Matalon v. Hynnes

United States Court of Appeals

For the First Circuit

No. 15-1372

SCOTT MATALON,

Plaintiff, Appellee,

v.

JOSEPH HYNNES and MARY ANN O'NEILL,

Defendants, Appellants,

CITY OF BOSTON,

Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Leo T. Sorokin, U.S. District Judge]

Before

Howard, Chief Judge,

Selya and Stahl, Circuit Judges.

Nicole M. O'Connor, Assistant Corporation Counsel, City of

Boston Law Department, with whom Eugene L. O'Flaherty, Corporation

Counsel, and Katherine N. Galle, Assistant Corporation Counsel,

were on brief, for appellants.

Robert S. Sinsheimer, with whom Wesley B. Stoker and

Sinsheimer & Associates were on brief, for appellee.

November 18, 2015

SELYA, Circuit Judge. This case requires us to inspect

the topography of the seldom-used exception to the Fourth

Amendment's warrant requirement for warrantless searches by police

officers exercising community caretaking functions. The case

arises in the context of a warrantless entry by the appellants

(Boston police officers) into a dwelling in the Brighton

neighborhood of Boston, Massachusetts. The police lacked probable

cause; the jury found that their intrusion into the dwelling was

not justified either by exigent circumstances or by any other

constitutionally acceptable rationale; and an award of damages

against the officer who had spearheaded the entry into the house

ensued.

The affected appellant, relying on the doctrine of

qualified immunity and the community caretaking exception, invites

us to set aside this verdict. After careful consideration, we

decline her invitation. We also reject the appellants' contention

that the district court's award of attorneys' fees is infirm

because the court failed to distinguish between "core" and "non-

core" work performed by the prevailing party's lawyers.

Accordingly, we affirm the judgment below.

I. BACKGROUND

On September 29, 2010, the Boston police received a

report of a robbery from Felix Augusto-Perez, the manager of a

restaurant located at 48 Harvard Avenue. Officer Elvin Aviles

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responded, and Augusto-Perez recounted that he had discovered a

black male removing money from a safe in the basement of the

restaurant. Augusto-Perez told Aviles that he had chased the thief

out of the back door of the restaurant and along Farrington Avenue

(which runs perpendicular to Harvard Avenue). The robber turned

left on Highgate Street (which runs roughly parallel to Harvard

Avenue) and then turned right, running into the back yard of a

house at 14 Farrington Avenue. Aviles radioed to other officers

that the suspect was last seen in the area of Farrington Avenue

and Highgate Street.

The appellants — Sergeant Mary Ann O'Neill and Officer

Joseph Hynnes — were among the officers who responded. Hynnes

testified that when he arrived at Farrington Avenue, an

unidentified witness reported seeing a black male running down a

walkway between 14 Farrington Avenue and 16 Farrington Avenue.

After receiving this information, Hynnes and his partner proceeded

down the walkway between the houses. They encountered O'Neill.

Though O'Neill's recollection at trial was hazy, she

recalled "a victim" pointing in the direction of 16 Farrington

Avenue and Hynnes telling her about what he had learned. O'Neill

then mounted the porch of the dwelling at 16 Farrington Avenue

(which faced the walkway). Looking through a glass pane on the

closed exterior door, she could see two open doors, the first

leading into the main living area and the second apparently leading

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into the cellar. O'Neill tried the knob of the exterior door and

found it unlocked. She then rang the bell, knocked on the door,

and called into the house, all to no avail. Hynnes told O'Neill

that he thought that he heard footsteps emanating from the second

floor of the dwelling.1

O'Neill called for a canine unit. After a wait of at

least ten minutes, the canine unit arrived and a search of the

residence ensued. The only person inside was the owner, plaintiff-

appellee Scott Matalon, who had been sleeping in an upstairs

bedroom. Displeased by the intrusion, the plaintiff had words

with the officers and was eventually arrested by Hynnes.

After the plaintiff's acquittal on criminal charges

resulting from his arrest, he invoked 42 U.S.C. § 1983 and sued

O'Neill, Hynnes, and the City of Boston in the federal district

court. As relevant here, he charged O'Neill with violating his

1A few of the facts recounted to this point — the unidentified

witness's statements to Hynnes, O'Neill's claim that efforts were

made to announce the presence of officers before entering the

dwelling, and Hynnes's statement that he had heard footsteps —

were disputed at trial. The district court held that these facts

were not part of the factual mosaic to be considered in ruling on

O'Neill's motion for judgment as a matter of law. See Matalon v.

O'Neill (Matalon I), No. 13-10001, 2015 WL 1137808, at *2 nn.2-3

(D. Mass. Mar. 13, 2015). That ruling was correct. See, e.g.,

Iacobucci v. Boulter, 193 F.3d 14, 23 (1st Cir. 1999) (explaining

that when reviewing a claim of qualified immunity post-trial, the

evidence must be construed in the light most favorable to the

jury's verdict). Nevertheless, we include them here, as they do

not affect the result of the qualified immunity analysis.

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civil rights through an unreasonable search and charged Hynnes

with violating his civil rights through the use of excessive force.

Following a four-day trial, the jury found for the plaintiff on

both of these claims and awarded him $50,000 in damages.2

At the close of all the evidence, O'Neill moved for

judgment as a matter of law based on qualified immunity and the

community caretaking exception to the Fourth Amendment's warrant

requirement. The court reserved decision and O'Neill renewed the

motion post-verdict. She also moved for a new trial, positing

instructional error. The district court denied both of her

motions. See Matalon v. O'Neill (Matalon I), No. 13-10001, 2015

WL 1137808, at *8 (D. Mass. Mar. 13, 2015).

Having prevailed, the plaintiff moved for attorneys'

fees and costs. See 42 U.S.C. § 1988(b). The district court

granted the motion, awarding the plaintiff the sum of $134,642.35.

See Matalon v. O'Neill (Matalon II), No. 13-10001, 2015 WL 1206343

(D. Mass. Mar. 17, 2015). This timely appeal ensued.

II. ANALYSIS

O'Neill attacks the denial of both her motion for

judgment as a matter of law and her motion for a new trial. O'Neill

2Hynnes has not challenged the excessive force verdict, so

we omit any discussion of the facts peculiar to that claim.

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and Hynnes jointly attack the amount of the fee award. We discuss

these claims of error sequentially.

A. Judgment as a Matter of Law.

We review the denial of a motion for judgment as a matter

of law de novo, viewing the evidence in the light most hospitable

to the jury's verdict and drawing all reasonable inferences in

favor of that verdict. See Fresenius Med. Care Holds., Inc. v.

United States, 763 F.3d 64, 67-68 (1st Cir. 2014). In conducting

this review, we are not bound by the lower court's conclusions of

law but, rather, may affirm on any basis made manifest by the

record. See Peguero-Moronta v. Santiago, 464 F.3d 29, 34 (1st

Cir. 2006); see also InterGen N.V. v. Grina, 344 F.3d 134, 141

(1st Cir. 2003).

At its core, qualified immunity is a judge-made doctrine

that maintains a delicate equilibrium between "two important

interests — the need to hold public officials accountable when

they exercise power irresponsibly and the need to shield officials

from harassment, distraction, and liability when they perform

their duties reasonably." Pearson v. Callahan, 555 U.S. 223, 231

(2009). To that end, qualified immunity shields government

officials "from liability for civil damages insofar as their

conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). This

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construct "gives government officials breathing room to make

reasonable but mistaken judgments about open legal questions,"

Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2085 (2011), while

simultaneously exposing to liability officials who — from an

objective standpoint — should have known that their actions

violated the law, see Pagán v. Calderón, 448 F.3d 16, 31 (1st Cir.

2006).

Examining a claim of qualified immunity typically

requires a two-step analysis. At the first step, an inquiring

court must explore "whether the facts that a plaintiff has alleged

or shown make out a violation of a constitutional right." Pearson,

555 U.S. at 232 (citations omitted). At the second step, the court

must determine "whether the right at issue was 'clearly

established' at the time of defendant's alleged misconduct." Id.

(quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)); see Haley v.

City of Boston, 657 F.3d 39, 47 (1st Cir. 2011). The court need

not engage in this two-step pavane sequentially, but may alter the

choreography in the interests of efficiency. See Pearson, 555

U.S. at 236; Haley, 657 F.3d at 47. This point is salient here,

as O'Neill confines her appeal of the verdict to the question of

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whether the governing law was clearly established at the time of

the search.3

This inquiry demands its own two-part analysis. First,

we must focus "on the clarity of the law at the time of the alleged

civil rights violation." Maldonado v. Fontanes, 568 F.3d 263, 269

(1st Cir. 2009). Such an assessment "turns on whether the contours

of the relevant right were clear enough to signal to a reasonable

official that his conduct would infringe that right." MacDonald

v. Town of Eastham, 745 F.3d 8, 12 (1st Cir. 2014). Once that

half of the inquiry is complete, we must appraise the facts of the

case to determine "whether a reasonable defendant would have

understood that his conduct violated the plaintiff['s]

constitutional rights." Maldonado, 568 F.3d at 269. In making

this appraisal, it is not necessary that the particular factual

scenario has previously been addressed and found unconstitutional:

"officials can still be on notice that their conduct violates

established law even in novel factual circumstances." Hope v.

Pelzer, 536 U.S. 730, 741 (2002).

In the case at hand, the background principle of law is

the Fourth Amendment, which shields individuals from "unreasonable

searches and seizures." U.S. Const. amend. IV. It is common

3 The plaintiff asserts that O'Neill has waived her qualified

immunity claim. Because the claim is easily resolved on the

merits, we have no occasion to test this assertion.

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ground that a man's home is his castle and, as such, the home is

shielded by the highest level of Fourth Amendment protection. See

United States v. Martins, 413 F.3d 139, 146 (1st Cir. 2005). Thus

the law, at the time of the search, was clearly established that

"[a] warrantless police entry into a residence is presumptively

unreasonable unless it falls within the compass of one of a few

well-delineated exceptions" to the Fourth Amendment's warrant

requirement. United States v. Romain, 393 F.3d 63, 68 (1st Cir.

2004).

O'Neill attempts to seek refuge in one of the lesser

known of these exceptions: the community caretaking exception.

This exception has its genesis in the Supreme Court's decision in

Cady v. Dombrowski, 413 U.S. 433 (1973). There, the Court examined

a warrantless search of a car that had been towed following a

traffic accident to secure a gun believed to be in the vehicle.

See id. at 436-37. The Court held that the search was reasonable

and did not violate the Fourth Amendment as the officers were

engaged in "community caretaking functions." Id. at 441.

Since Cady, the community caretaking exception has

evolved into "a catchall for the wide range of responsibilities

that police officers must discharge aside from their criminal

enforcement activities." United States v. Rodriguez-Morales, 929

F.2d 780, 785 (1st Cir. 1991). The case law concerning community

caretaking functions most often has involved actions by police

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officers with respect to motor vehicles. See, e.g., Cady, 413

U.S. at 441; Rodriguez-Morales, 929 F.2d at 785. The doctrine's

applicability has been far less clear in cases involving searches

of the home. See, e.g., United States v. Tibolt, 72 F.3d 965, 969

n.2 (1st Cir. 1995) (leaving this question open); Commonwealth v.

Entwistle, 973 N.E.2d 115, 127 n.8 (Mass. 2012) (same); see also

MacDonald, 745 F.3d at 13 (collecting cases and noting divergence

of views among courts that have grappled with this question).

Although we do not decide the question, we assume, favorably to

O'Neill, that the community caretaking exception may apply to

warrantless residential searches.

Even on this favorable assumption, O'Neill's claim

founders. In MacDonald — the case upon which O'Neill primarily

relies — local police responded to a telephone call from a person

concerned that her neighbor's door was open though he was not home.

See id. at 10-11. Unable to contact the resident, the police

entered the home and, once inside, found evidence of marijuana

cultivation. See id. at 11. We concluded that the officers were

entitled to qualified immunity because their entry into the home

was arguably within the scope of the community caretaking

exception. See id. at 15.

Wresting from their contextual moorings our statements

in MacDonald that the doctrine was "nebulous" and surrounded by

"rampant uncertainty," id. at 14, O'Neill submits that this lack

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of certitude shields her actions. But this uncertainty does not

assist O'Neill's cause: while the parameters of the community

caretaking exception are nebulous in some respects (such as whether

the exception applies at all to residential searches), the

heartland of the exception is reasonably well defined. Some

attempts to invoke the exception plainly fall outside this

heartland. This is such a case. As we explain below, a reasonable

officer standing in O'Neill's shoes should have known that her

warrantless entry was not within the compass of the community

caretaking exception and, thus, that her intrusion into the

plaintiff's home abridged his constitutional rights.

The community caretaking exception is distinguished from

other exceptions to the Fourth Amendment's warrant requirement

because it "requires a court to look at the function performed by

a police officer" when the officer engages in a warrantless search

or seizure. Hunsberger v. Wood, 570 F.3d 546, 554 (4th Cir. 2009).

The Cady Court took pains to define community caretaking functions

as being "totally divorced from the detection, investigation, or

acquisition of evidence relating to the violation of a criminal

statute." 413 U.S. at 441. Cases that do not satisfy this

requirement fall outside the heartland of the community caretaking

exception, and it is therefore not surprising that the courts that

have addressed the exception have stressed the separation between

the police's community caretaking functions and the normal work of

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criminal investigation. See, e.g., Hunsberger, 570 F.3d at 554;

United States v. Quezada, 448 F.3d 1005, 1007 (8th Cir. 2006);

United States v. Williams, 354 F.3d 497, 508 (6th Cir. 2003);

People v. Ray, 981 P.2d 928, 938 (Cal. 1999) (plurality opinion);

People v. Davis, 497 N.W.2d 910, 920 (Mich. 1993); State v. White,

168 P.3d 459, 466-67 (Wash. Ct. App. 2007); cf. State v. Deneui,

775 N.W.2d 221, 241 (S.D. 2009) (concluding that, even though the

initial arrival at the home was connected to a potential criminal

investigation, the entry into the home was reasonable because the

officers entered the home "not as part of a criminal investigation,

but in pursuance of their community caretaking function").

Here, the record establishes beyond hope of

contradiction that O'Neill was engaged in a quintessential

criminal investigation activity — the pursuit of a fleeing felon

in the immediate aftermath of a robbery — when she ordered the

search of the plaintiff's home. O'Neill testified at trial that

she arrived at the plaintiff's residence after being directed there

by a witness to the crime and that she believed the suspect had

fled into the dwelling. Thus, her actions fall far beyond the

borders of the heartland of the community caretaking exception.

In an effort to deflect this reasoning, O'Neill points

to our decision in Rodriguez-Morales, in which we noted that "the

coexistence of investigatory and caretaking motives will not

invalidate the [officer's challenged act]." 929 F.2d at 787. But

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in Rodriguez-Morales we addressed a situation where officers were

engaged in an activity squarely within the heartland of the

community caretaking function — removing a car from the highway

when no occupant of the vehicle had a valid driver's license —

rather than a criminal investigation. See id. at 785. Seen in

this light, the quoted language signifies only that, once it has

been determined that a case falls within the heartland of the

community caretaking exception, the possible existence of mixed

motives will not defeat the officer's claim of entitlement to the

exception.

Rodriguez-Morales, like Cady and like our decision in

United States v. Coccia, 446 F.3d 233, 238 (1st Cir. 2006),

excludes criminal investigation activities from the purview of the

community caretaking exception. After all, we were careful to

explain in Rodriguez-Morales that the community caretaking

exception exists to provide a rubric for analyzing "the wide range

of responsibilities that police officers must discharge aside from

their criminal enforcement activities." 929 F.2d at 785 (emphasis

supplied). This mapping of the boundaries of the community

caretaking exception accords with the cartography of every other

circuit that has addressed the question.

In sum, the contours of both the plaintiff's right to

enjoy the sanctity of his home and the heartland of the community

caretaking exception were sufficiently clear to alert O'Neill that

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her plan of action — a warrantless entry — would infringe the

plaintiff's constitutional rights. Put another way, an

objectively reasonable officer should have known that a

warrantless entry into the plaintiff's home could not be effected

on the basis of the community caretaking exception. Though the

precise dimensions of the community caretaking exception are

blurred, that circumstance does not mean that every attempt to

resort to the exception must be regarded as arguable. See DeMayo

v. Nugent, 517 F.3d 11, 18 (1st Cir. 2008). What matters here is

that the exception is sufficiently defined to place O'Neill's

conduct well outside its heartland and, thus, to render qualified

immunity inapplicable.

We hasten to add that refusing to extend the community

caretaking exception to ongoing manhunts does not unduly cramp the

conduct of officers responding to potentially dangerous situations

in the course of a criminal investigation. After all, there is a

recognized exception to the warrant requirement for "exigent

circumstances," which applies when "there is such a compelling

necessity for immediate action as will not brook the delay of

obtaining a warrant." Fletcher v. Town of Clinton, 196 F.3d 41,

49 (1st Cir. 1999) (quoting United States v. Almonte, 952 F.2d 20,

22 (1st Cir. 1991)). Relevant scenarios include "(1) 'hot pursuit'

of a fleeing felon; (2) threatened destruction of evidence inside

a residence before a warrant can be obtained; (3) a risk that the

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suspect may escape from the residence undetected; or (4) a threat,

posed by a suspect, to the lives or safety of the public, the

police officers, or to herself." Hegarty v. Somerset County, 53

F.3d 1367, 1374 (1st Cir. 1995). Relatedly, a subset of the

exigent circumstances rubric covers "emergency aid." Within this

subset, "the police, in an emergency situation, may enter a

residence without a warrant if they reasonably believe that swift

action is required to safeguard life or prevent serious harm."

Martins, 413 F.3d at 147; see Brigham City v. Stuart, 547 U.S.

398, 403 (2006).

These well-established exceptions to the Fourth

Amendment's warrant requirement exist to permit the police to carry

out their law enforcement duties in a manner that recognizes the

need for quick and efficient responses to rapidly evolving

situations. See Martins, 413 F.3d at 146-47; Fletcher, 196 F.3d

at 49-50. Such doctrines provide ample leeway for police officers

(like O'Neill) who must from time to time respond to unforeseen

circumstances that arise in the course of criminal investigations.

The jury here was instructed on the exigent circumstances doctrine.

It found no exigency and returned a verdict for the plaintiff on

the unreasonable search claim.

We summarize succinctly. In the circumstances of this

case — where the officer was indisputably engaged in an ongoing

criminal investigation when the warrantless search occurred — the

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community caretaking exception does not apply. There was no lack

of clarity on this point at the time the search took place.

Consequently, a reasonable officer in O'Neill's position should

have known that her intrusion into the plaintiff's home would

transgress his constitutional rights. She was, therefore, not

entitled to qualified immunity, and the district court

appropriately denied O'Neill's motion for judgment as a matter of

law.

B. Jury Instructions.

In a related vein, O'Neill asserts that she was entitled

to a jury instruction on the community caretaking exception. Her

proposed instruction is reprinted in the margin.4 The district

court disagreed, and so do we.

4 O'Neill's proposed instruction is as follows:

Another exception to the warrant requirement is the

community caretaking function. This exception applies in

cases of pure emergency, where police entry of a dwelling is

effected solely to avert a dangerous situation that threatens

life or safety, and not for criminal investigatory purposes.

In such cases, neither a warrant, nor probable cause is needed

to enter. The community caretaking exception recognizes that

the police perform a multitude of community functions apart

from investigating crime. In performing this community

caretaking role, police are expected to aid those in distress,

combat actual hazards, prevent potential hazards from

materializing and provide an infinite variety of services to

preserve and protect public safety. The role of a police

officer includes preventing violence and restoring order, not

simply rendering first aid to casualties. As long as entrance

in a dwelling pursuant to the community caretaking function

is not a mere ploy for investigation, the coexistence of

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We afford plenary review to a district court's refusal

to instruct on a particular claim or defense. See Shervin v.

Partners Healthcare Sys., Inc., ___ F.3d ___, ___ (1st Cir. 2015)

[No. 14-1651, slip op. at 50]; Butynski v. Springfield Term. Ry.

Co., 592 F.3d 272, 276 (1st Cir. 2010). Refusal "constitutes

reversible error only if the requested instruction was (1) correct

as a matter of substantive law, (2) not substantially incorporated

into the charge as rendered, and (3) integral to an important point

in the case." United States v. McGill, 953 F.2d 10, 13 (1st Cir.

1992).

The court below declined to give O'Neill's desired

instruction on two grounds. First, the court concluded that the

instruction was incorrect as a matter of law. See Matalon I, 2015

WL 1137808, at *6-7. Second, the court concluded that the

instruction lacked a sufficient foundation in the evidence. See

id. at *8. We believe that the court's appraisal was accurate in

both respects.

To begin, the proposed instruction stated only that,

under the community caretaking exception, "neither a warrant, nor

probable cause is needed to enter" a dwelling. The proposed

instruction was off-base because it omitted any description of the

investigatory and caretaking motives will not invalidate the

search (citations and internal quotation marks omitted).

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standard by which the jury was to evaluate O'Neill's search under

the community caretaking exception.5 This omission created two

problems: it not only rendered the requested instruction legally

incorrect but also threatened to mislead the jury in its

application of the law to the facts. See United States v.

DeStefano, 59 F.3d 1, 4 (1st Cir. 1995).

At any rate, a jury instruction is proper only if it is

warranted by the evidence introduced at trial. See Kelliher v.

Gen. Transp. Servs., Inc., 29 F.3d 750, 754 (1st Cir. 1994). The

evidence in this case neither required nor supported a community

caretaking instruction.

Here, the record shows with conspicuous clarity that the

police were engaged in a manhunt at the time when O'Neill embarked

on the search. Thus, a reasonable jury could not have found that

the officers' entry into the plaintiff's home was carried out in

pursuance of a community caretaking function (or, in O'Neill's

5In ruling on O'Neill's post-trial motion, the district court

gave O'Neill the benefit of the doubt and treated the proposed

instruction as if it had incorporated a reasonable suspicion

standard. See Matalon I, 2015 WL 1137808, at *6-7. But even this

generous reading of the proposed instruction does not save the

day: the case law has never suggested that reasonable suspicion —

a standard with a defined meaning in Fourth Amendment

jurisprudence, see, e.g., Martins, 413 F.3d at 149 — is the

appropriate lens through which the community caretaking exception

should be analyzed. Rather, the community caretaking cases have

spoken of "reasonableness," simpliciter. See, e.g., Rodriguez-

Morales, 929 F.2d at 786-87.

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proposed language, that the entry "was effected solely to avert a

dangerous situation" unrelated to "criminal investigatory

purposes").6

C. Attorneys' Fees.

As said, the district court awarded attorneys' fees and

costs to the prevailing plaintiff in the amount of $134,642.35.

This award reflected the plaintiff's successful prosecution of his

unreasonable search and excessive force claims. The appellants

challenge this award. Our review is for abuse of discretion. See

Gay Officers Action League v. Puerto Rico (GOAL), 247 F.3d 288,

292 (1st Cir. 2001). Absent a material error of law, we will not

set aside a fee award unless "it clearly appears that the trial

court ignored a factor deserving significant weight, relied upon

an improper factor, or evaluated all the proper factors (and no

improper ones), but made a serious mistake in weighing them." Id.

at 292-93.

Under the Fees Act, 42 U.S.C. § 1988(b), courts have

discretion to award prevailing plaintiffs reasonable attorneys'

6Although some trial testimony suggested that O'Neill may have

entertained a subjective concern about the safety of possible

occupants of the dwelling, her subjective intent is not

determinative of the function that she was performing when she

entered the house. And in all events, an objective view of the

record does not allow a finding that such a concern was the sole

— or even the principal — reason for her decision to enter the

dwelling.

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fees in civil actions brought pursuant to 42 U.S.C. § 1983. The

lodestar approach is the method of choice for calculating fee

awards. See Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 550-

51 (2010); Coutin v. Young & Rubicam P.R., Inc., 124 F.3d 331, 337

(1st Cir. 1997). Under this lodestar approach, a district court

first "calculate[s] the number of hours reasonably expended by the

attorneys for the prevailing party, excluding those hours that are

'excessive, redundant, or otherwise unnecessary.'" Cent. Pension

Fund of the Int'l Union of Operating Eng'rs & Participating Emp'rs

v. Ray Haluch Gravel Co., 745 F.3d 1, 5 (1st Cir. 2014) (quoting

Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). The court then

determines "a reasonable hourly rate or rates — a determination

that is often benchmarked to the prevailing rates in the community

for lawyers of like qualifications, experience, and competence."

Id. Multiplying the results of these two inquiries yields the

lodestar amount. The court may then adjust the potential award

based on factors not captured in the lodestar calculation. See

Hensley, 461 U.S. at 434 & n.9; Coutin, 124 F.3d at 337.

At times, we have indicated our approval of fee awards

that set two separate hourly rates for a particular attorney — one

for "core" tasks like "legal research, writing of legal documents,

court appearances, negotiations with opposing counsel, monitoring,

and implementation of court orders" and a lower one for "non-core"

tasks, which are "less demanding," such as "letter writing and

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telephone conversations." Brewster v. Dukakis, 3 F.3d 488, 492

n.4 (1st Cir. 1993). The plaintiff's fee application in this case

assigned a single rate to each attorney, and the appellants opposed

that application on the ground that some of the time billed was

for non-core work. Those non-core activities, the appellants said,

should be billed at two-thirds the rate applicable to core

activities.

The district court demurred, see Matalon II, 2015 WL

1206343, at *1, and used a single rate for each of the plaintiff's

lawyers (although these rates were less munificent than those that

the plaintiff had suggested). The appellants label this refusal

an abuse of discretion. Both the latitude ceded to district courts

in making fee awards and the flexibility inherent in the lodestar

approach counsel against the appellants' contention.

As to the former, we frequently have acknowledged the

special coign of vantage of "the trial judge, whose intimate

knowledge of the nuances of the underlying case uniquely positions

him to construct a condign award." GOAL, 247 F.3d at 292; see

Brewster, 3 F.3d at 492. Deferring to the reasonable judgment of

the trial court in this area recognizes that the "determination of

the extent of a reasonable fee necessarily involves a series of

judgment calls." Lipsett v. Blanco, 975 F.2d 934, 937 (1st Cir.

1992). In the same spirit, we traditionally have refrained from

prescribing hard and fast rules for fee awards in order to ensure

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that district courts are not left "to drown in a rising tide of

fee-generated minutiae." United States v. Metro. Dist. Comm'n,

847 F.2d 12, 16 (1st Cir. 1988).

Flexibility is a hallmark of the lodestar approach. See

id. In attempting to guide this flexibility, we have stated that

"clerical or secretarial tasks ought not to be billed at lawyers'

rates, even if a lawyer performs them." Lipsett, 975 F.2d at 940.

By the same token, we have indicated that certain components of

fee awards (such as work performed in preparing and litigating fee

petitions) may be calculated at discounted rates due to the

comparative simplicity of the task. See, e.g., Torres-Rivera v.

O'Neill-Cancel, 524 F.3d 331, 340 (1st Cir. 2008). But these are

not hard-and-fast rules. Rather, they are expressions of the more

general principle that calculating a reasonable fee is, for the

most part, an assessment of the difficulty of the work involved

and the time reasonably expended. See Coutin, 124 F.3d at 337

n.3. Such expressions were never meant to manifest an insistence

that a district court adopt certain mechanistic procedures in

calculating the lodestar.

The bottom line is that there are a variety of ways in

which a trial court can fashion the lodestar. Distinguishing

between core and non-core tasks is one of those ways. But we have

never imposed a rigid requirement that a district court employ a

core/non-core analysis when adjudicating a fee petition — and we

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decline to impose such a requirement today. While the core/non-

core distinction may be a useful tool for fashioning a reasonable

fee in some cases, the choice of whether to employ that distinction

is within the sound discretion of the district court. As long as

the court uses permissible techniques and explains what it has

done, a reviewing court's primary focus is on the reasonableness

of the award. See Bogan v. City of Boston, 489 F.3d 417, 430 (1st

Cir. 2007).

Here, the court elected to employ an across-the-board

rate cut, rather than using two-tiered rates to determine the

lodestar amount. In the circumstances of this case, that

methodologic choice was not an abuse of discretion. See, e.g.,

Cent. Pension, 745 F.3d at 5-8 (upholding fee award which did not

distinguish between core and non-core functions); United States v.

One Star Class Sloop Sailboat, 546 F.3d 26, 40-42 (1st Cir. 2008)

(same); Andrade v. Jamestown Hous. Auth., 82 F.3d 1179, 1189-91

(1st Cir. 1996) (same).

The appellants' back-up argument is that the district

court's rationale — which did not explicitly take into account the

core/non-core distinction — was inadequate to support the fee

award. This is the same old whine in a different bottle, and the

argument need not detain us.

The court below made pellucid that it intended to

"follow[] the lodestar approach." Matalon II, 2015 WL 1206343, at

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*1. It noted that the appellants made "no claim that Plaintiff's

counsel seeks compensation for non-attorney tasks at attorney

rates." Id. This is simply another way of saying that, in the

court's view, the billed time did not include the sort of "clerical

or secretarial tasks" that we have indicated should ordinarily be

charged at lower rates. Lipsett, 975 F.2d at 940. Given this

circumstance, it was reasonable for the court to conclude that it

could shape the lodestar by using a single hourly rate for each

attorney.

Except for the district court's decision not to employ

the core/non-core distinction, the appellants do not challenge on

appeal either the court's methodology or its judgment calls. We

already have explained why the court was not required to use the

core/non-core distinction. Viewed in this light, our primary focus

must be on the reasonableness of the fee award and the clarity of

the district court's explanation, that is, whether "the order

awarding fees, read against the backdrop of the record as a whole

. . . expose[s] the district court's thought process and show[s]

the method and manner underlying its decisional calculus." Coutin,

124 F.3d at 337.

In this case, the court methodically wended its way

through the fee application: it excluded some entries contained in

the application; reduced the proposed hourly rates for two of the

plaintiff's attorneys; set a rate equal to a paralegal for a

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fledgling attorney; and cut the lodestar amount by five percent to

account for claims on which the plaintiff had been unsuccessful.

See Matalon II, 2015 WL 1206343, at *1-2. Given the flexibility

inherent in the lodestar approach and the wide discretion vested

in a fee-setting court, we conclude that the lodestar was

constructed in an acceptable manner and that the resultant fee

fell within the universe of reasonable awards. No more is

exigible.

There is one loose end. While this appeal was pending,

the plaintiff moved for an order of remand to the district court

so that court might fashion an award of attorneys' fees for work

done on appeal. We direct the clerk of court to deny that motion

without prejudice. Applications for awards of fees and expenses

on appeal should be submitted within 30 days following the entry

of a final judgment in this court. See 1st Cir. R. 39.1(b). We

may then decide whether to resolve the fee application ourselves

or remand the matter to the district court. A remand motion, like

this one, filed prior to the entry of final judgment is premature.

III. CONCLUSION

We need go no further. For the reasons elucidated above,

the judgment is

Affirmed.

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