USCA1 Opinion

May 3, 1996

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 94-1202

JOSEPH F. CONSOLO,

Plaintiff - Appellee,

v.

DANIEL F. GEORGE, ET AL.,

Defendants - Appellants.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

___________________
[Hon. Mark L. Wolf, U.S. District Judge]
___________________

____________________

Before

Boudin, Circuit Judge,

_____________

Aldrich, Senior Circuit Judge,

____________________

and Young,* District Judge.

______________

_____________________

Donald V. Rider, Jr.,

_____________________
David M. Moore, City
_______________

Assistant City Solicitor,

Solicitor, and

with whom

Diana H. Horan, Assistant

_______________

City Solicitor, were on brief for appellants.

Thomas C. Cameron, with whom Dennis J. Curran, and Curran &

__________________
________________
________
Cameron, were on brief for appellee.
_______

____________________

____________________

____________________

Of the District of Massachusetts, sitting by designation.

Per
Per

Curiam.
Curiam

Pursuant to

42 U.S.C.

1988(b) and 1st

___________

Cir. R. 39.2,

fees

Joseph F. Consolo ("Consolo")

incurred in defending

here seeks attorney

a jury verdict in

his favor both on

appeal and through a futile petition for certiorari.

BACKGROUND
BACKGROUND

A jury

awarded

Worcester police

Consolo

officers Daniel

Mulvey

("Mulvey")

George

and

for

damages

against

George ("George") and

Michael

violations of

Mulvey appealed

affirmed in all

$90,000

respects.

Consolo's

four issues

Consolo v.
_______

in

to

civil

this Court

George, 58 F.3d
______

rights.

and we

791 (1st

Cir.), cert. denied, 116 S. Ct. 520 (1995).

_____ ______

On

("Cameron")

behalf

and

of

Dennis

Consolo,

J.

Attorneys

Curran

Thomas

("Curran")

C. Cameron

filed

fee

application (the

fees

"Application") for

pursuant to

Consolo

also

42

U.S.C.

requested

an

award of appellate

1988(b).

award

of

In

the

expenses

paralegal Kenneth O'Sullivan ("O'Sullivan").

a supplemental

fee application (the

counsel

Application,

and

fees

for

Consolo also filed

"Supplemental Application")

for services related to opposing certiorari.

George and Mulvey's

Supplemental Application

the

objections to the

fall into six general

timeliness of Consolo's appeal;

Application and

categories:

(1)

(2) the adequacy of records

kept by Cameron and Curran regarding their fees and expenses; (3)

whether work

performed by Cameron

productive; (4)

and

Curran;

(5)

the reasonableness

whether

necessary and productive; and

work

and Curran was

necessary and

of rates charged

performed

by

by Cameron

O'Sullivan

was

(6) the reasonableness of expenses

charged by Cameron and Curran.

DISCUSSION
DISCUSSION

Traditionally,

costs.

litigants have

borne

their own

legal

See Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421

___ ___________________________
_________________

U.S. 240, 247 (1975).

Certain statutes and equitable

permit

this

departure from

tradition.

See
___

doctrines

In re Thirteen
________________

Appeals, 56 F.3d 295, 304-305

_______

Rights Attorney's

reasonable

Fees

Awards Act

attorney's fees

rights action.

(1st Cir. 1995).

42 U.S.C.

to

of

1976, courts

a prevailing

1988(b).

Under

party

the Civil

may

award

in a

civil

In authorizing such awards,

Congress intended to reduce the financial impediments that hinder

individuals from asserting their rights.

Furtado v.
_______

Bishop, 635
______

F.2d 915, 918-19 (1st Cir. 1980).

Courts

there

is a

grant attorney's

special reason

fees under

compelling denial.

Consumer's Union of the United States, Inc., 446

_____________________________________________

(1980).

Prevailing plaintiffs

defending an

may receive fees

appeal, if the plaintiff

1988(b) unless

Supreme Ct. v.
____________

U.S. 719, 737

for time spent

is ultimately successful.

See
___

Souza
_____

Parties

v. Southworth,
__________

may also

applications.

receive

Lund
____

564 F.2d

609,

613 (1st

fees for

time

spent litigating

v. Affleck,
_______

587 F.2d

75, 77-78

Cir. 1977).

fee

(1st Cir.

1978).

A.
A.

Timeliness of Consolo's Application

Timeliness of Consolo's Application
___________________________________

George

and

Mulvey

Supplemental Application,

object

to

the

claiming that both are

Application

and

untimely.

The

governing local rule regarding appellate fee applications states:

-3-

An application . . . for an award of fees

and other
with the

expenses . . .
clerk of

the court

within 30 days of
_______________
the

shall be filed

the date of

final circuit judgment . .

purposes of the 30-day limit,

shall not be
time for

of appeals
entry of
. .

a judgment

considered final until

filing an appeal or

For

the

a petition

for a writ of certiorari has expired,

judgment is entered by

or

the court of last

resort.

1st Cir. R. 39.2 (emphasis added).

Consolo filed the

Supreme Court

denied George

Application on August 8, 1995.

and Mulvey's

Certiorari on November 27, 1995.

Application on December 15, 1995.

Petition for

Consolo filed the

The

Writ of

Supplemental

1.
1.

Supplemental Fee Application

Supplemental Fee Application

George and

Supreme

Court

for

Mulvey note

rehearing up

certiorari.

Sup. Ct. R. 44.2.

George

Mulvey contend

and

that parties may

to

25

days

petition the

after denial

of

For purposes of 1st Cir. R. 39.2,

that final

judgment does

not occur

until this 25 day period ends.

However, "[t]he

pending disposition

of a

order of denial will

petition

order of the Court or a Justice."

Court

issued no

such order

delaying order, denial

in

for rehearing

Sup. Ct. R. 16.3.

the instant

of certiorari is

purposes of the local rule.

not be suspended

case.

except by

an

The Supreme

Without

final judgment for

the

After this final judgment, Consolo's

attorneys had 30 days to file an application for attorney's fees.

1st

Cir. R. 39.2.

December 15, 1995.

Consolo

met this

requirement by

filing on

Therefore, Consolo's Supplemental Application

-4-

is timely under 42 U.S.C.

2.
2.

Rule

fairness

by

1988(b) and 1st Cir. R. 39.2.

Fee Application
Fee Application

39.2

serves three

requiring

parties

purposes:

to

apply

(1) it

for

fees

promotes

within

reasonable

time

after

case's resolution;

(2)

it

advances

judicial efficiency by reducing of the number of fee applications

filed; and (3) it prevents this Court from issuing awards under

1988(b) inconsistent with subsequent decisions on the case.

George

filed

his

Application prematurely, and that the Court should deny both

the

Application

and

and

and

the

Mulvey argue that we

Mulvey

contend

Supplementary

Consolo

Application.2

should interpret 1st

applications filed before final

his Application

that

judgment.

George

Cir. R. 39.2 to

deny

Because Consolo filed

before the Supreme Court

denied certiorari, the

Application was most certainly premature.

Consolo's Supplemental

Application,

however,

amended

Thus, even though Consolo's

and

expanded

his

Application.

first application was premature, the

Supplemental Application incorporated

Since the Supplemental

39.2, we

and cured the Application.

Application is timely

must, therefore, examine

under 1st Cir.

the claims presented

R.

in both

the Application and Supplemental Application.

B.
B.

Reasonableness of Consolo's Applications

Reasonableness of Consolo's Applications

This Court has customarily thought it best to calculate

reasonable

fees

through

the

lodestar time

and

rate

method.

____________________

Paradoxically, George and Mulvey also argue in the alternative

that Consolo's

first application was

late, first

acknowledging

but then choosing to ignore the plain test of 1st Cir. R. 39.2.

-5-

Tennessee Gas Pipeline Co. v. 104 Acres of Land, 32 F.3d 632, 634
__________________________
_________________

(1st Cir.

308

(common fund cases).

reference

reasonably

Inc.
____

1994); but see In re Thirteen Appeals, 56 F.3d at 305___ ___ ______________________

reached

spent by a

v. Larkin,
______

Eckerhart,

461

presumptively

downward

by

749

The lodestar is

multiplying

U.S. 424,

for

950

but it

special

number

rate.

is

of

hours

Grendel's Den,
______________

(1984) (citing

433-34 [1983]).

reasonable fee,

adjustment

the total

reasonable hourly

F.2d 945,

a numerical point of

Hensly

The lodestar

subject to

circumstances.

v.

is a

upward or

Lipsett
_______

v.

Blanco,
______

975

F.2d

934, 937

(1st

Cir.

1992)

(citing Blum

v.

Stenson, 465 U.S. 886, 897 [1984]).

1.
1.

Adequacy of record keeping

Adequacy of record keeping

For

the Court

reasonable, applicants

their time

to determine

must provide

expenditures.

Inc., 984 F.2d 4, 7 (1st

____

749 F.2d

regarding

performed.

at

952).

the number

whether hours

billed are

highly detailed records

of

Phetosomphone v. Allison Reed Group,

_____________
____________________

Cir. 1993) (citing Grendel's Den, Inc.,

The

Court

of hours,

demands

dates, and

specific

information

the nature

of work

Deary v. City of Gloucester, 9 F.3d 191, 197-98 (1st

_____
___________________

Cir. 1993) (citing Calhoun v. Acme Cleveland Corp., 801 F.2d 558,

560

[1st Cir. 1986]).

Lack of contemporaneous records calls for

substantial

reduction

"extraordinary

demanded

in

denial

circumstances."

inclusion

of the

sheets or records in

Court

or

more easily

of

Id.
___

fee

awards,

While this

fee applications, their inclusion

the

in

Court has not

actual, contemporaneously

assessing

except

kept time

aids the

validity, necessity,

and

-6-

reasonableness of

hours billed.

Applicants fail

to supply such

records

at

their peril.

See
___

id.
___

(noting that

submission of

actual time slips allowed a trial court to deny 78 of 699.4 hours

requested).

Here,

Application

Consolo's

included

contemporaneously kept

Application and

original time

Application

affidavits

that

sheets.

Normally an

spent must be scrutinized with care.

749 F.2d

Supplemental

distilled

by Cameron, Curran, and

Supplemental Application

Grendel's Den, Inc.,

____________________

and

records

O'Sullivan.

did not

include their

attorney's account

of time

Calhoun, 801 F.2d at

_______

at 950.

Without

and

judgment

to

Here, we must

determine

if

Cameron

use

and

560;

original time

sheets, we hold an applicant's summary of hours spent to an

higher level of scrutiny.

The

even

our own experience

Curran's

billing

accurately reflects

time spent.

We

resolve inconsistencies and

ambiguities against the applicant.

Before calculating the

lodestar, we

issues of some concern to this Court.

the Application.

Enlarge Time to

On

July 19,

File Brief.

extended

the deadline

July 14,

1994

to July

to

two

The first issue relates to

1994, Curran

The Motion to

file Consolo's

21, 1994.

must address

In

filed a

Motion to

Enlarge would

have

Appellate Brief

from

that Motion

to Enlarge,

Curran represented that Consolo's attorneys needed the additional

time "to

proofread the

Brief, review transcript

reproduce trial exhibits for this appeal."

Motion to Enlarge Time

to File Brief at

-7-

references and

Plaintiff-Appellee's

2.

The Court granted

this

Motion on

July 21,

clerical tasks.

reimbursement

1994, so

counsel could

perform these

In the Application, Curran and Cameron requested

for

Some of the work

work performed

during this

additional week.

claimed during this period is

unrelated to the

limited, clerical tasks described in the Motion to Enlarge.3

Poor

resulted

in

record keeping

inaccurate

by

Cameron and

billing

during

Curran may

this

have

period.

Alternatively, Curran may have misrepresented the reasons for his

Motion

to

Enlarge Time.

In either

Court is

not

disposed to grant attorney's fees for these inconsistencies.

See
___

Brewster v. Dukakis, 3 F.3d 488, 494

________
_______

case,

the

n.6 (1st Cir. 1993) (noting

that courts can and should deny recovery for such "sloppy" record

keeping).

Unfortunately,

adequately distinguish

under the

Consolo's

application

did

not

between time spent on clerical (permitted

Motion to Enlarge)

and non-clerical tasks.4

Because

____________________

Work

that falls outside of

Consolo's Motion to Enlarge

Time

includes:

July 15, 1994

"[B]egin drafting Statement of Facts."

July 18, 1994

"Revise Statement of Facts."

July 19, 1994

"[R]evise Statement of Facts for Brief."

This

is

the

source

of

much

difficulty

concerning

the

Application

and

Supplemental Application.

Cameron

and Curran

provided the number of hours spent on Consolo's case per day, and

roughly the subject matter or task on which they spent this time.

While they did divide the number of hours spent by attorney, they
did not divide the number of

hours by task.

For example, Curran

claims he spent 5.05 hours on July 14, 1994, "continu[ing] review

of

ten volumes of trial transcript to prepare [the] Statement of

Facts

for

Clerk's

Office and

Court to
volumes

Brief;

guess
and

Applicants

[and

with [defense

how much

how
should

in] telephone

much

time
was

consider

conferences

counsel]."

Curran spent
spent
detail

conscientious and accurate reporting.

-8-

in

[the]

This forces
in review

telephone

almost

with

as

of

the

the

conferences.
important

as

we

are

unable

to

distinguish

these

performed inconsistent with the Motion

denial of

Curran's

award

for that

day.

of

periods,

the lodestar.

any work

to Enlarge will result in

Thus, we

application for 10.3 hours

our calculation

time

will

on July 15

not

consider

and 19, 1994 in

Similarly, we

will

ignore

Cameron's application for 1.3 hours on July 18, 1994.

The

second

Application; it

contains

those discussed above.

one

hour making

issue

relates

for

Application.

his

He also

Supplemental

inaccuracies

Under oath, Curran stated that

revisions to

own

the

disturbingly similar

the Supplemental

supporting materials drafted by Cameron.

__________________

hours

to

work

spent

to

as

he spent

Application and

Yet, Curran requests .9

draft

claims a separate .8

the

Supplemental

hours to revise

the

Supplemental

Application.

accuracy, honesty,

1988(b).

demand

the

inaccurate

will deny

any section of

statements;

we

applications that are knowingly incorrect.

from

calculation

strictest level

of

and good faith in applications for fees under

The Court

containing

We

of

the

lodestar

in

will

an application

similarly

deny

Thus we deny .9 hours

Consolo's

Supplemental

Application.

2.
2.

Necessity of work performed by Consolo's attorneys

Necessity of work performed by Consolo's attorneys

Defendants strenuously object to

Consolo's application

for fees regarding preparation for, and attendance

Appeal Management

Conferences").

Conferences.

at, two Civil

Program pre-argument conferences

(the "Appeal

Both Cameron and Curran attended these two Appeal

The

Court requires

these conferences

to promote

-9-

judicial efficiency.

high

degree of

presented.

We give

notice that the

comprehension of

the legal

been

and factual

issues

Thus, this Court will award fees for preparation for,

and attendance at, the Appeal Conferences.

not a full

Court demands

employment program.

sufficient,

1988(b) will

Where one

However,

1988(b) is

attorney would

not allow recovery

have

of fees for

the work

of two; the Court will discount the work of superfluous

attorneys.

(citing

cert.
_____

Hart v. Bourque, 798

____
_______

Cir. 1986)

King v. Greenblatt, 560 F.2d 1024, 1027 [1st Cir. 1977],

denied, 438
______

greet a claim

single

980 F.2d

U.S. 916 [1978]).

that several

set of tasks with

37, 47

and appearance

(1st Cir.

to perform

omitted).

fees for time spent in review

Hart,
____

798 F.2d at

522-23.

of one attorney's

Appeal Conferences when

of "reasonable hours" for the lodestar.

Pearson v. Fair,
_______
____

1992) (internal citations

include the work

for the

should ordinarily

healthy skepticism.

another attorney's research.

Court will only

Courts

lawyers were required

Similarly, we should not shift

number

F.2d 519, 523 (1st

of

This

preparation

calculating the

Since it appears

that Curran performed the great majority of the preparatory

work

for these conferences, we find that his work was reasonable under

Hart
____

and Pearson.
_______

Therefore, when

calculating the

number of

reasonable hours for the lodestar, we will not include 2 hours on

March 30, 1994, and .75 hours on May 12, 1994, claimed by Cameron

in conjunction with the Appeal Conferences.

George

work performed in

and Mulvey object

to the Application regarding

preparation for oral argument.

-10-

While Cameron

presented oral

Mulvey would

argument, Curran

limit Consolo's

limitations are

work.

Hart,
____

arrangement

798 F.2d at

attendance would

only

compel recovery

one

attorney's

George and

this overlap.

there is redundancy

At best,

have

Such

in legal

Curran and Cameron's

use of resources.

For example,

been sufficient,

co-counsel in conferences with

argument toward the

lodestar.

523.

was an inefficient

1988(b) does not

consider

recovery for

appropriate where

while Cameron's

joined his

provided research.

consultants.

for waste.5

work in

number of "reasonable

Curran

Section

This Court

research

of

the

hours spent" for

will

oral

the

Therefore, we deduct 7.6 hours from our calculation of

reasonable hours spent.6

We do,

attorneys'

however, allow

attendance at

present to answer any

Cameron

read

recovery of

the appellate

the fees for

hearing, as

the requirements

Curran was

factual questions regarding the trial

argued the substantive issues of law.

of "reasonable

both

and

Courts should not

hours expended"

to limit

their own factfinding process.

____________________

5
not

The attendance of two attorneys

per
se
________

contemporaneous
inconsistencies,

superfluous.
time

at the Appeal Conferences is

However,

records

given

and

the

Consolo's application fails

the

lack

of

application's

to meet its burden

of proof for this expense.

Similarly, we do not
Curran's

of law that Cameron

research arrangement was duplicative.

this instance we
expense.

hold as matter

find that

Consolo has failed

and

Nevertheless, in
to justify

this

We deduct 1.1 hours for work on August 25, 1994; 1.8 hours for

work

on September

6, 1994;

.7 hours for

work on

September 7,

1994; and 4.0 hours for work on September 8, 1994.

-11-

"core

3.
3.

Reasonable fees per hour

Reasonable fees per hour

The

fee per

rate."

hour for

Brewster,
________

bill other work, including

work on

3 F.3d at

the litigation

492 n.4.

is the

Applicants should

work on the application itself,

at a

reduced "non-core

prevailing

rate."

market

rate

in

A reasonable hourly rate

the relevant

similar

services

Blum v.
____

Stenson, 465 U.S. 886, 895 & n.11.

_______

circumstances .

applied

area."

even

by

Id.
___

lawyers of

. . the

Ramos v.
_____

reasonably

fee rates of

when the

lawyers

Lamm,
____

legal

community

"Absent more unusual

the local area

546, 555

Court

heard the

appeal.

Consolo

should be

are

from another

(10th

Cir. 1983).

Consolo contends that the relevant legal market is

this

for

comparable skills.

seeking fees

713 F.2d

is the

Boston, where

provided

an affidavit

declaring that $175 per hour is a reasonable fee for such work in

Boston.

George

and

community is Worcester,

claim

occurred.

Mulvey

claim

that

where the incidents

the

relevant

giving rise to

legal

the

George and Mulvey provide no evidence regarding

Boston area

fees, but

relevant per hour

judge

provide an

affidavit declaring

fee in Worcester is $150.

that the

Here, the district

allowed Consolo's request for $175 per hour for trial work

in Worcester.

We defer to

the determination by the trial

and consider $175 the "core rate," a

judge

reasonable fee per hour for

purposes of the lodestar.7

____________________

Because

reasonable
$175/hr.

the
fee

was a

determination

trial

court

in Worcester
reasonable
as to

concluded
and George

fee

in

whether the

that

and Mulvey

Boston,

trial

$175/hr.

we

court or

need

was

admit that
make

no

the appellate

court's legal community is used in calculation of the lodestar.

-12-

Consolo also

creation of

expended

the fee

applied for fees in

conjunction with the

applications themselves.

"Time reasonably

in connection with a fee application is compensable . .

. but it may be fairly compensated at a reduced rate."

F.3d at 494

spend

such

(internal citations

time

doing

previously taken.

Id.
___

little

In

omitted).

more

than

this case, we

$87.50.

Applicants often

documenting

action

will allow "non-core"

work such as this at one-half the "core rate."

hour for work on the

Brewster,
________

Thus, the fee per

Application and Supplemental Application is

4.
4.

Lodestar calculation
Lodestar calculation

Consolo applied

Application.

of

the

within

This Court denied

lodestar

application.

"reasonable

the

of 157.9 hours

under the

11.3 hours from the calculation

obvious

inconsistencies

in

that

As noted above, this Court also denied 10.35 hours

work.

as

these hours

Thus, this Court

number of hours" for

the 136.25 hours,

$175

for

the lodestar,

redundant

for a total

116.05 hours

per hour, for appellate

hours are billed

Application is $22,076.25.8

or

finds that 136.25 hours was a

purposes of the

are billed at

related work.

at $87.50 per hour,

application related work.

represent unnecessary

lodestar.

the "core

Of

rate,"

The remaining 20.2

half the "core

rate," for

Therefore, Consolo's lodestar for his

Under the Supplemental

for 41.1 hours.

Application, Consolo seeks fees

Of these, Cameron and Curran spent 29.7 hours on

____________________

(116.05 x $175) + (20.2 x $87.50).

-13-

certiorari-related activities; recovery for these hours is at the

"core rate" of $175.

hours

either

on

Cameron and Curran spent the remaining 11.4

Consolo's

rebuttal

memorandum

or

on

the

supplemental fee application.

This Court

calculation

due to

of the

time spent

lodestar,

on the Supplemental

remaining

10.5

at

denied .9 hours

inconsistencies regarding

Application.

one-half

of

from

the

"core

We

compensate the

rate,"

$87.50.

Therefore, Consolo's lodestar for the Supplemental Application is

$6,116.25.9

5.
5.

Consolo's total lodestar is $28,192.50.10

Special factors
Special factors

Courts may

"special

Court

depart from the lodestar

circumstances."

Lipsett, 975
_______

addressed the concerns of

the lodestar.

lodestar in

We, therefore,

awarding appellate

satisfy ourselves

to compensate for

F.2d at 937.

Here, the

both parties when it calculated

find no reason to depart from

and certiorari

of the overall fairness

fees.

We

the

must

and reasonableness of

the

fee under these particular circumstances.

77.

This

lodestar meets

awards Consolo

Lund, 587 F.2d at

____

these requirements.

Thus, the

$28,192.50 for attorney's fees under

Court

42 U.S.C.

1988(b).

6.
6.

Paralegal fees under

Paralegal fees under

Consolo also

Consolo

for

applied for $1,312.50 in

claims that O'Sullivan

spent 37.5 hours

which Consolo claims compensation

____________________

10

1988(b)
1988(b)

(29.7 x $175) + (10.5 x $87.50).

$22,076.25 + $6116.25.

-14-

at $35 per

paralegal fees.

on the appeal,

hour.

Courts

may

grant

paralegal

fees

Missouri v. Jenkins, 491

________
_______

pursuant

to

42

U.S. 274, 285 (1989).

use the lodestar for calculation of such fees.

O'Sullivan's

Conferences and the oral

above, we deny recovery

is redundant.

for unnecessary

U.S.C.

work

1988(b).

Courts commonly

Id.
___

included attendance

at

the Appeal

argument before this Court.

As stated

where the work performed by

Hart, 798 F.2d at 523.

____

paralegal work.

an attorney

We will also deny recovery

O'Sullivan's

attendance at the

conferences and

the hearing was

unnecessary; we will

this expense to George and Mulvey.

not shift

Thus we deny recovery for 5.4

hours of O'Sullivan's claim.

"Purely

billed at

clerical or

a paralegal

rate, regardless

Jenkins, 491 U.S. at 288 n.10.

_______

is clerical.11

The

secretarial

Consolo for

constitute

court will

of who performs

them."

not order a

shift of

number

The remaining

of

hours"

for

28.05 hours

O'Sullivan's

____________________

11

fees for

additional 4.05 hours requested

O'Sullivan's work.

"reasonable

not be

Some of O'Sullivan's claimed time

this time; therefore, we deny an

by

tasks should

Tasks that are clearly clerical include:

March 21, 1994

Review file

.15 hours

April 18, 1994

Locate documents

.3 hours

in file
July 20, 1994

To Copy Cop

July 21, 1994

Reorganize file

July 22, 1994

Continue to

.3 hours
1.3 hours
.4 hours

reorganize file
September 6, 1994

Locate documents

.2 hours

for oral argument

September 7, 1994

Locate documents

.5 hours

for oral argument

January 26, 1995

Retrieve documents

.5 hours

July 5, 1995

Locate documents

.4 hours

-15-

lodestar.

George and

Mulvey did not

contest the $35

per hour

rate claimed by

O'Sullivan.

rate" for O'Sullivan's

from

the

lodestar

Thus, we adopt

lodestar.

in

this

We see no

case

as

we

this as the

reason to

find

circumstances" that merit an increase or decrease.

975 F.2d

at 937.

Thus, this Court

awards Consolo

no

"core

deviate

"special

See Lipsett,
___ _______

$981.75 for

O'Sullivan's fees.12

7.
7.

Expenses
Expenses

Courts

may include

when awarding fees

F.2d

at 951.

and

necessary

competent

under

an attorney's

1988(b).

reasonable expenses

Grendel's Den, Inc.,

____________________

749

Section 1988(b) provides for awards of "incidental

expenses

incurred

representation."

in

furnishing

Northcross v.
__________

effective and

Board of Educ., 611

_______________

F.2d

624, 639

(6th Cir.),

cert. denied,
_____ ______

447 U.S.

911 (1979).

Consolo claimed $290.78 in

his Application for expenses relating

to

claimed

the

appeal.

He also

$427.71 in

the Supplemental

Application for certiorari-related expenses.

We

made

will not

shift the

during litigation.

cost of

Included in

long-term investments

his Application,

Curran

requests $117.91 for a police misconduct litigation treatise.

do

not question the usefulness of

should

make

filing for

a good

fees under

faith

this text; however, attorneys

effort to

1988(b).

Certainly, Consolo's attorneys could

minimize

We find no

12

28.05 x $35.00.

expenses before

such effort here.

have borrowed the text from

a library for a significantly smaller sum.

____________________

We

Thus we deny payment

-16-

for this expense.

George

transcript

of

and

Mulvey

objected

the Defendant's

closing

to

expenses

argument.

for

the

George

and

Mulvey

claim that Consolo never used the transcript, and thus we

should

not shift

its cost.

We

think it

is inappropriate

to

cross-reference expenses to the text of an Appellant's Brief when

awarding fees.

It is likely that Cameron and Curran investigated

course of argument they

research

Court

is contrary

later deemed unworthy.

to the purpose

of

Denying such

1988(b).

Thus, the

grants Consolo's request for $84 for the transcript of the

closing argument.

George

and Mulvey also contest the use of a courier to

send Consolo's appellate

service cost $14.

in

brief to the Defendants' counsel.

Consolo appears to have retained

This

the courier

good faith; it was a reasonable attempt to provide George and

Mulvey

with a copy of the brief.

Thus we grant the request for

$14.

Consolo

expenses.

requests

Parties

may

$54.15

recover

in

such

See, e.g., Northcross, 611 F.2d at 639.

___ ____ __________

photocopy

reasonable

and

library

expenses.13

George and Mulvey do not

object; thus this

expense is granted.

George and Mulvey also do

not object to a $8.39 expense for a videotape; this is granted.

The remaining $26.27 in

Consolo

should

have

obtained

the Application was an expense

under

Fed.

R.

App.

P.

39.

____________________

13

Counsel billed

$3.20 of Consolo's fee application

to "misc." and not to Consolo.

for costs

We do not consider this amount in

our calculations.

-17-

Applicants should

1988(b) action.

not seek

such costs under

Therefore, we

the aegis

grant $143.40 in

of a

expenses under

the Application.14

In

bill

from a

the

Supplemental Application,

legal publisher

reasonable expenses

Consolo

clearly identifying

related to

certiorari.

included a

necessary and

While

we have

no

record of payment, bills such as these are rebuttable evidence of

an expense.

bill.

not

We presume

that Cameron

and Curran will

pay this

If George and Mulvey had demonstrated otherwise, we would

have shifted

reproduction

and

Finally, Cameron

this

expense.

service

of

Thus,

Consolo's

we grant

Brief

requests $100 reimbursement

to the bar of the Supreme Court.

in

$327.71

for

Opposition.

for admission fees

George and Mulvey do not object

to this expense; it is thus granted.

C.
C.

Conclusion
Conclusion

In total,

this court awards $29,745.36

to Consolo for

appellate and certiorari attorney's fees and costs pursuant to 42

U.S.C.

1988(b) and 1st Cir. R. 39.2.

____________________

14

$290.78 - ($117.91 + $26.27 + $3.20).

-18-