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09-3943-cv (L)

Scott v. City of New York

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

_____________________

August Term 2010

(Argued: October 26, 2010 Decided: May 24, 2011)

Docket Nos. 09-3943-cv (L), 09-5232-cv (XAP)

_____________________

Keenan Scott, et al.,

Plaintiffs-Appellee-Cross-Appellant,

— V.— 

City of New York,

Defendant-Appellant-Cross-Appellee.

_____________________

B e f o r e : 

MINER, KATZMANN, and HALL, Circuit Judges.

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This case returns to us following our remand of it to the United States District Court for

the Southern District of New York (Scheindlin, J.) in December of last year. See Scott v. City of

New York, 626 F.3d 130 (2d Cir. 2010) (per curiam). In that decision, we considered to what

extent, if at all, our rule announced almost three decades ago in New York State Ass’n for
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Retarded Children, Inc. v. Carey, 711 F.2d 1136 (2d Cir. 1983), allows a district court to award

attorney’s fees notwithstanding the fact that the applying attorney failed to keep

contemporaneous time records. See Scott, 626 F.3d at 132-34. We concluded that Carey

establishes what is essentially a hard-and-fast-rule “from which attorneys may deviate only in

the rarest of cases,” id. at 133, and that any deviations from the rule must be based on

circumstances expressly found by the awarding court, in the first instance, to merit such

deviation, id. at 134. Because a district court’s “personal observation” of an attorney’s work is

not by itself a sufficient basis for permitting a deviation and awarding fees in the absence of

contemporaneous records, the most recent order of the district court reinstating its original award

of attorney’s fees is VACATED, and the case is REMANDED for further proceedings

consistent with this opinion.

VACATED AND REMANDED.

_____________________

THOMAS P. PUCCIO, The Law Offices of Thomas P. Puccio, New York,

NY, for Plaintiffs-Appellee-Cross-Appellant.

DEBRORAH A. BRENNER, for Michael A. Cardozo, Corporation Counsel of

the City of New York, New York, NY, for Defendant-Appellant-CrossAppellee.

_____________________

Per Curiam:

This case returns to us following our remand of it to the United States District Court for

the Southern District of New York (Scheindlin, J.) in December of last year. See Scott v. City of

New York, 626 F.3d 130 (2d Cir. 2010) (per curiam). In that decision, we considered to what

extent, if at all, our rule announced almost three decades ago in New York State Ass’n for
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Retarded Children v. Carey, Inc., 711 F.2d 1136 (2d Cir. 1983), allows a district court to award

attorney’s fees notwithstanding the fact that the applying attorney failed to keep

contemporaneous time records. See Scott, 626 F.3d at 132-34. We concluded that Carey

establishes what is essentially a hard-and-fast-rule “from which attorneys may deviate only in

the rarest of cases,” id. at 133, and that any deviations from the rule must be based on

circumstances expressly found by the awarding court, in the first instance, to merit such

deviation, id. at 134. Because a district court’s “personal observation” of an attorney’s work is

not by itself a sufficient basis for permitting a deviation and awarding fees in the absence of

contemporaneous records, the most recent order of the district court reinstating its original award

of attorney’s fees is VACATED, and the case is REMANDED for further proceedings

consistent with this opinion.

A full recitation of the underlying facts of this case may be found in our original

decision. See Scott, 626 F.3d at 131-32. For our purposes here, it is sufficient to state only that

this dispute arises from the district court’s decision to award Thomas P. Puccio $515,179.28 in

attorney’s fees pursuant to the Fair Labor Standards Act’s fee shifting provision, 29 U.S.C. §

216(b) (2006), for work performed in successfully litigating a case against the City of New York. 

See Scott v. City of New York, No. 02 Civ 9530 (SAS), 2009 U.S. Dist. LEXIS 78078 (S.D.N.Y.

Aug. 25, 2009). Attorney Puccio did not keep contemporaneous records, and the City appealed

the award, arguing that it violated the Carey rule, which explicitly requires that such records be

kept.

On appeal, we parsed the language of Carey and determined that:

Carey sets out unequivocally that absent unusual circumstances attorneys are

required to submit contemporaneous records with their fee applications. The
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permissive language at the end of the opinion recognizes that exceptions to the

rule may exist. The strength with which we articulated the general rule, however,

signals that any possible exceptions are minimal and limited in scope. In other

words, Carey establishes a strict rule from which attorneys may deviate only in

the rarest of cases.

626 F.3d at 133. We noted that there were no examples in this Circuit of attorneys receiving fees

in cases in which they had failed to provide at least some contemporaneous records, and we

suggested that any such instance might only be justified by truly unusual circumstances beyond

the applying attorney’s control. Id. at 133-34. Although there was nothing that we found in the

record to indicate the presence of anything out of the ordinary, we remanded the case to the

district court “so that it may explain why in its view Puccio’s circumstances warrant applying an

exception to the general rule in Carey.” Id. at 134. We retained jurisdiction over any appeal

following remand pursuant to the procedures set out in United States v. Jacobson, 15 F.3d 19,

21-22 (2d Cir. 1994). Scott, 626 F.3d at 134.

The district court on remand reinstated Puccio’s original award of $515,179.28 in

attorney’s fees. Although it stated that it was “loathe” to make an exception to Carey based on

personal observation, it did just that. Scott v. City of New York, No. 02 Civ. 9530 (SAS), 2011

U.S. Dist. LEXIS 25217, at *7-*9 (S.D.N.Y. Mar. 9, 2011). The court described the important

role that Puccio played in the litigation, recounting his work at trial and participation in

conferences. Id. at *7-*8. It estimated that, when reasonable travel time was included, the trial

by itself accounted for 120 hours of work, and judged that it was fair to attribute to Puccio the

additional 817 hours needed to justify his original award given the length of the case. Id. at *9

n.24. Overall, the district court found that it simply would be inequitable to deny Puccio an

award where it knew first-hand of his work in the case and good standing among the bar. Id. at
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*7-*8.

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
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 If properly documented in the official court records, Puccio may also recover for time

spent conferencing by phone with the district court.

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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,1

 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
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 Nothing stated herein is intended to preclude the parties from examining the applicable

court records and, based on those records, stipulating to the attorney hours thus documented.

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contemporaneous records.

Accordingly, we VACATE the district court’s order reinstating Puccio’s attorney’s fees,

and REMAND the case to the district court so that it may allow Puccio to submit a new

application for attorney’s fees based exclusively on official court records as set out above. The

district court is further instructed to apply to those hours it finds substantiated in such records the

hourly rate of $550 as previously determined by the court, see Scott, 02 Civ. 9530 (SAS), 2009

U.S. Dist. LEXIS 78078, at *23 & n.45, which we hold is reasonable.2