Of the Northern District of California, sitting by *

designation.

United States Court of Appeals

For the First Circuit

No. 08-1152

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

ONE STAR CLASS SLOOP SAILBOAT BUILT IN 1930 WITH HULL NUMBER 721,

NAMED "FLASH II",

Defendant in Rem.

____________________

KERRY SCOTT LANE,

Claimant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Lynch, Chief Judge,

Selya, Circuit Judge, and

Schwarzer, District Judge. *

Brenda Grantland for appellant.

Anton P. Giedt, Assistant United States Attorney, with whom

Michael J. Sullivan, United States Attorney, was on brief, for

appellee.
October 20, 2008
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SELYA, Circuit Judge. The instant appeal requires us to

revisit the FLASH II, a sailing vessel once owned by the late John

F. Kennedy. This time around, the district court found that the

government had failed to take reasonable steps to notify a partowner of the vessel (Dr. Kerry Scott Lane) of its intent to

forfeit. Since the government already had sold the vessel at

auction, the court — which determined that the sales price equalled

the vessel's fair market value — awarded a share of the net sales

proceeds to Lane. It subsequently granted him attorneys' fees in

an amount less than he had requested.

Lane appeals, challenging both the damages and fee

awards. The damages issues are case-specific, but the issues as to

fees are of potentially broader significance. After careful

consideration of these issues against the backdrop of a tangled

record, we affirm the damages award but modify the fee award.

I. BACKGROUND

We sketch the facts and procedural history in order to

place the issues into a workable perspective. In doing so, we

assume the reader's familiarity with our earlier opinion. See

United States v. One Star Class Sloop Sailboat (Sloop I), 458 F.3d

16 (1st Cir. 2006). 

On February 1, 2005, the government filed a civil

forfeiture complaint against the FLASH II, charging that the vessel

comprised the avails of narcotics trafficking. After finding
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probable cause to forfeit, the district court ordered the

government to notify those persons who arguably had an interest in

the FLASH II about the pendency of the action. Only one

individual, Harry Crosby, lodged a claim of interest. For reasons

that are no longer important, the government did not provide notice

to Lane.

On June 3, 2005, the clerk of the district court, acting

pursuant to a government motion, entered a default against all

interested parties who had received notice and had not responded

thereto. See Fed. R. Civ. P. 55(a). Crosby and the government

subsequently negotiated a settlement that contemplated the eventual

sale of the vessel. On July 15, 2005, the district court endorsed

that settlement and entered a default judgment of forfeiture.

Although Lane had learned of the seizure shortly after it

transpired, he did not look into it. He became aware of the

forfeiture proceeding only after the entry of default. He secured

counsel; moved unsuccessfully to vacate or amend the default

judgment, see Fed. R. Civ. P. 59(e), 60(b); and then appealed. 

Lane asked the district court to stay the forthcoming

forfeiture sale pending resolution of his appeal. The court

refused to do so. The government proceeded to sell the FLASH II

for $100,000 through Guernsey's (an auction house in New York).

Crosby received one-third of the net proceeds and the government

received the balance.
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We decided Lane's original appeal in August of 2006,

remanding to the district court to determine whether Lane had been

afforded constitutionally adequate notice of the forfeiture

proceeding. See Sloop I, 458 F.3d at 25-26. On remand, the case

was reassigned to a different district judge. See D. Mass. R.

40.1(K)(2).

The new judge ruled that the government had not taken

reasonable steps to discover Lane's proprietary interest in the

vessel and, thus, had given inadequate notice of the forfeiture

proceeding. In re One Star Class Sloop Sailboat (Sloop II), 517 F.

Supp. 2d 546, 549 (D. Mass. 2007). Consequently, the judge vacated

the default judgment. Id.

In due course, Lane and the government cross-moved for

summary judgment. These motions focused chiefly upon the

forfeitability of the FLASH II and its value. The parties

submitted various materials related to value, including evidence of

earlier bids and appraisals and an affidavit signed by Guernsey's

president, Arlan Ettinger. On May 15, 2007, the district court

tentatively granted the government's motion for partial summary

judgment, ruling that as long as the vessel had been properly

forfeited sovereign immunity barred the recovery of any sum in

excess of $100,000.

On May 24, the court held a single-day bench trial, which

focused principally upon the issues of (i) forfeitability and (ii)
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the validity and scope Lane's asserted ownership interest. At the

end of the day, the court reserved decision, set a briefing

schedule, and reminded the parties of the approaching deadline for

the completion of discovery. 

The briefs arrived on time. Relatedly, Lane requested

reconsideration of the earlier (tentative) ruling on sovereign

immunity. In the same time frame, the government proffered

transcripts of the depositions of Ettinger and Robert Augustus

Harper (an attorney who had represented another investor in the

FLASH II). 

On October 1, 2007, the district court handed down a

comprehensive rescript, in which it concluded that the FLASH II was

not forfeitable; that the vessel had a fair market value of

$100,000 at the time of its seizure; and that Lane should receive

his pro rata share of that sum. See Sloop II, 517 F. Supp. 2d at

554-56. The court also pointed out that, given its finding on fair

market value, the sovereign immunity issue had become moot. Id. at

556.

In a supplemental ruling, the district court found that

Crosby had a valid interest at least equal to the amount

($26,101.24) that he had received under his earlier settlement and

awarded Lane the balance of the $100,000 fair market value figure

(i.e., $73,898.76), together with post-seizure interest. Finally,

the court indicated that Lane, as a prevailing party, was entitled
 Both Lane's application and the district court's award 1

include expenses as well as fees. For ease in exposition, we use

the term "fees" as a shorthand for both fees and expenses.

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to reasonable attorneys' fees under the Civil Asset Forfeiture

Reform Act of 2000 (CAFRA), 28 U.S.C. § 2465(b)(1). 

Lane applied for approximately $293,000 in fees. The 1

government vigorously contested the amount. The district court

agreed that the request was exorbitant and awarded $51,929.13. See

United States v. One Star Class Sloop Sailboat (Sloop III), No. 05-

10192, 2008 WL 678519, at *2 (D. Mass. Jan. 9, 2008). This timely

appeal ensued.

II. ANALYSIS

Lane characterizes both the damages and fee awards as

inadequate. We address them separately. 

A. Damages.

As said, the lower court found that the fair market value

of the FLASH II was $100,000, and awarded Lane his pro rata share

of that amount. See Sloop II, 517 F. Supp. 2d at 556. On appeal

Lane concedes that he is entitled only to his share of fair market

value and does not challenge the court's proration as such. He

contends, however, that the court erred in valuing the FLASH II at

$100,000. His contention rests on two pillars, one procedural and

one substantive. 

1. The Procedural Pillar. Lane claims that the district

court determined the value of the FLASH II prematurely, that is,
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before affording him an opportunity to submit relevant evidence.

The theoretical underpinnings of this claim are sound: under normal

circumstances, a party must be afforded a fair chance to submit

evidence and arguments in favor of his position before a final

judgment is rendered. See EEOC v. S.S. Clerks Union, Local 1066,

48 F.3d 594, 609 (1st Cir. 1995). But due process does not

necessarily "require a full-scale trial, or even a hearing strictly

conforming to the rules of evidence" on every issue. In re

Nineteen Appeals, 982 F.2d 603, 611 (1st Cir. 1992); see Aoude v.

Mobil Oil Corp., 862 F.2d 890, 894 (1st Cir. 1988) (holding that

preliminary injunction motion may be heard "on the papers,"

provided that parties have had "a fair opportunity to present

relevant facts and arguments to the court"). Moreover, when the

parties consent to proceed in a particular manner (such as through

written submissions), courts understandably are reluctant to give

the loser a second bite at the apple on the ground that the agreed

process was insufficient. See, e.g., Aoude v. Mobil Oil Corp., 892

F.2d 1115, 1120 (1st Cir. 1989).

The court below found the fair market value of the FLASH

II without an evidentiary hearing devoted to that issue.

Nevertheless, the court provided the parties with ample opportunity

to present valuation evidence. The chronology follows.

The parties identified valuation as a key issue in a

joint statement submitted shortly after vacation of the default
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judgment. See D. Mass. R. 16.3(b). In their cross-motions for

summary judgment, both sides contested valuation and submitted

documents to support their respective positions. For example, Lane

pointed out that the FLASH II had received a high bid of $800,000

during an aborted 1998 auction and that Guernsey's had appraised

the vessel at $800,000 to $1,000,000 in 2004. He also argued that

the 2005 auction occurred under adverse conditions. For its part,

the government proffered an affidavit from Guernsey's president,

Ettinger, discussing the reasons for the munificent bid in 1998 and

for Guernsey's original appraisal. Ettinger also opined that the

2005 auction had taken place under favorable conditions.

The short of it is that the district court received a

substantial number of evidentiary submissions relating to the

vessel's value. Lane contributed to that influx of information and

consented to submitting the valuation issue on the papers. In view

of these facts and because the issue was susceptible to adequate

documentary proof, we discern no procedural bevue in the district

court's approach.

In an effort to blunt the force of this reasoning, Lane

complains that the court's ruling of May 15, 2007 — to the effect

that sovereign immunity barred any recovery in excess of $100,000

— pretermitted the presentation of valuation evidence. The record

belies this plaint. In terms, the May 15 ruling was tentative.

Importantly, it made pellucid that Lane could recover the vessel's
 With the exception of Crosby's deposition, all the evidence 2

mentioned by Lane was before the district court at the time the

court ruled. We have reviewed Crosby's deposition and find that it

contains no material pertinent to the valuation question other than

Crosby's recitation that the vessel had received bids of up to

$800,000 during an earlier (failed) auction. This information was

already before the court through other deponents.

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actual value if the court later determined that the FLASH II was

not lawfully forfeited. The court reiterated that message on at

least two occasions during the bench trial. Thus, Lane had both

the incentive and the opportunity to put forth his valuation

evidence. 

Lane suggests that the Ettinger deposition and a

deposition given by Crosby yielded relevant evidence of fair market

value, which he would have proffered had the valuation issue been

tried. That suggestion is doubly flawed. For one thing, Lane

fails to explain why he did not submit this evidence when he had

the chance. For another thing, Lane fails to identify any specific

facts not before the district court at the time of its decision on

value that might have affected the court's determination. The 2

latter failure, in itself, renders Lane's suggestion futile. See

Kelly v. Marcantonio, 187 F.3d 192, 203 (1st Cir. 1999); see also

HMG Prop. Investors, Inc. v. Parque Indus. Rio Canas, Inc., 847

F.2d 908, 915 (1st Cir. 1988) (holding that it is not error to deny

oral argument where complaining party fails to identify even a

"single, definable aspect of its position which could not have been

adequately presented by a written submission").
 This gentle prodding may have been lost on Lane, but it was 3

not lost on the government. Following the bench trial, the parties

conducted discovery relevant to the valuation issue, including the

taking of Ettinger's deposition. In the supplemental brief that it

submitted on June 29, 2007, the government relied heavily on the

Ettinger deposition to argue that the fair market value of the

FLASH II was $100,000.

 During oral argument in this court, Lane raised for the 4

first time a claim that he was denied his right to trial by jury on

valuation. We have been unable to find any hint in the record that

Lane asserted such a right either before the district court or in

his appellate briefs. In view of these omissions, we have no

occasion to address the argument here. See Pratt v. United States,

129 F.3d 54, 62 (1st Cir. 1997); United States v. Zannino, 895 F.2d

1, 17 (1st Cir. 1990).

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If more were needed — and we doubt that it is — at the

close of the bench trial the court reminded Lane that he had a

limited time left within which to conclude discovery, including

discovery directed to valuation. The court mused that it might 3

convene a further evidentiary hearing on valuation. At that point,

Lane indicated that such a hearing was unnecessary because the

valuation question could be adjudicated on the papers. This was a

waiver, pure and simple. See, e.g., United States v. Jiménez, 512

F.3d 1, 7 (1st Cir. 2007). 

That ends this aspect of the matter. Because the court

below provided Lane an adequate opportunity to present valuation

evidence through procedures to which Lane consented, his procedural

attack is easily repulsed.4

2. The Substantive Pillar. We come now to the

substantive component of Lane's argument. In this regard, he
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maintains that the evidence shows that the fair market value of the

FLASH II far exceeds $100,000. We review the accuracy of the lower

court's valuation finding for clear error. See McMurray v. C.I.R.,

985 F.2d 36, 40 (1st Cir. 1993); see also Fed. R. Civ. P. 52(a)(6).

Accordingly, we will override the court's valuation only if "on the

whole of the evidence we reach the irresistible conclusion that a

mistake has been made." Smith v. F.W. Morse & Co., 76 F.3d 413,

420 (1st Cir. 1996). If, however, "the district court's account of

the evidence is plausible in light of the record viewed in its

entirety," we must accept it. Anderson v. City of Bessemer City,

470 U.S. 564, 573-74 (1985).

We need not tarry. In the case at hand, the district

court's valuation rested principally upon its conclusion that the

2005 auction was conducted under particularly auspicious

circumstances. See Sloop II, 517 F. Supp. 2d at 551-52. The court

observed that the government had contractually obligated itself (in

the Crosby agreement) to sell the vessel at the highest possible

price; hired Guernsey's, a reputable auction house, in an effort to

fulfill that obligation; and tied Guernsey's commission to the

price actually received. Id. at 552. The court then noted that

the FLASH II was sold at an auction for Kennedy memorabilia that

had received widespread publicity. Id. Given these favorable

conditions, the court determined that the $100,000 price fetched at

the auction reflected fair market value. See id. 
-13-

Lane has identified several pieces of evidence that

purportedly undermine this finding of fact. For example, he cites

to negative publicity surrounding the FLASH II at the time of its

sale, including a Boston Globe article reporting that the vessel

was seized from a convicted narcotics trafficker and that Lane

would likely appeal the default judgment. He also points to

Ettinger's original estimate of the vessel's value ($800,000 to

$1,000,000) and to certain communications between the government

and Guernsey's. But all of this is simply whistling past the

graveyard; whatever the persuasive force of these materials, they

do not compel the conclusion that the FLASH II had a fair market

value exceeding $100,000. 

Despite the conflicting evidence, the district court had

a solid basis on which to conclude that the auction of the FLASH II

accurately captured its fair market value. The auction sale was

conducted in a commercially reasonable manner, and the district

court plausibly determined that the vessel sold for considerably

less than earlier estimates because there had been a general

decline in the price of Kennedy memorabilia. Id. No more was

exigible. See United States v. Mahone, 453 F.3d 68, 73-74 (1st

Cir. 2006) (upholding district court determination that item's

selling price at auction reflected its fair market value). 

Lane also argues that we should find as a matter of law

that the FLASH II had a fair market value of at least $600,000.
 Lane maintains that the government could not reasonably have 5

relied upon the validity of the judgment because it had provided

constitutionally inadequate notice of the forfeiture proceeding.

But the district court had denied Lane's motion for a stay, and

Lane had not appealed that denial. Particularly given that

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His reasoning is somewhat convoluted. He begins with the notion

that the government was obligated to obtain estimates from no fewer

than three disinterested appraisers and to establish a minimum

reserve price equal to at least two-thirds the average appraised

value before carrying out an auction sale. This notion derives

from Lane's reading of the Department of Justice publication, A

Guide to Interlocutory Sales and Expedited Settlement (2003)

(Guide), and his invocation of 28 U.S.C. §§ 2001(b) and 2004.

Lane's argument confuses plums with pomegranates. The

sale of property forfeited to the United States is governed by 21

U.S.C. § 881(e). That statute provides in pertinent part that the

Attorney General may "sell, by public sale or any other

commercially feasible means, any forfeited property which is not

required to be destroyed by law and which is not harmful to the

public." 21 U.S.C. § 881(e)(1)(B). The record makes manifest that

the 2005 auction constituted, at the very least, a commercially

reasonable means of selling the FLASH II. 

Lane's attempt to shift the focus to the Guide is

unpersuasive. Because the government sold the vessel pursuant to

a judgment of forfeiture entered on July 15, 2005, the Guide is

inapposite. And in all events, Lane has failed to explain how or 5
circumstance, we think that the government was entitled to rely

upon the validity of the forfeiture judgment even though Lane had

filed an appeal. See, e.g., Acevedo-García v. Vera-Monroig, 368

F.3d 49, 58 (1st Cir. 2004) ("The federal rules contemplate that,

absent a stay, a victorious plaintiff may execute on the judgment

even while an appeal of that judgment is pending."). 

-15-

why the Department of Justice's internal guidelines regarding the

interlocutory sale of assets give rise to a private right of action

enforceable in the federal courts. See United States v. Henry, 482

F.3d 27, 33 (1st Cir. 2007) (holding that "Justice Department

guidelines were not compelled by statute, nor intended to create

private rights") (citation omitted).

Lane's endeavor to shift the statutory center of gravity

is equally unavailing. Assuming arguendo that the strictures of 28

U.S.C. §§ 2001(b) and 2004 apply at all to the sale of forfeited

assets — a matter on which we take no view — Lane has failed to

demonstrate that the government transgressed either of these

provisions. 

The three-appraisal and reserve requirements of section

2001(b) apply to the judicial sale of personal property "unless the

court orders otherwise." 28 U.S.C. § 2004. In this case, the

district court "order[ed] otherwise"; its judgment directed the

Marshals Service "to arrange for the sale of the [FLASH II] in

accordance with United States Department of Justice policies

regarding the disposition of forfeited property."
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The relevant policies are embedded in the Department of

Justice's Asset Forfeiture Policy Manual (2005). That manual

provides in pertinent part that the Attorney General is empowered

"to dispose of [forfeited] property however he or she deems

suitable," id. at 86-87, because "forfeiture sales do not require

judicial confirmation pursuant to 28 U.S.C. § 2001," id. at 85. As

the district court ordered the Marshals Service to dispose of the

FLASH II in accordance with policies that expressly disavow

compliance with 28 U.S.C. § 2001, the three-appraisal and reserve

requirements were not triggered. See 28 U.S.C. § 2004. 

To conclude, we hold without serious question that the

district court supportably found that the FLASH II had a fair

market value of $100,000. We therefore uphold the district court's

damages award.

B. Fees.

The district court declared Lane, as a prevailing party,

entitled to attorneys' fees under CAFRA's fee-shifting provision,

28 U.S.C. § 2465(b)(1). Lane asked for $293,591.42 in fees.

Deeming this request excessive, the court awarded $51,929.13.

Sloop III, 2008 WL 678519, at *2. Lane challenges the award as too

meagre. 

When fee-shifting is in prospect, "district judges have

great discretion in deciding what claimed legal services should be

compensated." Brewster v. Dukakis, 3 F.3d 488, 492 (1st Cir.
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1993). Consequently, we generally review fee-shifting awards for

abuse of discretion. See Torres-Rivera v. O'Neill-Cancel, 524 F.3d

331, 335 (1st Cir. 2008). Lane suggests, without citation to any

persuasive authority, that CAFRA fee awards may warrant a different

standard of review. That argument lacks force. We have used abuse

of discretion as the standard of review for fee awards under feeshifting statutes that employ language similar to CAFRA's, see,

e.g., DeJesús v. Banco Popular, 951 F.2d 3, 5 (1st Cir. 1991)

(Truth-in-Lending Act), and we see no reason to employ a different

standard here. 

"[A]n abuse of discretion occurs when a material factor

deserving significant weight is ignored, when an improper factor is

relied upon, or when all proper and no improper factors are

assessed, but the court makes a serious mistake in weighing them."

Coutin v. Young & Rubicam P.R., Inc., 124 F.3d 331, 336 (1st Cir.

1997) (citation and internal quotation marks omitted). Within this

rubric, "an error of law is always tantamount to an abuse of

discretion." Torres-Rivera, 524 F.3d at 336. 

None of this is to say that appellate review is a mere

formality. Even though we respect a district court's superior

coign of vantage, see Gay Officers Action League v. Puerto Rico,

247 F.3d 288, 292 (1st Cir. 2001), we nonetheless take seriously

our responsibility to assure that a fee award falls within the

universe of acceptable outcomes.
Lane's entitlement to fees arises under CAFRA. Because that 6

statute does not explicitly dictate a method for calculating fees,

the lodestar method constitutes the preferred approach. See United

States v. Metro. Dist. Comm'n, 847 F.2d 12, 15 (1st Cir. 1988). As

a necessary corollary, we are free to apply the vast body of

precedents that have sprung up under an array of similarly

configured federal fee-shifting statutes. See id. 

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Our starting point is familiar. Where fee-shifting under

an open-ended statute is at issue, courts typically ascertain

reasonable attorneys' fees by means of the lodestar method.6

Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). That method

entails "multiplying the number of hours productively spent by a

reasonable hourly rate." Torres-Rivera, 524 F.3d at 336. In

determining the number of hours productively spent, the court

should "eliminate time that was unreasonably, unnecessarily, or

inefficiently devoted to the case" and may, under appropriate

circumstances, "disallow time spent in litigating failed claims."

Id. (citations omitted). Reasonable hourly rates will vary

depending on the nature of the work, the locality in which it is

performed, the qualifications of the lawyers, and other criteria.

See Gay Officers Action League, 247 F.3d at 295; see also United

States v. Metro. Dist. Comm'n, 847 F.2d 12, 19-20 (1st Cir. 1988).

Even after the basic lodestar is calculated, the court may adjust

it, up or down, to reflect other considerations, such as the

results obtained. Coutin, 124 F.3d at 337 & n.3.

In the case at bar, the district court wrote tersely. It

seems to have performed a modified lodestar analysis. The time
 The court stated at one point that it also would disregard 7

two-thirds of the time relating to the forfeitability issue. But

in the end, this proved to be an empty threat; the court instead

adopted the government's recasting of those hours. See Sloop III,

2008 WL 678519, at *1 n.2. 

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sheets that Lane submitted showed work done by two lawyers (Brenda

Grantland and Eric Goldberg) and a paralegal (Judy Osburn). The

court determined that the legal team's efforts were largely

unsuccessful; Lane was thwarted in most of the initiatives that he

undertook and recovered only a fraction of the damages that he

sought. Sloop III, 2008 WL 678519, at *1. Accordingly, the court

disallowed everything related to issues that Lane had litigated and

lost. Id. 

The court proceeded to reduce by two-thirds the time

claimed by Grantland in relation to removal of the default

judgment. Id. It then eliminated all of Goldberg's time. See 7

id. The hours remaining after these excisions constituted the time

reasonably spent. See id.

Turning from the multiplicand to the multiplier, the

court concluded that Grantland's base hourly rate was what she

normally charged in her home community and reduced that rate to

account for "egregious overlitigation." Id. at *2. These and

other determinations, not contested on appeal, yielded the amount

of the award. In the pages that follow, we address Lane's

principal arguments about where the district court supposedly went

astray. 
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1. Limited Success. The extent of success achieved by

a prevailing party is "a crucial factor" in shaping a fee award.

Hensley, 461 U.S. at 440. In this context, the term "success" is

multi-dimensional. It refers among other things to an evaluation

of success "claim by claim" and to an appreciation of "the relief

actually achieved." Coutin, 124 F.3d at 338. If a prevailing

party has achieved only limited success, the trial court may reduce

the fee request to an amount that reasonably reflects that

circumstance. See Hensley, 461 U.S. at 440.

The method employed to calibrate the appropriate fee

reduction in a case of limited success depends on the nature of the

shortfall. When, for example, a fee adjustment is intended to

reflect the success or failure of claims that are themselves

separate and distinct, an inquiring court may simply exclude time

spent in litigating the unsuccessful claims. See Coutin, 124 F.3d

at 338; cf. Aubin v. Fudala, 821 F.2d 45, 47 (1st Cir. 1987)

(explaining that fees may be awarded for "interconnected" claims

despite failure on some of them). Even when a party prevails on a

particular claim, however, he is only entitled to recover fees for

time productively spent. Consequently, time invested in issues

that are litigated profligately, unnecessarily, or without benefit

to the prevailing party may be disallowed. See, e.g., Lipsett v.

Blanco, 975 F.2d 934, 937 (1st Cir. 1992); Grendel's Den, Inc. v.

Larkin, 749 F.2d 945, 952-55 (1st Cir. 1984); see also Hensley, 461
-21-

U.S. at 436-37 (explaining that an adjustment designed to reflect

the scantiness of a prevailing party's recovery may take the form

of a global reduction).

Here, the district court's finding of limited success

hinged on two separate rationales. First, it determined that Lane

had prevailed on only one issue — forfeitability — and had failed

on others to which he had quixotically dedicated time and

resources. See Sloop III, 2008 WL 678519, at *1. Second, it

determined that Lane's ultimate recovery ($73,898.76) paled in

comparison to the remuneration that he had sought throughout. See

id.

We discern no abuse of discretion in the court's

conclusion that Lane had achieved only limited success. Lane

attempted to obtain discovery to which he was not entitled, served

a subpoena on Crosby that was quashed, and ineffectually contested

the applicability of sovereign immunity. Moreover, Lane raised and

devoted appreciable energy to a number of valuation theories that

proved to be blind alleys. Finally, Lane recovered much less than

the amount he had sought (indeed, he continues to maintain on

appeal, without any cogent basis, that as a matter of law the FLASH

II had a value of at least $600,000). 

Faced with this stark reality, Lane tries a diversionary

tactic. He notes that the district court mentioned that his lowest

settlement demand was $300,000. See id. He now says that evidence
-22-

of this demand was inadmissible. See Fed. R. Evid. 408(a)(1)

(prohibiting use of certain offers in compromise). But Lane did

not object below to the admission of this evidence. To the

contrary, he brought it up and referred repeatedly to it. This was

a waiver — and waived issues cannot be resurrected on appeal. See

United States v. Walker, 538 F.3d 21, 23 (1st Cir. 2008); United

States v. Rodríguez, 311 F.3d 435, 437 (1st Cir. 2002). 

Lane also takes umbrage at the remedy chosen by the

district court to account for his limited success. His argument in

this regard rests on the premise that a district court may not deny

fees relating to subsidiary issues on which the prevailing party

lost so long as that party won on the overarching claim. Noting

that he prevailed on the only "claim" involved in this litigation

— forfeitability — Lane insists that he is entitled to fees for

litigating all the issues raised in the case. We disagree.

A court may reduce a prevailing party's requested fees

even if the party has succeeded on all or substantially all of his

claims. See Hensley, 461 U.S. at 440; Coutin, 124 F.3d at 339.

There is no rigid prescription that must be followed in effecting

such a reduction. The district court may either eliminate specific

hours or reduce the overall fee to account for the prevailing

party's limited success. Hensley, 461 U.S. at 436-37. 

Here, the district court chose the former route. That

court was uniquely situated to determine whether Lane's lawyers
 To be sure, in holding that Lane had achieved only limited 8

success, the lower court also referred to the disparity between

damages sought and damages awarded. See Sloop III, 2008 WL 678519,

at *1. While such a disparity is not a per se justification for a

fee reduction, see Coutin, 124 F.3d at 340, a trial court is

entitled to take it into account as part of the totality of the

circumstances, see Farrar v. Hobby, 506 U.S. 103, 114-15 (1992). 

-23-

wasted their time (and the court's) by unreasonably or

unnecessarily litigating issues that were hopeless, peripheral, or

otherwise extraneous. See Torres-Rivera, 524 F.3d at 336; Metro.

Dist. Comm'n, 847 F.2d at 18-19; Wojtkowski v. Cade, 725 F.2d 127,

130 (1st Cir. 1984). Because the district court plausibly could

have determined that efficient counsel would not have invested the

time that Lane's counsel claimed to have invested in litigating

marginal issues, the court acted within the wide encincture of its

discretion in refusing to include any part of that time in the fee

award. See, e.g., Pearson v. Fair, 980 F.2d 37, 47 (1st Cir. 8

1992); Grendel's Den, 749 F.2d at 952-55.

2. Grantland's Hourly Rate. In determining the

multiplier for a lodestar award — the applicable hourly rate — an

inquiring court should look to "the prevailing market rates in the

relevant community." Blum v. Stenson, 465 U.S. 886, 895 (1984).

When a party recruits counsel from outside the vicinage of the

forum court, that court may deem the "relevant community" to be the

community in which the lawyer maintains his or her principal

office. See Maceira v. Pagán, 698 F.2d 38, 40 (1st Cir. 1983). In
 The court repeatedly referred to a base rate range of $250- 9

$275 per hour. For ease in exposition, we use the lesser of these

figures. Since this was only an intermediate calculation, that

choice does not in any way affect our rationale.

-24-

that event, the court may look to the outside lawyer's actual

billing practices to determine the relevant rate. See id.

Here, Grantland filed an affidavit attesting that her

customary billing rate was $275 per hour, and that she had agreed

to charge Lane $250 per hour. Nevertheless, because she thought

that the prevailing market rate for civil rights attorneys in

Boston exceeded these levels, she asserted an entitlement to

compensation at $325 per hour. 

The district court, citing Maceira and the fee agreement,

set Grantland's base rate at $250 per hour. See Sloop III, 2008 9

WL 678519, at *2. Lane objects, arguing that the Maceira rule

should apply only when the prevailing out-of-state rate exceeds the

prevailing local rate. We reject that curious construct. 

In the fee-shifting context, a district court's primary

concern is with the market value of counsel's services. See In re

Cont'l III. Sec. Litig., 962 F.2d 566, 568 (7th Cir. 1992). Thus,

the rate that private counsel actually charges for her services,

while not conclusive, is a reliable indicium of market value. See,

e.g., Crescent Publ'g Group, Inc. v. Playboy Enters., Inc., 246

F.3d 142, 151 (2d Cir. 2001); People Who Care v. Rockford Bd. of

Educ., 90 F.3d 1307, 1310 (7th Cir. 1996); Scales v. J.C. Bradford
-25-

& Co., 925 F.2d 901, 909-10 (6th Cir. 1991); Spell v. McDaniel, 824

F.2d 1380, 1402 (4th Cir. 1987); Bebchick v. Wash. Metro. Area

Transit Comm'n, 805 F.2d 396, 404 (D.C. Cir. 1986). This

proposition in effect allows the court to use counsel's standard

rate, or the prevailing market rate in the forum, or a reasonable

rate in between. This court's Maceira decision accords with this

well-settled proposition. 

It is true, of course, that Maceira involved an out-ofstate lawyer who customarily charged an hourly rate in excess of

the prevailing local rate. See 698 F.2d at 40. District court

cases in this circuit applying Maceira often feature the same

configuration. See, e.g., R.I. Med. Soc'y v. Whitehouse, 323 F.

Supp. 2d 283, 292 (D.R.I. 2004); Libertad v. Sánchez, 134 F. Supp.

2d 218, 234-35 (D.P.R. 2001); Guckenberger v. Boston Univ., 8 F.

Supp. 2d 91, 103-04 (D. Mass. 1998). But we perceive no reason why

the Maceira rule must act as a one-way rachet, entitling out-ofstate counsel to earn more than local attorneys but not less.

Here, moreover, the base rate favored by the district court — $250

per hour — is in keeping with the rates customarily charged by

civil rights practitioners in Boston during the relevant period.

See Cerqueira v. Am. Airlines, Inc., 484 F. Supp. 2d 241, 250 (D.

Mass. 2007) (collecting cases holding that "the prevailing rate for

lead civil rights attorneys in the Boston area ranges between $200
-26-

and $350 per hour"), vacated on other grounds, 520 F.3d 1 (1st Cir.

2008). 

In a related vein, Lane strives to convince us that the

district court abused its discretion by considering the terms of

his idiosyncratic fee arrangement with Grantland. We are not

persuaded. 

Although a prevailing party's fees are not necessarily

limited by a preexisting agreement between lawyer and client, such

an agreement is some evidence of the prevailing market rate for the

lawyer's services. See Blanchard v. Bergeron, 489 U.S. 87, 93

(1989); Pennsylvania v. Del. Valley Citizens' Council for Clean

Air, 483 U.S. 711, 723 (1987). And when, as in this case, the rate

agreed to between the prevailing party and his attorney is within

the universe of reasonable rates, a district court does not abuse

its discretion by taking the agreed rate into account in its feedetermination calculus. See, e.g., Vernon v. Port Auth. of N.Y. &

N.J., 220 F. Supp. 2d 223, 230 (S.D.N.Y. 2002); Easter House v.

Ill. Dep't of Children & Family Servs., 663 F. Supp. 456, 459 (N.D.

Ill. 1987). 

In sum, the district court did not abuse its discretion

in (i) relying on Grantland's customary billing practices; (ii)

taking into account the rate negotiated between Lane and Grantland

for purposes of this case; or (iii) fixing Grantland's base rate at

$250 per hour. 
-27-

There is another chapter to this story. The district

court next adjusted Grantland's rate downward to $175 per hour on

the basis of "egregious overlitigation." Sloop III, 2008 WL

678519, at *2. Lane claims that this reduction constituted an

abuse of discretion because the court did not simultaneously

recount particular instances of overlitigation.

It is always helpful for a nisi prius court to elaborate

upon its findings, and we encourage that practice. Still, no such

elaboration is essential if a reviewing court can without

difficulty discern the basis for the unexplained or poorly

explained finding from the record. See Torres-Rivera, 524 F.3d at

337. So it is here.

The district court, citing book and verse, found that

Lane had stubbornly persisted in litigating (and then losing) a

cavalcade of issues. Sloop III, 2008 WL 678519, at *1. This

persistent tilting at windmills provides several examples of

egregious overlitigation. In addition, the court adopted the

recasting contained in the government's opposition to Lane's fee

application. See id. at *1 n.2. By interpolation, these recasted

figures limn a great many excessive, duplicative, or otherwise

unnecessary hours. 

The Supreme Court has warned that ancillary litigation

over fees should not be allowed to become the tail that wags the

dog. See City of Burlington v. Dague, 505 U.S. 557, 566 (1992)
-28-

(discussing need to avoid "burdensome satellite litigation" to

resolve fee applications). In that spirit, the trier's fee

determinations must be reasonably clear — but they need not be

precise to the point of pedantry. See Foley v. City of Lowell, 948

F.2d 10, 20 (1st Cir. 1991) (indicating that district court's

findings "need not be infinitely precise, deluged with details, or

even fully articulated") (citations, internal quotation marks, and

alterations omitted). Because the foundation for the district

court's finding of egregious overlitigation is easily discerned,

the court did not abuse its discretion by neglecting to provide a

further quarry of specific examples to support that finding.

In addition, Lane accuses the district court of "double

counting." His thesis runs along the line that by eliminating time

spent on losing issues and then by making a global reduction for

egregious overlitigation, he has been twice penalized for the same

conduct. But that thesis does not hold together: the district

court implied — and the record bears out — that Lane egregiously

overlitigated the issues on which he prevailed. For example, as we

describe below, see infra Part II(B)(5), Lane spent nearly twice

the amount of time that we deem reasonable litigating the default

issue. There was no double counting here. 

This leaves the size of the downward adjustment. That

shrinkage — from $250 to $175 per hour — is significant but not

unprecedented. See, e.g., Maldonado v. Houstoun, 256 F.3d 181, 188
 While it is permissible to use a rate reduction as a method 10

of accounting for an extravagant commitment of time, we suggested

in Miles, 675 F.2d at 9, and today reaffirm, that this is not the

preferred methodology. Reducing hours is generally a more

effective antidote to cure excess time. 

-29-

(3d Cir. 2001) (reducing fees by 50% on account of limited

success); Cooke v. Stefani Mgmt. Servs., Inc., 250 F.3d 564, 570

(7th Cir. 2001) (upholding 50% limited-success reduction); Harris

v. Marhoefer, 24 F.3d 16, 18-19 (9th Cir. 1994) (same); Zook v.

Brown, 865 F.2d 887, 895-96 (7th Cir. 1989) (upholding 75% limitedsuccess reduction); see also Miles v. Sampson, 675 F.2d 5, 9 (1st

Cir. 1982) (confirming that court may reduce fees on account of

unnecessary and duplicative work by decreasing hourly rate). We 10

descry no abuse of discretion here.

3. The Default Judgment. Although district courts

possess broad discretion to determine appropriate attorneys' fees,

they overstep that discretion when they rely on an improper factor.

See Coutin, 124 F.3d at 341. Here, the district court disallowed

two-thirds of the fees related to the vacation of the default

judgment due to Lane's perceived lack of diligence in seeking to

intervene in the forfeiture proceeding. Sloop III, 2008 WL 678519,

at *1. Disallowing fees on this basis is in tension with our preremand holding that, regardless of Lane's knowledge of the seizure,

the government had an unflagging obligation to take reasonable

steps to identify the owners of the FLASH II and provide them with
-30-

specific notice of the forfeiture proceeding itself. Sloop I, 458

F.3d at 25. 

On remand, the district court found that the government

had failed to take reasonable steps to identify and locate Lane.

Sloop II, 517 F. Supp. 2d at 549. Accordingly, it granted Lane's

motion to vacate the default judgment of forfeiture. Id. This

finding leads to the inevitable conclusion that, had the government

complied with its constitutional obligation to provide adequate

notice, there would have been no need to litigate the propriety of

the default judgment. Thus, even though Lane might have come

forward to make a claim earlier, we see no compelling reason either

to lighten the government's constitutional burden or to ease the

consequences of its constitutional breach. Cf. United States v.

Harrigan, 557 F.2d 879, 884 (1st Cir. 1977) ("If this statutory

duty is to have any practical significance, we think it is

necessary to attach consequences to its violation which discourage

abuse and which protect against resulting injury.") (citation and

internal quotation marks omitted).

The government argues that a footnote in our earlier

opinion left open the possibility that Lane would bear the brunt of

his failure to act more expeditiously. See Sloop I, 458 F.3d at 25

n.10 (suggesting that Lane's failure to make the government aware

of his interest before the entry of default was "not necessarily

irrelevant to the final outcome of the Rule 60(b) motion," since
-31-

that failure might inform equitable considerations pertinent to

Rule 60(b) relief). The government reads this footnote through

rose-colored glasses. 

The footnote cannot be construed to suggest that Lane's

failure to come forward earlier could shift to him responsibility

for the litigation needed to test the propriety of the default

judgment. In other words, once the court below had determined that

Lane was entitled to relief despite his failure to make his

identity known sooner and had vacated the default, the conclusion

became inevitable that the government was to blame for the

litigation surrounding the default judgment. Under these

circumstances, it was an abuse of discretion for the court to

reduce the fee award based on Lane's procrastination. Cf. Coutin,

124 F.3d at 341-42 (explaining that a district court may not reduce

attorneys' fees "to assuage lingering doubts about the legal

viability of [a successful] claim").

4. Goldberg's Hours. The district court disallowed all

fees attributable to Lane's other lawyer, Eric Goldberg. Sloop

III, 2008 WL 678519, at *1. Goldberg's time seems to have focused

mainly on vacation of the default judgment. The records give us

little insight, however, into why Goldberg's time should be

considered productively spent. It is not clear that Goldberg

worked successfully on any issue not also fully addressed by

Grantland. Indeed, there is nothing to indicate that Lane may have
-32-

needed a second lawyer to handle a case on which Grantland spent so

many hours.

Lane does little to resolve this quandary. While he

mentions the disallowance of Goldberg's time on two occasions in

his opening brief, he fails to develop a meaningful rationale

either for why Goldberg's involvement was necessary or for why

jettisoning Goldberg's hours constituted error. As such, we

believe that Lane can fairly be said to have abandoned his

objection to the disallowance of Goldberg's fees. See United

States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

At any rate, overstaffing is a familiar problem in cases

in which fee-shifting is in prospect. See, e.g., Pearson, 980 F.2d

at 47; Metro. Dist. Comm'n, 847 F.2d at 18-19; Grendel's Den, 749

F.2d at 953. Goldberg's work, taken at face value, appears to

mimic portions of Grantland's work; and there is absolutely nothing

in the record that suggests a legitimate need for a second

attorney. Thus, refusing to allow Lane to claim time for both

Goldberg and Grantland on apparently overlapping work appears to be

an appropriate exercise of the district court's discretion. 

To sum up, although the district court was not explicit,

the record supports a reasonable inference that Goldberg's work

duplicated portions of Grantland's work. The government suggested

that Goldberg's time should be disregarded on that theory, and we

can assume that the district court bought into that suggestion.
-33-

See Sloop III, 2008 WL 678519, at *1 n.2 (adopting government's

calculation of hours reasonably expended). That was not an abuse

of discretion. Grendel's Den, 749 F.2d at 950 (indicating that

court should eliminate hours that are "duplicative, unproductive,

excessive, or otherwise unnecessary").

5. Reconciliation. To recapitulate, we have determined

that the court below erred in only one respect. Because this error

requires recalculation of the fee award, we ordinarily would remand

for that purpose. We have, however, eschewed a remand in some

cases in which the recalculation can be performed by this court.

See, e.g., Gay Officers Action League, 247 F.3d at 299; Lipsett,

975 F.2d at 943. In this instance, we elect to follow the latter

course. 

The solitary error that taints the fee award concerns the

district court's across-the-board disallowance of two-thirds of the

time that Grantland claims to have spent in litigating the default

judgment. See supra Part II(B)(3). Grantland lists a total of

223.25 hours relating to that aspect of the litigation. The

district court cut this time to 74.42 hours — but it used an

impermissible factor to justify that reduction.

This does not mean, however, that Lane is automatically

entitled to restoration of the full 148.83 hours that the district

court cut. In an effort to isolate time productively spent, we

have examined Grantland's time sheets in light of the record. That
-34-

examination persuades us to adjust the time spent litigating the

propriety of the default judgment to 145 hours. We believe that

this is the maximum amount of time that a reasonably efficient

lawyer would have spent in litigating this issue. 

This determination brings the total number of compensable

hours in the case to 307.2. Multiplying that number by the hourly

rate that the district court supportably assigned to Grantland, see

supra Part II(B)(2), we arrive at an overall fee award of $53,760,

exclusive of expenses. Lane is also entitled to recover the sum of

$7,117.50, which represents the district court's assessment of the

fair market value of the work performed by Grantland's paralegal

(Osburn). 

The district court also reduced the expenses incurred in

connection with litigating the default judgment by two-thirds. We

restore that cut ($1,030.61) in full. Doing so brings Lane's

recoverable expenses to $4,434.74. 

These computations yield a total of $65,312.24 in fees

and expenses. The fee award should be increased to this amount.

III. CONCLUSION

We need go no further. To the extent that Lane has made

other arguments, they are plainly meritless, insufficiently

developed, or both. We reject them out of hand.

For the reasons elucidated above, we affirm the judgment

awarding Lane $73,898.76 in damages; order modification of the
-35-

ancillary fee award to $65,312.24; and affirm that award as

modified. Interest shall accrue on these amounts as provided by 28

U.S.C. § 1961. No fees, expenses, or costs shall be taxed for

services rendered in connection with this appeal.

So Ordered.