Richard Miller v. Raytheon Company

REVISED JULY 30, 2013

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
No. 11-10586 May 2, 2013

Lyle W. Cayce
Clerk
RICHARD MILLER,

Plaintiff - Appellee Cross-Appellant

v.

RAYTHEON COMPANY,

Defendant - Appellant Cross-Appellee

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Consolidated with 11-10988

RICHARD MILLER,

Plaintiff - Appellant

v.

RAYTHEON COMPANY,

Defendant-Appellee

Appeals from the United States District Court
for the Northern District of Texas

Before JONES, GARZA, and PRADO, Circuit Judges.
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EDITH H. JONES, Circuit Judge:
A jury found that Raytheon Company (“Raytheon”) willfully violated the
Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., and
the Texas Commission on Human Rights Act (“TCHRA”), TEX. LAB. CODE
§ 21.001 et seq., by terminating Richard Miller (“Miller”) because of his age. The
district court denied Raytheon’s motion for judgment as a matter of law
(“JMOL”), substantially reduced the jury’s finding of $17 million in damages,
and awarded attorneys’ fees. Both parties appealed. We affirm the finding of
liability, affirm in part the award of liquidated damages, and vacate the
liquidated damages award for an enhanced pension because it was a future, not
past loss, vacate the damages for mental anguish, reject Miller’s issues on cross-
appeal, and remand for reconsideration of the front pay award.
I. Background
Miller worked for Raytheon or a predecessor company for almost three
decades in a variety of roles, primarily in supply chain management. In 2006,
Miller was moved to a stand-alone role working on special projects, where he
reported to Robert Lyells (“Lyells”). Miller initially performed well in his new
position, earning a “Meets Expectations” rating in March 2007. After failing to
meet some deadlines, however, Miller received a “Needs Improvement” rating
on his 2007 mid-year review.
Raytheon initiated a reduction in force (“RIF”) in early 2008. Like all
other managers, Lyells reviewed his employees for a possible headcount
reduction. Raytheon policy dictated that Lyells evaluate his employees,
subdivide them into “decisional units,” rank them based on a four-factor

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analysis, and develop a list of employees to recommend for reduction.
Lyells placed the then 53-year-old Miller and four other employees (ages
34, 49, 54, and 55) in decisional units that were considered for termination. A
46-year-old woman who worked in the same organization as Miller and had
similar job responsibilities was placed in a decisional unit that was not
considered for the RIF. Lyells testified that he recommended that Miller be
included in the layoff after determining that Miller’s job function was
non-essential and his duties could be absorbed by three other employees.
Although Miller was purportedly targeted for the RIF due to a budgetary
shortfall, at that time Miller’s job was neither charged to Lyells’s budget nor
costing his organization any money. The only employee in the RIF pool not
recommended for termination was the 34-year-old. Lyells offered that younger
employee retraining and identified a new task for her.
Because Miller had more than twenty years of service, Raytheon’s internal
Long Service Review Board (“LSRB”) reviewed Lyells’s lay off proposal. The
LSRB directed Human Resources Director Allen Reid and Lyells to search for job
opportunities for Miller. Lyells contacted colleagues in other groups at Raytheon
to determine whether there were any other positions that fit Miller’s skills. He
was told there were none, although Miller presented evidence at trial that he
was qualified for several positions. Based on the responses from Reid and Lyells,
the LSRB approved the layoff. Lyells and Reid terminated Miller at a meeting
on March 13, 2008. Miller and his wife testified that the layoff made Miller feel
“sucker-punched” and caused him chest pain, back pain, sleep disturbances, and
emotional problems.

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Miller used Raytheon’s internal job board and worked with the human
resources (“HR”) department to find a new job at Raytheon. On March 27, 2008,
Miller met with Amos Wilson from HR and complained that he would be unable
to get another job at Raytheon due to his “Needs Improvement” rating. Wilson
told Miller to apply for jobs at a lower salary grade and in a different group.
When Miller asked Wilson why he would not be considered for a job in the
supply chain group, Wilson simply responded, “Because you wouldn’t be
considered.” Miller applied for four jobs at Raytheon, but he was not re-hired.1
Miller filed claims for age discrimination against Raytheon in federal
district court under the ADEA and the TCHRA. His Complaint asserted that
Raytheon (1) terminated him because of his age; and (2) failed to consider, assist,
or place him in another job due to his age. At trial, however, the jury was only
asked whether Raytheon discharged Miller because of his age. The jury found
that Raytheon terminated Miller in willful violation of both statutes and
awarded $352,179 in back pay and $227,000 in lost pension benefits, both of
which were doubled as ADEA liquidated damages; $1 million in mental anguish
damages; and $15 million in punitive damages pursuant to TCHRA.
Raytheon filed motions for JMOL and a new trial. In denying the motion
for JMOL, the district court held that the evidence was sufficient to support the
jury’s findings; ruled that lost pension benefits were a proper element of back
pay rather than front pay; approved liquidated damages based on the jury’s
finding of willfulness; remitted the jury’s award of $1 million in mental anguish

1
In October 2008, Raytheon’s response to Miller’s EEOC charge incorrectly stated that
he had not applied for any other jobs at the company.

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damages to $100,000; declined to award punitive damages in order to prevent
a double recovery; and awarded Miller $186,628, approximately one year’s front
pay. The district court did not rule on Raytheon’s motion for a new trial. After
the district court entered judgment, Miller moved for $711,323 in attorneys’ fees.
The court granted the motion in part, reducing the number of hours and the
hourly rate for an award of $488,437.08. Both parties appealed.
II. Discussion
Raytheon argues that the district court erred in (1) denying JMOL because
the evidence was insufficient to support the jury’s finding of age discrimination
under the ADEA and TCHRA; (2) refusing to grant its motion for a new trial;
(3) concluding the evidence supported the jury’s finding of willful discrimination;
(4) allowing the jury to consider as back pay the loss of pension benefits set to
vest by the trial date; and (5) concluding that the evidence supported the jury’s
finding of mental anguish. In his cross-appeal, Miller argues that the district
court erred in (1) denying recovery for both liquidated damages under the ADEA
and punitive damages under the TCHRA; (2) concluding that the non-economic
damages cap under the TCHRA is constitutional according to Texas law;
(3) awarding front pay from the date of the verdict rather than from the date of
judgment; (4) denying prejudgment interest; and (5) reducing the attorneys’ fees.
We address each issue in turn.

A. Raytheon’s Claims

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1. Judgment as a Matter of Law
We review a district court’s denial of a motion for JMOL de novo, applying
the same standard as the district court. Goodner v. Hyundai Motor Co., Ltd.,
650 F.3d 1034, 1039 (5th Cir. 2011). “The jury’s verdict can only be overturned
if there is no legally sufficient evidentiary basis for a reasonable jury to find as
the jury did.” Guile v. United States, 422 F.3d 221, 225 (5th Cir. 2005) (internal
quotation omitted).
The ADEA and the TCHRA prohibit employers from discharging or
otherwise discriminating against any individual because of his or her age.
McClaren v. Morrison Mgmt. Specialists, Inc., 420 F.3d 457, 461 (5th Cir. 2005).
The familiar burden-shifting framework set forth in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973), applies to both statutes. Evans v.
City of Houston, 246 F.3d 344, 349 (5th Cir. 2001). Under this framework, the
employee carries the initial burden of establishing a prima facie case of age
discrimination. Machinchick v. PB Power, Inc., 398 F.3d 345, 350 (5th Cir.
2005). If he succeeds, the burden shifts to the employer to provide a legitimate,
nondiscriminatory reason for terminating employment. Id. If the employer
satisfies this burden, the burden shifts back to the employee to prove either that
the employer’s proffered reason was not true—but was instead a pretext for age
discrimination—or that, even if the employer’s reason is true, he was terminated
because of his age. Gross v. FBL Fin. Servs, Inc., 557 U.S. 167, 180, 129 S. Ct.
2343, 2352 (2009).2 “[W]hen, as here, a case has been fully tried on its merits,

2
The district court submitted the question of Raytheon’s liability under TCHRA as
whether age was a “motivating factor” in its decision. Because Raytheon does not contest this

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we do not focus on the McDonnell Douglas burden-shifting scheme.” Smith v.
Berry Co., 165 F.3d 390, 394 (5th Cir. 1999). Instead, we inquire whether the
record contains sufficient evidence to support the jury’s finding of age
discrimination. Id.
At trial, Miller presented undisputed evidence that Raytheon made
erroneous statements in its EEOC position statement. Miller was told not to
apply for jobs in supply chain management and was not selected for a new job
at Raytheon, despite Raytheon’s policy of searching “every corner of the earth”
and “exhausting all opportunities to place the individual” before releasing an
employee pursuant to a RIF. Although Raytheon emphasizes that these actions
occurred after Miller’s termination, the jury was entitled to view them as
circumstantial evidence of discrimination. Norris v. Hartman Specialty Stores,
Inc., 913 F.2d 253, 256 (5th Cir. 1990); see also Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133, 147, 120 S. Ct. 2097, 2108 (2000) (“In appropriate
circumstances, the trier of fact can reasonably infer from the falsity of [an]
explanation that the employer is dissembling to cover up a discriminatory
purpose.”). Further, Miller presented evidence that at least two similarly-skilled
younger employees (ages 34 and 46) were not terminated despite being eligible
for the RIF. In totality, this and other evidence adduced by Miller is sufficient
for the jury to disbelieve Raytheon’s argument that Miller was treated the same
as younger employees, which is circumstantial evidence of age discrimination.
Uffelman v. Lone Star Steel Co., 863 F.2d 404, 408 (5th Cir. 1989). It is also

submission on appeal, we have no occasion to examine the propriety of this decision. The jury
held for Miller.

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undisputed that 77% of the employees laid off in supply chain management were
at least 48 years old.
Considered in isolation, we agree with Raytheon that each category of
evidence presented at trial might be insufficient to support the jury’s verdict.
But based upon the accumulation of circumstantial evidence and the credibility
determinations that were required, we conclude that “reasonable men could
differ” about the presence of age discrimination. Boeing Co. v Shipman,
411 F.2d 365, 374 (5th Cir. 1969) (en banc), overruled in part on other grounds,
Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir. 1997) (en banc).
Whether or not this court would have reached the same result, the Boeing
standard requires affirmance of the jury verdict. Smith v. Santander, 703 F.3d
316, 318 (5th Cir. 2012).
2. Motion for a New Trial
The district court did not rule on Raytheon’s alternative motion for a new
trial. A motion for a new trial not expressly ruled on is considered to have been
denied. Performance Autoplex II, Ltd. v. Mid-Continent Gas. Co., 322 F.3d 847,
862 (5th Cir. 2003). The denial of a motion for a new trial by the district court
“will be affirmed unless there is a clear showing of an absolute absence of
evidence to support the jury’s verdict.” Rivera v. Union Pacific R. Co., 378 F.3d
502, 506 (5th Cir. 2004). For the reasons just stated, and the fact that our
“standard of review in this situation is more deferential than our review of the
denial of a motion for [JMOL],” DP Solutions, Inc. v. Rollins, Inc., 353 F.3d 421,
431 (5th Cir. 2003), Raytheon’s arguments for a new trial lack merit.
3. Willful Discrimination under ADEA

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Raytheon contends that the district court erred by denying its motion for
judgment as a matter of law on this issue of willfulness. A violation of the ADEA
is willful, and liquidated damages may be awarded, when an employer must
have “kn[own] or show[n] reckless disregard for the matter of whether its
conduct was prohibited by the ADEA.” Trans World Airlines, Inc. v. Thurston,
469 U.S. 111, 126, 105 S. Ct. 613, 624 (1985); 29 U.S.C. § 626(b). This standard
applies to liability findings based on a company’s policy, as in Thurston, or its
decisions concerning specific individuals. Hazen Paper Co. v. Biggins, 507 U.S.
604, 617, 113 S. Ct. 1701, 1709 (1993). This court has “upheld jury findings of
willfulness when a jury’s finding of intentional violation of the ADEA necessarily
implied a finding that the employer’s proffered explanation for the adverse
employment action was pretextual.” Tyler v. Union Oil Co. of Cal., 304 F.3d 379,
398 (5th Cir. 2002); see West v. Nabors Drilling USA, Inc., 330 F.3d 379, 391-92
(5th Cir. 2003). On the other hand, we have overturned jury verdicts finding
willfulness where persuaded that no reasonable jury could have found that an
employer had knowingly or recklessly disregarded the ADEA. See, e.g., Russell
v. McKinney Hosp. Venture, 235 F.3d 219, 230 (5th Cir. 2000). The district court,
having observed the trial and carefully reviewed the evidence, concluded that
the facts here are “strikingly similar” to those in Russell. The court, however,
applied West, rather than Russell, on the basis that West appears to require
liquidated damages for willful violations unless an employer “incorrectly but in
good faith and non-recklessly believes that the statute permits a particular age-
based decision.” West, 330 F.3d at 391.
We cordially disagree with the district court’s approach to this extent:

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West should not be read either to contradict Russell, or to artificially broaden the
traditional scope of “knowing” and “reckless disregard” of the law, or, in the end
to conflict with Hazen, which stated: “It is not true that an employer who
knowingly relies on age in reaching a decision invariably commits a knowing or
reckless violation of the ADEA.” Hazen, 507 U.S. at 617, 113 S. Ct. at 1709. As
Hazen, and discrimination law in general, emphasizes, these cases are all fact-
sensitive and individualistic. Consequently, courts must heed Hazen’s forecast
that the Supreme Court “continue[s] to believe that the ‘knowing or reckless
disregard standard’ will create two tiers of liability across the range of ADEA
cases.” Id.
This is a close case, as the district court understood, because it is
undisputed that Raytheon had to undertake a reduction in force and that it
instituted facially age-neutral policies and processes according to which a
nondiscriminatory basis for Miller’s termination could be justified. Following
facially neutral RIF procedures, however, does not necessarily insulate an
employer from ADEA liability or from a sustainable finding of a willful violation.
Even if Raytheon superficially applied its nondiscriminatory RIF standards to
Miller, considerable circumstantial evidence added to the inference of age
discrimination that Raytheon went out of its way to avoid rehiring Miller, in
contravention of its usual procedures, and to obscure the reasons for its
decisions. JMOL was correctly denied on the issue of willfulness.

4. Pension Benefits
The jury awarded Miller $227,000 for an enhancement to his ultimate

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pension benefits that would have vested between the time of his termination in
March 2008 and trial in 2010. Raytheon argues that the district court
erroneously considered that amount as back pay, which was doubled as part of
Miller’s liquidated damages. We agree. The purpose of back pay is to “make
whole the injured party by placing that individual in the position he or she
would have been in but for the discrimination.” Sellers v. Delgado Cmty. Coll.,
839 F.2d 1132, 1136 (5th Cir. 1988). The question here is not whether Miller
could claim that he lost the opportunity to receive the enhanced pension when
he was terminated before it vested at age 55—Raytheon does not deny this
claim—but whether the enhanced benefit was properly treated as “back pay” or
“front pay.” A back pay award is denominated as damages under ADEA and is
subject to doubling if a willful violation is found. A front pay award rests within
the court’s equitable discretion and may not be doubled. Banks v. Travelers Cos.,
180 F.3d 358, 364-65 (2nd Cir. 1999).
Although Miller became 55 a few months before trial occurred, he had not
been employed by Raytheon for nearly two years. Whether he would have stayed
with the company during that period and actually qualified for the enhancement
is in this case a forward-looking determination from the point of his termination
and thus a judgment call like the equitable decision to award front pay. This is
reinforced by Miller’s testimony that he intended to work until age 70. Any
claim for present damages based on enhanced pension benefits he would not
receive until up to fifteen years later would have had to be discounted to present
value in order to represent Miller’s actual loss. See Skalka v. Fernald Env.
Restoration Mgmt., 178 F.3d 414, 426 (6th Cir. 1999). As this court noted,

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“awarding ‘present monetary damages for the loss of a prospective benefit that
either may not ultimately be earned, or that may be actually earned and
collected in full in the future, would go beyond making plaintiffs’ [sic] whole for
the unlawful discrimination they suffered. It would provide a windfall bonus.’”
Bourdais v. New Orleans City, 485 F.3d 294, 300-01 (5th Cir. 2007) (quoting the
district court).3 Absent such proof, the enhanced benefits should have been
treated as front pay. The judgment must be changed to treat this pension
enhancement as front pay and eliminate it as a basis for liquidated damages.
5. Mental Anguish
Raytheon challenges the district court’s reduced award of damages for
mental anguish. Compensatory damages for emotional harm, including mental
anguish, will not be presumed simply because the complaining party is a victim
of discrimination. DeCorte v. Jordan, 497 F.3d 433, 442 (5th Cir. 2007). The
award of damages must be supported by specific evidence of the nature and
extent of the harm. Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927, 938 (5th
Cir. 1996). Such evidence may include medical or psychological evidence in
support of the damage award. Id. at 940. A plaintiff’s conclusory statements
that he suffered emotional harm are insufficient. See Brady v. Fort Bend Cnty.,
145 F.3d 691, 719 (5th Cir. 1998).

3
As we did in Bourdais, id. at 301 n.9., we decline to set out an inflexible rule on the
treatment of “pension benefits” as damages or front pay under ADEA. The term is ambiguous.
In some cases, it refers to employer contributions to a 401(k) plan; in others, to the right to
receive certain benefits in the future; in others, the accrual of seniority entitlements to
enhanced payments. Compare e.g., Sharkey v. Lasmo (AUL Ltd.), 214 F.3d 371, 374-75
(2d Cir. 2000) (“pension credits” in form of “service and salary credits” coextensive with back
pay award should be treated as back pay).

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The district court remitted the jury award for mental anguish from $1
million to $100,000. This claim is premised solely on the testimony of Miller and
his wife. Miller presented no expert medical or psychological testimony of the
extent of his mental anguish. While Miller testified that he suffered chest pain,
back pain, sleep disturbances, he also admitted that he did not take any over-
the-counter pain or sleep medications. Nor did Miller seek the assistance of any
health care professional or counselor. DeCorte is distinguishable because
testimony from a psychologist supported the plaintiffs’ claims. DeCorte, 497 F.3d
at 443. Because the Millers’ self-serving testimony is legally insufficient, we
vacate the mental anguish award.
B. Miller’s Claims
1. Double Recovery on Damages
Liquidated damages are available for a willful violation of the ADEA. The
TCHRA provides for punitive damages where the defendant acted with malice
or reckless indifference to the plaintiff’s rights. The jury found that Raytheon’s
actions were willful and awarded punitive damages. To prevent double recovery,
the district court awarded Miller only the higher liquidated damages. Miller
challenges this ruling.
When a federal claim overlaps with a pendant state claim, the plaintiff is
entitled to the maximum amount recoverable under either the federal or state
claim. Cryak v. Lemon, 919 F.2d 320, 326 (5th Cir. 1990). Miller brought an
action for a single injury under a federal statute and a state statute, both of
which protect against age discrimination. Accordingly, Miller may recover under

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only one statute, and the district court correctly granted him the higher recovery
available under the ADEA.
2. TCHRA Damage Cap
The jury awarded Miller $15 million in punitive damages. Applying the
non-economic damage cap under the TCHRA, TEX. LAB. CODE § 21.2585, the
district court remitted the award to $300,000. Miller argues that § 21.2585
violates the Texas Constitution. If Miller’s contention is correct, then the
judgment would have to reflect the higher state law punitive damage award
rather than the ADEA liquidated damage award. The constitutionality of a state
statute is a question of law reviewed de novo. Nat’l Fed’n of the Blind of Tex.,
Inc. v. Abbott, 647 F.3d 202, 208 (5th Cir. 2011). Texas courts afford state
statutes a strong presumption of constitutionality under the Texas Constitution.
Walker v. Gutierrez, 111 S.W.3d 56, 66 (Tex. 2003).
The relevant section of the Texas Constitution states: “Notwithstanding
any other provision of this constitution, after January 1, 2005, the legislature by
statute may determine the limit of liability for all damages and losses, however
characterized, other than economic damages, in a claim or cause of action not
covered by Subsection (b) of this section.” TEX. CONST. art. III, § 66(c). Miller
argues that Subsection (c) either invalidates all existing statutory caps not
passed under the procedures detailed in Subsection (e)4 or that the legislature
did not have authority to enact statutory caps before the passage of Subsection

4
TEXAS CONST. art. III, § 66(e) (“A legislative exercise of authority under Subsection
(c) of this section requires a three-fifths vote of all the members elected to each house and must
include language citing this section.”).

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(c). By its own terms, Subsection (c) only applies to legislation passed after
January 1, 2005. The statutory caps under the TCHRA long predate Subsection
(c), and Miller has not demonstrated how these caps were impliedly repealed.
Following the plain meaning of Article III, § 66(c), we hold that the district court
properly applied the non-economic damage cap under the TCHRA.5
3. Prejudgment Interest
Miller argues that the district court abused its discretion in denying
prejudgment interest. He concedes that prejudgment interest is not available
under the ADEA6 and cites no case supporting his theory that prejudgment
interest is available under the TCHRA. Accordingly, we hold that the district
court did not abuse its discretion.
4. Front Pay
Awards of front pay are reviewed for abuse of discretion. Julian v. City of
Houston, 314 F.3d 721, 728 (5th Cir. 2002). The district court awarded Miller
front pay in the amount of $186,628.00, representing one year’s prospective
salary. Miller asserts that the court “effectively” only awarded two months of
front pay because ten months of the award accrued after the verdict and before

5
The closest thing to authority provided by Miller is a case allegedly casting the power
of the legislature to enact statutory caps prior to the passage of Subsection (c) into doubt.
Lucas v. United States, 757 S.W.2d 687, 690 (Tex. 1988) (enforcing the Texas Constitution’s
“Open Courts” guarantee). But the first criteria of the Sax v. Votteler, 648 S.W.2d 661, 666
(Tex. 1983), test applied by the Lucas court is that there be a cognizable common law right of
action. The right here is created by statute, and Lucas is inapposite.
6
“In an ADEA case where liquidated damages are awarded, a court may not award
prejudgment interest on either the backpay or the liquidated damage award.” McCann v. Tex.
City Refining, Inc., 984 F.2d 667, 673 (5th Cir. 1993).

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final judgment. This argument lacks merit. The district court fully and
carefully considered the relevant circumstances in his written opinion and made
an informed decision not to attach the front pay award to a particular date.
There was no abuse of discretion.
The district court expressly considered the amount of other damages
before arriving at a front pay award. Among these was the liquidated damages
award it attached to Miller’s enhanced pension, which we have vacated and
shifted to front pay. We have also vacated the mental anguish award. Because
it is possible that these alterations might change the district court’s equitable
calculation of front pay, we remand the front pay award for reconsideration in
the court’s discretion.
5. Attorneys’ Fees
After the district court entered judgment, Miller filed a motion for
attorneys’ fees under the ADEA. The district court granted Miller’s motion in
part and denied it in part, reducing both the hours and the hourly rates
submitted. Miller only appeals the decrease in the hourly rates. The “district
court’s factual findings as to . . . the reasonable rates for attorneys’ fees are
reviewed by this court for clear error.” McClain v. Lufkin Indus., Inc., 649 F.2d
374, 380 (5th Cir. 2011).
Miller requested hourly rates of $825, $775, and $400 for his three primary
attorneys. These rates were supported by affidavits from two attorneys from his
attorneys’ firm and an outside attorney. After considering state bar surveys,
attorneys fees in similar cases, and the skills of Miller’s attorneys, the district
court reduced each attorney’s requested rate by 30%. The district court was

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entitled to rely on this information and discount the evidence provided by Miller.
Van Ooteghem v. Gray, 774 F.2d 1332, 1338 (5th Cir. 1985). Contrary to Miller’s
assertions, the district court held Miller’s attorneys to the same standard as any
other attorneys. The record shows that the reduced hourly rates of $577.50,
$542.50, and $280 were reasonable, customary rates. Cf. Fluor Corp. v. Citadel
Equity Fund Ltd., No. 3:08-CV-1556-B, 2011 WL 3820704, at *5 (N.D. Tex.
Aug. 26, 2011) (“In other cases involving Texas lawyers, the hourly rates range
from $220 for associates to $510 for senior partners.”) (citing several cases and
the range of hourly rates). Because the district court did not commit clear error
in reducing the hourly rates, we affirm the award of $488,437.08 in attorneys’
fees.
III. Conclusion
For the foregoing reasons, we AFFIRM in part, VACATE in part, and
REMAND.

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