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2d. Cir.: Award of Attorney’s Fees for All Time Worked Cannot Be Based Solely Upon Court’s Observation of Counsel
Scott v. City of New York
This case was before the Second Circuit for the second time on the issue of attorney’s fees. The plaintiffs prevailed in the underling case, but the plaintiffs’ attorney failed to keep contemporaneous time records. Nonetheless, following judgment for employees in a Fair Labor Standards Act (FLSA) suit, the trial court awarded plaintiffs’ attorney partial attorney fees. On the first appeal, the defendant appealed, and plaintiffs’ attorney cross-appealed from denial of certain fees. In a decision discussed here, the Court of Appeals, 626 F.3d 130, vacated the initial fee award and remanded because the district court did not explain the basis on which attorney was excepted from requirement to submit contemporaneous time records with fee application. Upon remand, the District Court, 2011 WL 867242, reinstated original award, and based the award on its own observations of plaintiffs’ counsel during the case. Both parties appealed. The Second Circuit held that the district court’s personal observation and opinions of attorney (alone) did not constitute exceptional circumstances that permitted award of attorney’s fees. Thus, the case was again remanded for a finding as to reasonable attorney’s fees.
The court reasoned:
“An award based entirely on the district court judge’s personal observation and opinions of the applying attorney, however, is contrary to Carey and must be vacated. If nothing else, permitting that basis for what should be a rare exception is completely unfair to an attorney who has done identical work, failed to keep the required contemporaneous records but whose reputation is unknown to the judge. It would also be unfair to that lesser-known attorney who has done good work but for one reason or another has failed to impress the judge. Moreover, such an “exception” is not an exception to the Carey rule at all. It is an abrogation. We interpreted Carey as conditioning attorney’s fees on contemporaneous records in all but the “rarest of cases.” Scott, 626 F.3d at 133. A district court judge has an opportunity to see and evaluate a lawyer’s work in all cases. On appellate review there are additional considerations. As we recognized in Carey, it is difficult if not impossible for courts of appeal to meaningfully review awards based entirely on a district court’s sense of fairness. 711 F.2d at 1147. Without contemporaneous records “we have little choice but to show considerable deference to the District Court’s conclusion as to how many hours were reasonably compensable.” Id. Abuse of discretion review in these instances, however, requires a more searching inquiry. While it is true that we will—by default—need to rely on a district court’s estimate of compensable time when Carey’s narrow exception is triggered, such deference is a necessary evil brought about only by some other good reason. It is not a justification unto itself.
We have been pointed to no evidence that would permit us to conclude that this case falls within an exception to the Carey rule that would justify an award of all the fees for time that might be documented by an attorney’s contemporaneous records. Nonetheless, we are persuaded that Puccio should be eligible to recover limited fees for any contemporaneously documented time that he was physically before the district court. We thus hold that entries in official court records (e.g. the docket, minute entries, and transcriptions of proceedings) may serve as reliable documentation of an attorney’s compensable hours in court at hearings and at trial and in conferences with the judge or other court personnel. Where the court’s docket reflects that Puccio was in the courtroom participating in trial or was in chambers in conference with the judge and other counsel, these entries, comparable to contemporaneous attorney time records, may be effective substitutes for Puccio’s own contemporaneous records. In so holding, we hasten to add that this is not an invitation for district courts to engage in the type of conjecture that has occurred here with respect to Puccio’s purported 120 hours of trial time. Instead, attorneys seeking fees must point to entries in the official court records that specifically and expressly demonstrate their presence before the court and indicate with reasonable certainty the duration of that presence. No accommodation is to be made for travel time or out-of-court preparation because that will vary from attorney to attorney and issue by issue. Finally, we emphasize that the onus of gathering the applicable docket entries and other court records, if any, is on the applying attorney, not the district court. The district courts are under no obligation to award fees based on such time. Our holding today merely clarifies that using such remedies in this limited fashion will not run afoul of Carey if the district court chooses to do so. We believe that such a regime prevents a totally inequitable result in cases such as this while, at the same time, preserving the strong incentive Carey creates for lawyers to keep and submit contemporaneous records.”
Accordingly, the Second Circuit vacated the district court’s order reinstating plaitniffs’ attorney’s fees, and remanded the case to the district court so that plaintiff could submit a new application for attorney’s fees based exclusively on official court records.
As some have noted, the series of decisions rendered in this case seem to be in contradiction to previous Second Circuit jurisprudence, which has not required contemporaneous time records in order to support an award of fees. Since the Second Circuit did not explicitly overrule its prior cases, it will be interesting to see what effect, if any, the Scott decisions will have on future cases.
Click Scott v. City of New York to read the entire Second Circuit opinion.