Sec'y of

Treas., 227 F.3d 343, 350 (6th Cir. 2000) (holding that

reasonable hourly rates should be set by reference to rates in

the court's vicinage rather than in the lawyer's region of

origin). The court then multiplied the adjusted hours by the

adjusted rates to ascertain fees attributable to the work of

5 The court did, however, find that the work done by the
attorneys on standing was interconnected with the Regulation 29
issue, and included the time spent researching that issue. The
Commonwealth does not seriously challenge this finding and, in
all events, the finding seems unassailable. See Aubin, 782 F.2d
at 291 (explaining that plaintiffs are entitled not only to fees
for work done on winning claims but also for work done on other
claims involving "a common core of facts" or "related legal
theories") (quoting Hensley, 461 U.S. at 435).

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each of the four attorneys, aggregating those four figures to

arrive at the amount of the award.

B. The Commonwealth's Rejoinder.

We address the Commonwealth's main arguments seriatim.

Its other points are insufficiently developed, patently wrong,

or both. We reject them without editorial comment.

1. Proportionality. We need not tarry over the

Commonwealth's assertion that the award is disproportionate to

the degree of the plaintiffs' success. While degree of success

is critical in determining the amount of a fee award, Tex. State

Teachers, 489 U.S. at 790, proportionality is no longer an issue

once the prevailing party has separated the wheat from the chaff

(i.e., isolated the time spent on her successful claim or

claims). See Hensley, 461 U.S. at 434-35. Because the

plaintiffs here have limited their fee petition to the solitary

claim on which they prevailed completely, proportionality is no

longer critical.6 See City of Riverside, 477 U.S. at 574. The

real question is to what extent the method of calculation, the

6This is not to say that proportionality may not, in some
circumstances, bear upon the amount of an award. E.g., Farrar,
506 U.S. at 113-16. Here, however, we already have determined
that the plaintiffs won a total and significant victory vis-à-
vis Regulation 29. See supra Part III. Proportionality is
therefore not a material issue at this stage of the case.

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claimed hours and rates, and the associated documentation

project a reasonable fee.

2. Time Records. The Commonwealth next complains that

the very basis of the lower court's calculation is faulty

because the plaintiffs neglected to produce contemporaneous time

records. Without drawing our attention to any specific

deficiencies in the records presented, the Commonwealth argues

that the lower court erroneously accepted "shorthand summary

compilations."

The facts are these. The plaintiffs provided the

district court with four accounts — one for each lawyer — that

synthesized, excerpted, and reproduced entries from the lawyers'

original time sheets. The plaintiffs followed this praxis in an

apparent effort both to segregate time spent on unsuccessful,

unrelated claims and to create a more intelligible format for

judicial consideration of their requests.

The district court welcomed these submissions and

elected not to require the plaintiffs to produce the original

time sheets. We discern no error. Our cases make clear that

prevailing parties who intend to seek counsel fee awards

ordinarily must ensure that contemporaneous time records are

kept in reasonable detail. E.g., Lipsett, 975 F.2d at 938;

Grendel's Den, 749 F.2d at 952. These precedents warn that

-17-
failure to do so may have deleterious consequences (such as the

slashing or disallowance of an award). Lipsett, 975 F.2d at

938; Grendel's Den, 749 F.2d at 952. Here, however, the

plaintiffs satisfied that obligation: each of the four

attorneys filed an affidavit attesting that she kept

contemporaneous time records. The fact that counsel, in helping

to prepare the fee application, transcribed the notations on

their time sheets verbatim and, for ease in reference,

incorporated the transcriptions in compilations, did not

compromise the integrity of their billing records. After all,

the compilations simplified matters and enabled the lower court

more easily to assess the merits of the parties' conflicting

contentions. If the Commonwealth doubted whether the

compilations faithfully tracked the time sheets, it could have

filed a discovery request for the original records. Having

eschewed that course, it cannot now be heard to complain that

the judge, who expressed satisfaction with the accuracy and

adequacy of the plaintiffs' proffer, did not demand to see the

raw data.

3. Overstaffing. The Commonwealth maintains that the

plaintiffs overstaffed the litigation, drawing on a battery of

lawyers when one would have sufficed. Such a claim brings

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certain general rules into play. We briefly rehearse those

rules.

On the one hand, awards under the Fees Act are not

intended "to serve as full employment or continuing education

programs for lawyers and paralegals." Lipsett, 975 F.2d at 938.

In that spirit, a court should not hesitate to discount hours if

it sees signs that a prevailing party has overstaffed a case.

See Hart v. Bourque, 798 F.2d 519, 523 (1st Cir. 1986). On the

other hand, courts must be careful not to throw out the baby

with the bath water. Given the complexity of modern litigation,

the deployment of multiple attorneys is sometimes an eminently

reasonable tactic. Consequently, the mere fact that more than

one lawyer toils on the same general task does not necessarily

constitute excessive staffing. Rodriguez-Hernandez v. Miranda-

Velez, 132 F.3d 848, 860 (1st Cir. 1998). Effective preparation

and presentation of a case often involve the kind of

collaboration that only occurs when several attorneys are

working on a single issue. Id.

The Commonwealth argues that the central legal question

here — the constitutionality of Regulation 29 — was pedestrian,

and that the engagement of multiple counsel therefore was

unwarranted. But it is too much of a stretch to say that the

First Amendment issue here was, in the Commonwealth's pat

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phrase, "simple and straightforward." The Commonwealth's

conclusion seems particularly dubious when one factors into the

mix the ancillary issue of standing (a knotty problem, on these

facts). See supra note 5.

The ferocity of the Commonwealth's defense likewise

undermines its assertion that the plaintiffs did not need to

call up the reserves in order to litigate the Regulation 29

issue. Although the Commonwealth now claims that it never

particularly cared about the fate of the supposedly unused

regulation, it certainly did not display any such indifference

in the district court. To the contrary, it mounted a Stalingrad

defense of Regulation 29, battling from rock to rock and tree to

tree. After setting such a militant tone and forcing the

plaintiffs to respond in kind, it seems disingenuous for the

Commonwealth to castigate the plaintiffs for putting too many

troops into the field. Cf. City of Riverside, 477 U.S. at 581

n.11 ("The government cannot litigate tenaciously and then be

heard to complain about the time necessarily spent by the

plaintiff in response.") (citation and internal quotation marks

omitted).

Even so, we remain skeptical about the use of four

attorneys to litigate a single claim — particularly a claim that

did not necessitate a trial. Where tag teams of attorneys are

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involved, fee applications should be scrutinized with especial

care. Moreover, the level of scrutiny should increase in direct

proportion to the number of lawyers employed. Despite these

concerns, however, three things make us reluctant to interfere

with the trial court's considered judgment in the peculiar

circumstances of this case.

First, the trial judge had the best coign of vantage.

He was uniquely positioned to weigh the parties' staffing needs,

assess the reasonableness of their handling of the case, and

evaluate the quality and relevance of the services rendered.

Second, the judge explained his reasoning for allowing fees for

multiple attorneys in meticulous detail. Third, the attorneys'

proffer to the district court persuasively described their

division of responsibility and their need for teamwork.

Considering these and other factors, we conclude — although the

question is close — that the court below did not abuse its

discretion in determining that it was reasonable for the

plaintiffs to have entrusted the Regulation 29 claim to a

quartet of attorneys.

4. Overlapping Issues. When a plaintiff prevails on

some, but not all, of multiple claims, a fee reduction may be in

order. Hensley, 461 U.S. at 434-35; Coutin, 124 F.3d at 339-40.

In such a situation, the court must filter out the time spent on

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unsuccessful claims and award the prevailing party fees related

solely to time spent litigating the winning claim(s).7 Hensley,

461 U.S. at 435. On appeal, the Commonwealth assails the

district court's handling of the time spent by the various

attorneys on overlapping matters, i.e., issues involving both

Regulation 29 and other claims on which the plaintiffs did not

triumph. The Commonwealth's most powerful argument highlights

a patent inconsistency in the trial court's otherwise exemplary

rescript. We trace the origins of this inconsistency.

In this case, the plaintiffs, mindful of the Hensley

Court's directive that "[c]ounsel for the prevailing party

should make a good-faith effort to exclude from a fee request

hours that are excessive, redundant, or otherwise unnecessary,"

461 U.S. at 434, limited their application to time spent on

their one winning claim, allocating to that quest a portion of

the hours spent on overlapping matters. In scrutinizing the

plaintiffs' submissions, the district court noted the way in

which their attorneys had handled the vexing problem of how to

account for time spent on overlapping claims. The court

7Of course, a prevailing party sometimes can avoid this sort
of reconstructive surgery by a showing that the work done on
unsuccessful claims was inextricably intertwined with the work
done on successful claims. See Lipsett, 975 F.2d at 940-41;
Aubin, 782 F.2d at 291. Here, however, the plaintiffs do not
argue interconnectedness.

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commended the methodology employed, declared that twenty-five

percent of the overlapping time constituted a reasonable

allocation for the Regulation 29 claim, and proceeded to fashion

the fee award (with other changes, as described supra).

The fly in the ointment is that the court's

computations did not track its statements: while the court

awarded only twenty-five percent of the "overlapping" hours

spent by two of the attorneys (Berkan and Meenan), it

inadvertently awarded eighty percent of the "overlapping" time

spent by the other two lawyers (Harlow and Goldberg). Because

the court, to that extent, abandoned sub silentio its announced

twenty-five percent formula, we think that a correction should

be made.

We have several options at this point. We could, of

course, remand for a new calculation. E.g., Coutin, 124 F.3d at

342. But remand is not obligatory, e.g., Lipsett, 975 F.2d at

943, and the court below was clear as to what it intended.

Because the record is sufficiently explicit that we can perform

the necessary calculations and implement the district court's

stated plan, it would be wasteful to remand and invite a new

round of litigation. Cf. Hensley, 461 U.S. at 437 (warning

courts against turning fee applications into major satellite

litigation). Thus, we forgo a remand and reduce Harlow's and

-23-
Goldberg's hours to include only twenty-five percent of the time

spent by each of them on overlapping matters.

The majority of Harlow's allowed time — 116.5 hours —

fell into this category. She included eighty percent of this

time in her calculations. The district court adopted this

figure. We enforce the court's twenty-five percent limitation

by trimming that number from 93.2 hours to 29.125 hours. The

net effect of this reduction is to decrease the overall award in

regard to Harlow's services from $29,628 to $14,250.

We follow the same approach vis-à-vis Goldberg. She

spent 183.75 hours on overlapping matters, and included 147 of

those hours in her materials. The court adopted that figure.

We enforce the court's twenty-five percent limitation by

lowering that number to 45.9375 hours. The net effect of this

reduction is to shrink the overall award in regard to Goldberg's

services from $100,020 to $75,765.

V. CONCLUSION

To recapitulate, the district court labored over the

underlying litigation for nearly five years. At the fee-

shifting stage, the court issued a twenty-page opinion in which

it supportably determined that the plaintiffs had prevailed on

a significant aspect of their case. In the same opinion, the

court closely evaluated each attorney's submission under the

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appropriate legal standards. For the most part, the court's

reasoning is unimpugnable. We therefore affirm the award, save

only for a reduction to reflect accurately the court's sensible

(but not fully implemented) determination that the plaintiffs

should recover for no more than twenty-five percent of the time

that their attorneys spent on overlapping matters.

We need go no further. Although the fee award, even

as we have pared it, seems quite generous, its size is dictated

in large part by the tenacity with which the Commonwealth

defended Regulation 29. Cf. Galicians 6:7 (observing that

"whatsoever a man soweth, that shall he also reap"). Under the

circumstances, we scarcely can criticize the district court for

determining, in effect, that the plaintiffs were justified in

fighting fire with fire.

The fee award is reduced from $202,733.86 to

$163,100.86 and, as modified, the award is affirmed. The

expense award in the amount of $13,787.40 is likewise affirmed.

Interest shall accrue on these sums as provided by 28 U.S.C. §

1961. No fees or costs shall be awarded for services rendered

in connection with this appeal.

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