Filed: Mar. 03, 2015
Latest Update: Mar. 02, 2020
Summary: Case: 14-13107 Date Filed: 03/03/2015 Page: 1 of 11 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 14-13107 Non-Argument Calendar _ D.C. Docket No. 1:12-cv-01088-VEH ASHLEY L. MANER, Plaintiff-Appellant, versus LINKAN LLC, d.b.a. Fugi Japanese Cuisine, Defendant-Appellee. _ Appeal from the United States District Court for the Northern District of Alabama _ (March 3, 2015) Before HULL, MARCUS and JULIE CARNES, Circuit Judges. PER CURIAM: Case: 14-13107 Dat
Summary: Case: 14-13107 Date Filed: 03/03/2015 Page: 1 of 11 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 14-13107 Non-Argument Calendar _ D.C. Docket No. 1:12-cv-01088-VEH ASHLEY L. MANER, Plaintiff-Appellant, versus LINKAN LLC, d.b.a. Fugi Japanese Cuisine, Defendant-Appellee. _ Appeal from the United States District Court for the Northern District of Alabama _ (March 3, 2015) Before HULL, MARCUS and JULIE CARNES, Circuit Judges. PER CURIAM: Case: 14-13107 Date..
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Case: 14-13107 Date Filed: 03/03/2015 Page: 1 of 11
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-13107
Non-Argument Calendar
________________________
D.C. Docket No. 1:12-cv-01088-VEH
ASHLEY L. MANER,
Plaintiff-Appellant,
versus
LINKAN LLC,
d.b.a. Fugi Japanese Cuisine,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(March 3, 2015)
Before HULL, MARCUS and JULIE CARNES, Circuit Judges.
PER CURIAM:
Case: 14-13107 Date Filed: 03/03/2015 Page: 2 of 11
Plaintiff Ashley L. Maner brought claims of pregnancy discrimination and
retaliation under Title VII against her former employer, Defendant Lincan, LLC.
After a jury verdict in her favor, Plaintiff Maner appeals the district court’s order
awarding her attorneys’ fees and costs in an amount less than she requested. On
appeal, Maner argues that the district court abused its discretion by awarding her
only $38,558.31 out of the requested $92,449.88 in attorneys’ fees and costs. After
review, we affirm.
I. GENERAL PRINCIPLES
Under Title VII, the district court may, in its discretion, allow the prevailing
party to recover “a reasonable attorney’s fee” as part of the costs. 42 U.S.C.
§ 2000e-5(k). Generally, what constitutes a reasonable attorney’s fee is calculated
using the “lodestar” method, taking the number of hours reasonably expended on
the litigation multiplied by a reasonable hourly rate. Hensley v. Eckerhart, 461
U.S. 424, 433-34,
103 S. Ct. 1933, 1939-40 (1983); Cullens v. Ga. Dep’t of
Transp.,
29 F.3d 1489, 1491-92 (11th Cir. 1994) (applying the lodestar method of
calculating attorney’s fees in a Title VII case).
On appeal, Maner challenges both aspects of the district court’s lodestar
calculation. Specifically, Maner contends the district court incorrectly: (1)
excluded certain work from the total number of hours reasonably expended on the
2
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litigation; and (2) reduced the hourly rate charged by her lead attorney and his two
associates. We address each claim in turn.1
A. Hours Reasonably Expended on the Litigation
In ascertaining the number of hours reasonably expended on the litigation,
the district court should exclude any “excessive, redundant or otherwise
unnecessary” hours. Norman v. Hous. Auth. of City of Montgomery, 836 F.2d
1292, 1301 (11th Cir. 1988). The district court also has the discretion to exclude
work performed on unrelated actions.
Hensley, 461 U.S. at 437 n.12, 103 S. Ct. at
1941. The fee applicant bears the burden to establish that the hours for which fees
are sought were “reasonably expended on the litigation.” ACLU of Ga. v. Barnes,
168 F.3d 423, 435 (11th Cir. 1999) (quotation marks omitted). To carry that
burden, fee counsel must submit time records showing “time expenditures . . . with
sufficient particularity so that the district court can assess the time claimed for each
activity . . . .”
Id. at 427 (quoting
Norman, 836 F.2d at 1303).
Here, the district court did not abuse its discretion in determining the number
of hours reasonably expended on the litigation. The district court found that
1
We review a district court’s order awarding attorney’s fees for an abuse of discretion,
examining questions of law de novo and findings of fact for clear error. Bivins v. Wrap It Up,
Inc., 548 F.3d 1348, 1351 (11th Cir. 2008). What constitutes a reasonable hourly rate is a
finding of fact subsidiary to the total award, and therefore is reviewed under the clearly
erroneous standard. ACLU v. Barnes,
168 F.3d 423, 436 (11th Cir. 1999). Because, the
computation of a fee award necessarily involves the exercise of judgment, however, the district
court’s factual findings are entitled to deference. Villano v. City of Boynton Beach,
254 F.3d
1302, 1305 (11th Cir. 2001).
3
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Maner’s attorneys reasonably expended 151.80 hours, rather than the claimed
272.90 hours, in litigating her Title VII claims. In doing so, the district court
thoroughly reviewed the billing sheets submitted by Maner’s attorneys, identified
the hours it was excluding and why using extensive notations, and then provided
further explanation for its actions in its memorandum order.
On appeal, Plaintiff Maner argues the district court should not have excluded
time her attorneys spent litigating matters related to her application for state
unemployment benefits. We disagree, as those hours concerned a discrete state
administrative proceeding and not her federal Title VII lawsuit. See id. at 436
(finding an abuse of discretion where the district court failed to exclude hours not
expended on the litigation). We, like the district court before us, are not persuaded
by Plaintiff Maner’s argument that those hours were “necessary” or “related” to
her federal litigation. Maner contends that both her state unemployment
compensation claim and her federal case involved whether her termination was
voluntary, and an adverse decision in the state administrative proceeding could
have resulted in issue preclusion in her federal lawsuit. Unreviewed state
administrative proceedings, however, do not have preclusive effect on federal Title
VII claims. University of Tenn. v. Elliott,
478 U.S. 788, 794-96,
106 S. Ct. 3220,
3224-25 (1986); Crapp v. City of Miami Beach,
242 F.3d 1017, 1021-22 (11th Cir.
2001). Thus, for purposes of her federal discrimination claims, it was not
4
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necessary to obtain a favorable decision from the state agency or to appeal the state
agency’s initial unfavorable decision.
Similarly, the district court did not err in excluding as unnecessary the hours
billed for her attorneys’ travel to and from the Anniston, Alabama, courthouse
during her three-day trial. Plaintiff’s attorneys lived in Birmingham, but travelled
back and forth to Anniston, Alabama. Although this Court has no precise rules for
compensating travel time, we have indicated that a fee applicant seeking to recover
expenses incurred for retaining non-local counsel generally “must show a lack of
attorneys practicing in that place who are willing and able to handle his claims.”
Barnes, 168 F.3d at 437 (involving issue of reasonable hourly rates for non-local
counsel). Plaintiff Maner made no attempt to make such a showing with respect to
Anniston, Alabama. As the district court explained, although it allowed mileage
for travel, it excluded the attorneys’ time (approximately $4,000) because they
elected to return to Birmingham each night rather than stay in a hotel in Anniston.
With a distance of approximately 60 miles between Anniston and Birmingham, the
attorneys’ trip took about an hour each way. Thus, billing for the attorneys’ travel
time was akin to billing for travel to work. We agree that, under the particular
factual circumstances, we cannot say the district court erred in determining that it
was not required to pass the Plaintiff attorneys’ travel time onto the Defendant.
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For the first time in her appeal brief, Plaintiff Maner contends that her
attorneys: (1) “used the driving time to confer together to discuss the trial’s
development and plan for subsequent trial activities,” which they also would have
done at a hotel; and (2) needed to return to their Birmingham law office each night
because “the district court requested that Maner’s counsel email by 9:00 p.m. each
night during the trial various materials including pinpoint citations and other
information relevant to arguments made at trial.”
The problem for Plaintiff Maner is that she has the burden to establish that
the travel time was expended on the litigation, but she does not point to any
evidence in the record to support her claim. See Barnes, 168 F.3d at 434-36. Time
entries submitted by Plaintiff Maner’s counsel do not indicate that the attorneys
performed any legal work while traveling. Rather, the time entries for each trial
day consist of lists of all the work performed and include notations such as,
“Travel to Anniston,” and “Return travel.” See
id. at 427 (requiring “sufficient
particularity” from attorney’s time records to show the hours are compensable).
Nor does counsel’s affidavit in support of the fee request provide the information
asserted in Plaintiff Maner’s appeal brief. With respect to whether an attorney’s
time is compensable, “unsupported assertions in a brief cannot substitute for
6
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evidence in the record.” Id. at 436. In short, Plaintiff Maner has not shown clear
error in the district court’s finding as to the number of hours reasonably expended.2
B. Reasonable Hourly Rate
We have defined a “reasonable hourly rate” as “the prevailing market rate in
the relevant legal community for similar services by lawyers of reasonably
comparable skills, experience, and reputation.” Norman, 836 F.2d at 1299. “The
general rule is that the ‘relevant market’ for purposes of determining the
reasonable hourly rate for an attorney’s services is the place where the case is
filed.”
Barnes, 168 F.3d at 437 (quotation marks omitted). The party seeking
attorneys’ fees bears the burden of establishing that the requested hourly rate is in
line with prevailing market rates.
Norman, 836 F.2d at 1299.
In establishing a reasonable hourly rate, the district court may rely on its
own expertise and where appropriate may also consider certain factors. Id. at
1299, 1304. These factors include: (1) the time and labor required; (2) the novelty
and difficulty of the questions; (3) the skill requisite to perform the legal service
properly; (4) the preclusion of other employment by the attorney due to acceptance
of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7)
time limitations imposed by the client or the circumstances; (8) the amount
2
The district court also excluded hours: (1) for work that was clerical in nature; (2) that
were duplicative of other credited hours; or (3) for which counsel provided insufficient detail to
discern the nature of the work. Maner has shown no reversible error with regard to these
exclusions.
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involved and the results obtained; (9) the experience, reputation, and ability of the
attorneys; (10) the “undesirability” of the case; (11) the nature and length of the
professional relationship with the client; and (12) awards in similar cases. Johnson
v. Ga. Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974).3
Once the lodestar figure has been calculated, there is a strong presumption
that the lodestar figure is a reasonable sum. Bivins, 548 F.3d at 1350. In some
instances, however, the district court may adjust the lodestar amount upwards, in
the case of exceptional results, or downwards, to account for only partial success.
Norman, 836 F.2d at 1302.
Here, Maner sought an hourly rate of $450 per hour for her lead counsel and
rates of $250 per hour and $225 per hour for the two associates who assisted him.
The district court determined that the reasonable hourly was $385 rate for lead
counsel and was $135 and $125 for his two associates. The district court’s finding
is not clearly erroneous.
The district court considered the experience of the three attorneys,
customary fees charged for similar work, and the Johnson factors before relying on
its own expertise, including its “own review of previous fee awards,” to select
these hourly rates. See Loranger v. Stierheim, 10 F.3d 776, 781 (11th Cir. 1994)
3
“Although [this] balancing test has since been displaced by the lodestar formula, we
have expressed our approval of district courts considering the Johnson factors in establishing a
reasonable hourly rate.” Loranger v. Stierheim, 10 F.3d 776, 781 n.6 (11th Cir. 1994).
8
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(explaining that the district court “is itself an expert on the question [of reasonable
hourly rates in the local market] and may consider its own knowledge and
experience . . . and may form an independent judgment either with or without the
aid of witnesses as to value” (quotation marks omitted)). In his affidavit, Maner’s
lead counsel averred that he normally billed his non-contingent clients at a rate of
$385 per hour, and his fee expert averred in her affidavit that the “prevailing
market rate in Alabama” for a plaintiff’s attorney handling similar cases was
between $225 and $550 per hour. The district court did not clearly err in setting
lead counsel’s rate at his normal billing rate of $385 and in the middle of the
expert’s range.
Lead counsel was the senior partner at his law firm, with over thirty years of
litigation experience, much of it in employment law. The two associates “working
under his direction,” however, were recent law school graduates with considerably
less experience. The associate who primarily worked on Maner’s federal case and
attended the July 2013 trial was a 2011 law school graduate.4 We note that neither
affidavit Maner submitted addressed the prevailing market rate in the Northern
District of Alabama (or Anniston) for a junior associate working under the
supervision of a senior partner. Considering the absence of such evidence, the
district court was within its discretion to rely upon its own expertise in setting the
4
This associate had 76.8 hours of time on the case; the second associate had only 3.5
hours of time on the case.
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associates’ reasonable hourly rates. See Norman, 836 F.2d at 1303 (explaining that
fee counsel must provide “specific and detailed evidence from which the court can
determine the reasonable hourly rate,” and, if there is a lack of such evidence, “the
court may make the award on its own experience”).
In sum, the district court did not err in calculating the lodestar figure, as its
determinations of the number of reasonably expended hours and the reasonable
hourly rates were both supported by the record. There is no merit to Maner’s
suggestion that the district court’s award of fees in an amount less than she
requested was an improper downward adjustment of the presumptively reasonable
lodestar amount. The district court based its fee award solely on its calculation of
the lodestar amount, expressly stating that no adjustment to the lodestar was
warranted. Accordingly, for all these reasons, we cannot say the district court
abused its discretion in awarding Maner $37,600 in attorney’s fees.
C. Costs
The district court may also award costs other than attorney’s fees to a
prevailing plaintiff. See 28 U.S.C. § 1920; Fed. R. Civ. P. 54(d)(1); Chapman v.
AI Transport, 229 F.3d 1012, 1038-39 (11th Cir. 2000) (en banc) (explaining that
Rule 54(d) creates a presumption that the prevailing party is awarded full costs).
In determining the costs to be awarded, the district court may tax as costs all
reasonable expenses incurred during the course of litigation, with the exception of
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routine office overhead. See Barnes, 168 F.3d at 438-39 (involving civil rights
litigation under § 1988). 5
Maner requested $2,262.38 in costs. The district court awarded $958.31,
however, because it excluded costs associated with litigating Maner’s state
unemployment compensation claim. As already noted, those expenses were not
reasonably incurred during the course of litigating Maner’s federal Title VII
lawsuit. The district court did not abuse its discretion in awarding costs.
AFFIRMED.
5
We review for abuse of discretion a district court’s decision to award costs, which
“occurs if the trial judge bases an award or denial upon findings of fact that are clearly
erroneous.” Mathews v. Crosby, 480 F.3d 1265, 1276 (11th Cir. 2007).
11
