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

- 3 - Office. See Márquez-Marín v. Barr,

, 172

(D.P.R. 2020); Reyes Caparrós v. Barr, No. 15-2229,

, 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

- 4 - 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,

, 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.

- 5 - 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."

- 6 - 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),

(1st Cir. 2001). Of course, a

material error of law is perforce an abuse of discretion. See

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."

.

The Supreme Court has cautioned against "appellate

micromanagement" of fee awards. Fox v. Vice,

(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,

(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

- 7 - 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,

(1st Cir.

1988), and its determinations deserve "substantial deference,"

Fox,

.

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,

(1980) (quoting Christiansburg

Garment Co. v. EEOC,

(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,

(2010). Although

Perdue involved a different fee-shifting statute,

, the Court has made pellucid that its "case law construing

- 8 - what is a 'reasonable' fee applies uniformly to all" federal fee-

shifting statutes couched in similar language. City of Burlington

v. Dague,

(1992).

A common way of determining a reasonable fee is through

the lodestar method. See Perdue,

. We have

described this approach as "the method of choice for calculating

fee awards." Matalon v. Hynnes,

(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,

(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.,

(1st Cir. 2014) (quoting Hensley,

). 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."

Multiplying the results of the first two steps

yields the lodestar amount. See

The court may then elect to

adjust the lodestar amount, either upward or downward, if the

- 9 - specific circumstances of the case warrant such an adjustment.

See Coutin v. Young & Rubicam P.R., Inc.,

, 337 & n.3

(1st Cir. 1997) (stating that court may adjust lodestar amount in

accordance with twelve factors); see also Perdue,

(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,

. 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,

. 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."

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

- 10 - 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,

(D. Mass. 2010) and Osorio v.

Municipality of Loiza, No. 13-1352,

(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,

; accord Osorio,

, 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

- 11 - rights cases, Congress wanted a prevailing plaintiff's attorney to

be compensated "for all time reasonably expended on a matter."

Blanchard v. Bergeron,

(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,

(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,

, at *4 (D.D.C.

Apr. 20, 2021) (citing cases); Estiverne v. Esernio-Jenssen,

(E.D.N.Y. 2012); Trainor v. HEI Hosp. LLC,

No. 09-10349,

, at *10 (D. Mass. Jan. 13, 2012),

aff'd in part, vacated in part on other grounds,

(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,

— the Third Circuit included "settlement negotiations"

among the classes of compensable work.

, 167 (3d Cir.

1973).

- 12 - To be sure, fee-shifting statutes should not be read to

"darken prospects for settlement." Evans v. Jeff D.,

(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."

. Although Evans referred to a distinct statute,

, the Court's reasoning applies four-square to Title VII's analogous fee- shifting provision. See Indep. Fed'n of Flight Attendants v. Zipes,

, 758 n.2 (1989).

- 13 - 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."

(10th Cir. 2014) (internal

- 14 - quotations omitted) (quoting Pennsylvania v. Del. Valley Citizens'

Council for Clean Air (Delaware Valley),

(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,

(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,

,

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,

. 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.,

(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,

(quoting Webb v.

Bd. of Educ.,

(1985)); see Hutchinson ex rel.

Julien v. Patrick,

(1st Cir. 2011). This standard

controls even when that work implicates some other case. See

Schneider v. Colegio de Abogados de P.R.,

, 32-33 (1st

Cir. 1999) (per curiam) (applying the "useful and of a type

- 15 - 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

, see Webb,

,

the Clean Air Act, see Delaware Valley,

, 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.,

(2014). And we have

followed suit in a case under the Americans with Disabilities Act.

See Hutchinson,

. 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,

(5th Cir. 2002); Bobbitt v. Paramount Cap Mfg. Co.,

(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,

. 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

- 16 - 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,

(9th Cir. 2003) (quoting Hasbrouck v.

Texaco, Inc.,

(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,

(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,

(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.

- 17 - 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",

(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,

(1st Cir. 1990).

- 18 - prevailing market rate for counsel of comparable skill."

Hutchinson,

. "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."

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

and concluding that $315 per hour was "in line with

sophisticated federal litigators who handle complex issues");

Reyes Cañada v. Rey Hernandez,

(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

- 19 - 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,

, 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.,

(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,

; Metro. Dist. Comm'n,

. 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

- 20 - measure a particular attorney's level of skill and diligence at

first hand. See Matalon,

; Torres-Rivera v.

O'Neill-Cancel,

(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,

, 895 n.11 (1984); see Bordanaro v. McLeod,

(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,

. 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

- 21 - 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

(b). Consequently, Judge Smith — though a visitor — possessed

the full panoply of judicial powers needed for adjudication of the

litigation. See

§ 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,

(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,

, 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,

, 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.,

, 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

. 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.,

(1st Cir.

1992) ("If any principle is settled in this circuit, it is that,

absent the most extraordinary circumstances, legal theories not

- 23 - raised squarely in the lower court cannot be broached for the first

time on appeal."); McCoy v. Mass. Inst. of Tech.,

(1st Cir. 1991); United States v. Zannino,

(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,

(quoting

Brewster v. Dukakis,

, 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.

- 24 - 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,

(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,

, 308

(1st Cir. 1998) (quoting Lipsett,

). Although this

is not a "hard-and-fast rule[]," Matalon,

, 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

- 25 - adopting the core/non-core distinction to compensate less

demanding work at a lower rate. See Lilly v. City of New York,

(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,

. 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

- 26 - 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,

(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,

(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."

- 27 - 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,

. This winnowing is committed to

the district court's informed judgment. See One Star,

(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

- 28 - 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,

. 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.,

(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."

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."

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,

.

- 29 - 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,

. Instead, "the court may either discount or disallow those

hours."

"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."

. 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]."

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,

, 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-

- 30 - 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,

(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.");

(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.

- 31 - 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,

, *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,

- 32 - e.g., Lucky Brand Dungarees, Inc. v. Ally Apparel Res., LLC, No.

05-6757,

, 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,

(4th Cir. 2013) (stating

"that the practice of quarter-hour billing may lead to

overbilling"); Lucky Brand Dungarees,

, 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

- 33 - 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,

(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,

(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

- 34 - 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,

. As long as that court

"calls the game by the right rules,"

it is "uniquely situated

to determine whether . . . lawyers wasted their time," One Star,

. 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.,

; Grendel's

Den,

. In effecting such a reduction, though, the

- 35 - court must make "reasonably explicit findings" and "spell out the

whys and wherefores." Coutin,

(quoting Brewster,

). 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,

.

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,

- 36 - 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.

- 37 -