Jackson v. Estelle's Place, LLC

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-1700

TANYA JACKSON; MICHAEL AGYEMAN; THOMAS GEORGE; ISAAC ASAVE,
on behalf of themselves and on behalf of all others
similarly situated,

Plaintiffs - Appellants,

v.

ESTELLE’S PLACE, LLC; JIREH PLACE, LLC; OUR PLACE, LLC;
DESTINY PLACE, LLC; DEBRA ROUNDTREE; MARY BELL,

Defendants – Appellees.

--------------------------------------

METROPOLITAN WASHINGTON EMPLOYMENT LAWYERS ASSOCIATION;
WASHINGTON LAWYERS’ COMMITTEE FOR CIVIL RIGHTS AND URBAN
AFFAIRS,

Amici Supporting Appellants.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Leonie M. Brinkema,
District Judge. (1:08-cv-00984-LMB-TRJ)

Argued: May 14, 2010 Decided: August 12, 2010

Before GREGORY, AGEE, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion. Judge Gregory wrote
a dissenting opinion.
ARGUED: Nicholas Woodfield, EMPLOYMENT LAW GROUP, PC,
Washington, D.C., for Appellants. Edward S. Rosenthal, RICH
ROSENTHAL BRINCEFIELD MANITTA DZUBIN & KROEGER, LLP, Alexandria,
Virginia, for Appellees. ON BRIEF: R. Scott Oswald, EMPLOYMENT
LAW GROUP, PC, Washington, D.C., for Appellants. Katelin T.
Moomau, Jonathan A. Simms, RICH ROSENTHAL BRINCEFIELD MANITTA
DZUBIN & KROEGER, LLP, Alexandria, Virginia, for Appellees.
Susan E. Huhta, Laura E. Varela, WASHINGTON LAWYERS’ COMMITTEE
FOR CIVIL RIGHTS & URBAN AFFAIRS, Washington, D.C., for Amici
Supporting Appellants.

Unpublished opinions are not binding precedent in this circuit.

2
PER CURIAM:

Appellants Tanya Jackson, Michael Agyeman, Thomas George,

Isaac Asare, Sharon Doss, and Courtney Collins are present and

former employees of several related entities that operate group

homes for the developmentally disabled. Appellees, defendants

below, are those entities and their principals (Estelle’s Place,

LLC; Jireh’s Place, LLC; Our Place, LLC; Destiny’s Place, LLC;

Debra Roundtree, and Mary Bell). Appellants’ claims arose under

the overtime pay provision of the Fair Labor Standards Act, 29

U.S.C. § 201, et seq. (“FLSA”), and state law. Early on, the

parties settled the action, leaving to the district court,

however, determination of the amount of attorney’s fees to be

awarded to Appellants as prevailing parties. See id. at

§ 216(b). Feeling aggrieved by the amount of the district

court’s award of attorney’s fees ($36,000), Appellants filed the

instant appeal. 1 For the reasons set forth below, we affirm.

I.

Appellants Jackson, George, Asare, Doss, and Collins were

compensated on an hourly basis; Appellant Agyeman, on the other

1
Although Appellants noted their appeal only from the
denial of their motion to alter or amend the district court’s
order awarding attorney’s fees, we have jurisdiction to consider
the merits of the underlying order. See, e.g., Brown v. French,
147 F.3d 307, 311 (4th Cir. 1998).

3
hand, though not paid hourly, was nonetheless misclassified as

an exempt employee for overtime purposes. Appellees effected the

underpayments of wages by assigning Appellants to work a total

of more than 40 hours per week, but at different group homes,

while treating work at each group home (owned by a separate but

related corporate entity) as work for a separate employer.

Consequently, Appellees paid Appellants at the straight time

rate rather than at the overtime rate of time-and-a-half for

hours worked beyond 40 per week.

On September 22, 2008, Appellants Jackson, Agyeman, George,

and Asare filed suit in the United States District Court for the

Eastern District of Virginia against Appellees, seeking unpaid

overtime compensation under the FLSA. Appellants Doss and

Collins opted into the litigation as plaintiffs. Meanwhile,

Appellants filed a Motion to Allow Notice to Similarly Situated

Employees and to Approve Interrogatory to Defendants Seeking the

Identity of Similarly Situated Employees. On December 19, 2008,

the district court granted Appellants’ motion. Shortly after the

district court ordered publication of notice of the pendency of

the lawsuit to other employees, but before such notice was

published, the parties negotiated a Confidential Settlement

Agreement and General Release resolving all of Appellants’

claims.

4
 The Settlement Agreement stipulated that Appellants would

be paid additional wages equal to unpaid overtime compensation

(i.e., half-time) for all hours or fractions thereof worked in

excess of 40 hours during any one work week (from September 22,

2005, through the date of the settlement), plus an equal amount

in liquidated damages. The parties then stipulated to the

following settlement amounts: Asare ($430.00), Collins

($567.50), Doss ($490.00), George ($4,032.00), Jackson

($1,963.50), and Agyeman ($12,471.34). Notably, of the 13 forms

of relief sought in the complaint, nine were not addressed in

the Settlement Agreement and were wholly abandoned by

Appellants. 2 In particular, no injunctive relief was awarded, no

relief was awarded on any state law claim, and Appellees were

not required to alter their method of operation. In any event,

pursuant to the Settlement Agreement, the district court entered

2
These nine prayers for relief were for (1) an order
appointing plaintiffs and their counsel to represent similarly
situated employees as to the FLSA claims, (2) certification of
the breach of contract and quantum meruit classes and
designation of plaintiffs as class representatives and their
counsel as class counsel, (3) a preliminary and permanent
injunction prohibiting the defendants from engaging in the
allegedly unlawful practices, (4) an order awarding declaratory
relief, (5) an order awarding restitution and disgorgement of
profits, (6) a judgment awarding plaintiffs economic,
compensatory damages, liquidated damages, and punitive damages,
(7) pre-judgment interest, (8) equitable relief such as
employment, reinstatement, promotion, or frontpay, and (9)
interest due on unpaid wages.

5
an Agreed Order of Dismissal in Part, dated February 23, 2009,

dismissing all of Appellants’ claims with prejudice, reserving

for itself the issue of attorney’s fees and costs, as the

parties had agreed.

Appellants promptly filed their motion for an award of

attorney’s fees. Following full briefing and a hearing, the

district court issued a Memorandum Opinion and Order granting

attorney’s fees and costs. The district court noted that under

this court’s precedents, a reasonable fee would be calculated by

determining a lodestar fee, followed by any appropriate

reductions. See Grissom v. The Mills Corp., 549 F.3d 313 (4th

Cir. 2008), where we stated:

The parties also agree that after calculating the
lodestar figure, the “court then should subtract fees
for hours spent on unsuccessful claims unrelated to
successful ones.” Johnson v. City of Aiken, 278 F.3d
333, 337 (4th Cir. 2002). “Once the court has
subtracted the fees incurred for unsuccessful,
unrelated claims, it then awards some percentage of
the remaining amount, depending on the degree of
success enjoyed by the plaintiff.” Id.

Id. 321 (emphasis added); see also Robinson v. Equifax

Information Services, LLC, 560 F.3d 235, 243 (4th Cir. 2009).

The district court determined the appropriate hourly rates

for counsel for Appellants, ranging from $350.00 per hour for

the most experienced lawyer to $60.00 per hour for the legal

assistant. The district court then determined the total hours

reasonably expended by the four people who worked on the case.

6
Thus, the district court arrived at what it described as a

“lodestar fee” of $47,800. Then, in determining the ultimate

issue of a reasonable fee, the district court noted that only

six plaintiffs joined the lawsuit, and their total recovery

amounted to less than $10,000.00 before it was doubled under

FLSA’s liquidated damage provision. The court further noted

that, of the six awards, four were for less than $1,000.00

before doubling and that Agyeman received the largest recovery,

based only on his misclassification. Thus, the court reasoned

that the $47,800.00 “lodestar fee” should be reduced because

“[a]n attorneys’ fee should bear some reasonable relationship to

the recovery of plaintiffs.” Given the “modest value” of the

successful claims, the court determined that a reasonable fee,

which it also described as a “lodestar,” amounted to $36,000.00.

On May 18, 2009, Appellants filed a Motion to Alter or

Amend the district court’s order granting fees and costs

pursuant to Fed. R. Civ. P. 59(e). On June 9, 2009, the district

court denied Appellants’ motion. Appellants have timely

appealed.

II.

A.

We review a district court’s award of attorney’s fees for

abuse of discretion. Johnson v. City of Aiken, 278 F.3d 333, 336

7
(4th Cir. 2002) (citing McDonnell v. Miller Oil Co., 134 F.3d

638, 640 (4th Cir. 1998); Freeman v. Case Corp., 118 F.3d 1011,

1014 (4th Cir. 1997)). “Our review of the district court’s award

is sharply circumscribed; we have recognized that because a

district court has close and intimate knowledge of the efforts

expended and the value of the services rendered, the fee award

must not be overturned unless it is clearly wrong.” Plyler v.

Evatt, 902 F.2d 273, 277-78 (4th Cir. 1990) (internal quotation

marks, citations, and alteration marks omitted).

B.

A prevailing party is entitled to an award of reasonable

attorney’s fees and costs pursuant to the FLSA. See 29 U.S.C. §

216(b). Here, because the parties have agreed that Appellants

are prevailing parties, Appellants are entitled to an award of

attorney’s fees and costs that they establish as reasonable. See

Plyler, 902 F.2d at 277.

Appellants’ challenge to the award in this case is a narrow

one. Although Appellants sought fees and costs in excess of

$87,000, they do not assign error to the district court’s

initial determination that the traditional lodestar amount in

this case (hours worked x appropriate hourly rate) was $47,800.

Rather, they limit their challenge to the district court’s

ultimate determination that a reasonable fee was the traditional

lodestar amount less approximately 25%. Appellants make two

8
arguments in support of their contention that the district court

abused its discretion in reducing the traditional lodestar by

approximately 25% in this case. First, they contend that our

opinion in Grissom does not allow such a reduction. Second, they

contend that even if Grissom could be interpreted to allow such

a reduction, such a reduction is prohibited by City of Riverside

v. Rivera, 477 U.S. 561 (1986), and by the Supreme court’s

recent opinion in Perdue v. Kenny A., 130 S. Ct. 1662 (2010). We

disagree.

1.

We have set forth the Grissom methodology, 549 F.3d at 320,

above, which the district court cited in its order and which

provides in part that a court should “award[] some percentage of

the remaining amount [after reductions for unsuccessful claims],

depending on the degree of success enjoyed by the plaintiff.”

(Emphasis added) Appellants contend that, inasmuch as they

enjoyed “complete success on all claims,” Appellant’s Br. 11,

there should not have been any reduction for their pursuit of

unsuccessful claims and that, therefore, their “degree of

success” under Grissom was effectively one hundred percent.

Thus, according to Appellants, under Grissom, the only

appropriate “percentage” of the traditional lodestar amount that

constituted a “reasonable fee” is one hundred percent.

9
 In support of this contention, Appellants seize on the

district court’s statement that “[i]t is unnecessary to subtract

fees incurred for unsuccessful, unrelated claims or award only a

percentage of this amount because plaintiffs settled all of

their claims for full value.” Having carefully reviewed the

district court’s orders, it is clear to us that, in context, the

district court indeed followed Grissom, albeit somewhat

awkwardly. In other words, we agree with Appellants to the

extent that they contend that the methodology followed by the

district court is somewhat less precise than one would hope, but

we reject the contention that the district court deviated from

the core mandate of Grissom in calculating a “reasonable fee.”

Like most (if not all) of the courts of appeals, we have

directed that in deciding what constitutes a reasonable number

of hours and the appropriate hourly rates (i.e., in calculating

the lodestar fee), a district court looks to the following

twelve factors:

(1) the time and labor expended; (2) the novelty and
difficulty of the questions raised; (3) the skill required
to properly perform the legal services rendered; (4) the
attorney’s opportunity costs in pressing the instant
litigation; (5) the customary fee for like work; (6) the
attorney’s expectations at the outset of the litigation;
(7) the time limitations imposed by the client or
circumstances; (8) the amount in controversy and the
results obtained; (9) the experience, reputation and
ability of the attorney; (10) the undesirability of the
case within the legal community in which the suit arose;
(11) the nature and length of the professional

10
 relationship between attorney and client; and (12)
attorneys’ fees awards in similar cases.

Barber v. Kimbrell’s Inc., 577 F.2d 216, 226 n.28 (4th Cir.

1978) (adopting factors set forth in Johnson v. Ga. Highway

Express, Inc., 488 F.2d 714 (5th Cir. 1974), abrogated on other

grounds by Blanchard v. Bergeron, 489 U.S. 87 (1989). In this

case, the district court properly assessed the 12 factors and

focused, most heavily, on factor number eight - “the amount in

controversy and the results obtained.” In doing so, the district

court purported to arrive at an “initial” lodestar fee

($47,800), and then, after consideration of factor number eight,

it arrived at its “final” lodestar fee of $36,000. Thus,

although the district court arrived at a reasonable fee as

mandated by Grissom, it took the somewhat circuitous route of

calculating a “final” lodestar by relying on factor eight in the

Kimbrell’s analysis, rather than by expressly taking account of

Appellants’ unsuccessful claims and then taking a “percentage

reduction” from the traditional lodestar, as contemplated by

Grissom. 3

3
The district court described its approach in its order
denying the motion to alter or amend, stating that: “After
arriving at the lodestar figure of $36,000.00, the Court
determined that further reduction [under Grissom] was
unnecessary because plaintiffs had been fully compensated for
the hours they worked. Finding that further reduction was
unnecessary does not support the argument that the earlier
reduction was in error.”

11
 Under the circumstances here, we have no hesitation in

leaving undisturbed what the district court did, notwithstanding

that its methodology was not congruent with that contemplated by

Grissom. Plainly, the court was cognizant of the broad scope of

the case as Appellants filed it, see supra page 5 and note 2,

including the presence of state law claims (which were not

“successfully” prosecuted) and the request for broad relief,

compared to the more modest result achieved. We should not and

do not fault the district court for an arguable analytic

imprecision where, substantively, no abuse of discretion is

evident. In so doing, we bear in mind the following reminder

from the Supreme Court:

[W]e have said repeatedly that “[t]he initial estimate
of a reasonable attorney’s fee is properly calculated
by multiplying the number of hours reasonably expended
on the litigation times a reasonable hourly rate.”
Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541,
1544, 79 L.Ed.2d 891 (1984). The courts may then
adjust this lodestar calculation by other factors.

Bergeron, 489 U.S. at 95 (emphasis added); and see Burlington v.

Dague, 505 U.S. 557 (1992):

We have [turned to the lodestar model], it must
be noted, even though the lodestar model often
(perhaps, generally) results in a larger fee award
than the contingent-fee model. See, e.g., Report of
the Federal Courts Study Committee 104 (Apr. 2, 1990)
(lodestar method may “give lawyers incentives to run
up hours unnecessarily, which can lead to
overcompensation”).

12
Id. at 566 (brackets added). In sum, despite its imprecise

methodology, the district court plainly acted consonant with our

Grissom mandate. See Hensley v. Eckerhart, 461 U.S. 424, 437

(1983) (noting that a district court may either identify

particular hours to be eliminated or reduce the fee in light of

the limited success in calculating fee award).

2.

Appellants’ arguments relying on City of Riverside v.

Rivera, 477 U.S. 561 (1986), and Perdue v. Kenny A., 130 S. Ct.

1662 (2010), fare no better than their arguments relying on

Grissom. They contend that City of Riverside prohibits a

limitation on an award of attorney’s fees to a proportion of the

damages awarded. As the district court stated, however, City of

Riverside, did not impose a blanket prohibition on the use of

the rule of proportionality. In that case, the Supreme Court

merely “reject[ed] the proposition that fee awards . . . should

necessarily be proportionate to the amount of damages a civil

rights plaintiff actually recovers.” City of Riverside, 477 U.S.

at 565 (emphasis added). The Court emphasized the sui generis

nature of civil rights cases, where plaintiffs “seek[] to

vindicate important civil and constitutional rights that cannot

be valued solely in monetary terms” and fee awards are used to

deter future violations. Id. at 575-76. Nevertheless, the Court

expressly held that “[t]he amount of damages a plaintiff

13
recovers is certainly relevant to the amount of attorney’s fees

to be awarded under § 1988.” Id. at 574. There is no indication

here that the district court relied solely on a proportionality

approach.

Appellants’ reliance on the Supreme Court’s recent decision

in Perdue is similarly unavailing. They contended in their Rule

28(j) submission that Perdue involved a rejection of an

“arbitrary enhancement” of a lodestar fee, and that “if an

arbitrary enhancement of the lodestar is reversible error, an

arbitrary reduction of the lodestar would be . . . an abuse of

discretion and reversible error.” Appellants overstate, if they

do not misstate, the holding in that case. In Perdue, the Court

held that an attorney’s fee based on the lodestar may be

increased due to superior performance, but only in extraordinary

circumstances. 130 S. Ct. at 1674. But while the Court held that

an enhancement to the lodestar fee may be permissible, it found

the justification there inadequate. Indeed, Perdue makes plain

that the lodestar figure, though supported by a “strong

presumption” of correctness, is not invariably the end of the

analysis but, in some classes of cases, only the beginning:

In light of what we have said in prior cases, we
reject any contention that a fee determined by the
lodestar method may not be enhanced in any situation.
The lodestar method was never intended to be
conclusive in all circumstances. Instead, there is a
“strong presumption” that the lodestar figure is
reasonable, but that presumption may be overcome in

14
 those rare circumstances in which the lodestar does
not adequately take into account a factor that may
properly be considered in determining a reasonable
fee.

Id. at 1673 (emphasis added). In any event, nothing in Perdue

persuades us that the district court’s reduced fee award here

was in any sense “arbitrary” or was otherwise the product of an

abuse of discretion.

III.

For the reasons set forth above, the orders of the district

court are

AFFIRMED.

15
GREGORY, Circuit Judge, dissenting:

The fee award in this case is clearly wrong. After

calculating the initial lodestar fee of $47,800, the district

court stated that based on “the amount involved and the results

obtained,” it was reducing the fee award by twenty-five percent.

J.A. 369. 1 While the majority correctly notes that this is an

appropriate factor to consider under our precedent, we also have

precedent that mandates such consideration occurs by comparing

the relief sought to the relief awarded. Under the latter case

law, I am left with the inescapable conclusion that the court

abused its discretion by focusing on the value of the employees’

claims and thus respectfully dissent.

I.

This Court has recognized that the factor relied on by the

district court to reduce the lodestar fee, “the amount in

controversy and the results obtained,” Barber v. Kimbrell’s

Inc., 577 F.2d 216, 226 n.28 (4th Cir. 1978), is largely

coextensive with the court’s consideration of the employee’s

“degree of success.” Nigh v. Koons Buick Pontiac GMC, Inc., 478

F.3d 183, 190 (4th Cir. 2007). “When considering the extent of

1
Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in this appeal.

16
the relief obtained, we must compare the amount of the damages

sought to the amount awarded.” Mercer v. Duke Univ., 401 F.3d

199, 204 (4th Cir. 2005). This comparison “rests on the idea

that a prevailing plaintiff is less worthy of a fee award when

one or more of his claims lack merit – that is, when he cannot

demonstrate that he deserves the compensation he demanded in his

complaint.” Nigh, 478 F.3d at 190.

The above analysis is consistent with the Supreme Court’s

elucidation of how district courts should account for the

“degree of success.” In Hensley v. Eckerhart, the Supreme Court

stated that in considering the “degree of success,” “[t]he

result is what matters.” 461 U.S. 424, 435-36 (1983) (finding

that in a case where “a plaintiff has achieved only partial or

limited success, the product of hours reasonably expended on the

litigation as a whole times a reasonable hourly rate may be an

excessive amount”). The Court found that although district

courts have discretion in making these judgments, the courts

must consider this success or result “in comparison to the scope

of the litigation as a whole.” Id. at 440. For example, in

Hensley itself, the Court explained that “had respondents

prevailed on only one of their six general claims, . . . a fee

award based on the claimed hours clearly would have been

excessive.” Id. at 436.

17
 Following these principles, courts have reduced fee awards

where FLSA plaintiffs recovered only a portion of the amount

actually sought. See, e.g., Saizan v. Delta Concrete Prods.

Co., Inc., 448 F.3d 795, 801 (5th Cir. 2006) (affirming the

district court’s reduction of the lodestar fee due to the

difference between the amount initially sought in the complaint

and the ultimate settlement amount); Spegon v. Catholic Bishop

of Chicago, 175 F.3d 544, 558 (7th Cir. 1999) (affirming the

district court’s reduction of the lodestar fee because the

plaintiff failed to obtain the full overtime pay that was

asserted in the complaint and failed all-together on his claim

for discrimination and its accompanying request for damages).

Courts have also reduced fee awards based on degree of success

when the plaintiffs prevailed on only some of the claims

brought. See, e.g., Spegon, 175 F.3d at 558; Baird v. Boies,

Schiller & Flexner LLP, 219 F. Supp. 2d 510, 523-24 (S.D.N.Y.

2002).

In light of the above case law, the district court’s focus

on the damages awarded as compared to the attorneys’ fee is more

than “analytic imprecision” or “imprecise methodology.” Maj.

Op. at 12. Rather, it constitutes error. In its initial

determination of the fee, the court stated that the employees’

“total recovery was less than $10,000 before being doubled under

the liquidated damages provision of the FLSA,” that “of the six

18
awards, four were less than $1,000 before doubling,” and that

“[a]n attorneys’ fee should bear some reasonable relationship to

the recovery of the plaintiffs.” J.A. 369. The court then

stated that it was reducing the lodestar fee by twenty-five

percent “[g]iven the modest value of the plaintiff’s claims.”

J.A. 369. No other explanation was given for the fee reduction

at the time of the determination. No comparison of the relief

sought to the relief awarded was conducted by the court, as

mandated by case law when considering “results” or the “degree

of success.” Nor did the court decide that any claims put

forward by the employees lacked merit. Subsequently responding

to the employees’ objection to the fee reduction, the court’s

main justification for reducing the fee remained its belief that

“the amount of plaintiffs’ claims and their eventual recovery

was quite modest.” J.A. 418.

“A presumptively correct ‘lodestar’ figure should not be

reduced simply because a plaintiff recovered a low damage

award.” Cowan v. Prudential Ins. Co. of America, 935 F.2d 522,

526 (2d Cir. 1991). The size of the damage award carries even

less weight here given that the case arose under the fee-

shifting provision of the FLSA. See Quaratino v. Tiffany & Co.,

166 F.3d 422, 426 (2d Cir. 1999) (“Congress enacted fee-shifting

in civil rights litigation precisely because the expected

monetary recovery in many cases was too small to attract

19
effective legal representation.”); Fegley v. Higgins, 19 F.3d

1126, 1134-35 (6th Cir. 1994) (“The purpose of the FLSA attorney

fees provision is to insure effective access to the judicial

process by providing attorney fees for prevailing plaintiffs

with wage and hour grievances. Courts should not place an undue

emphasis on the amount of the plaintiff’s recovery because an

award of attorney fees here encourage[s] the vindication of

congressionally identified policies and rights.” (alteration in

original) (internal quotation marks and citations omitted).

Thus, by subjectively labeling the employees’ success “modest”

and failing to look at the success of the employees’ claims “in

comparison to the scope of the litigation as a whole,” Hensley,

461 U.S. at 440, the court abused its discretion.

While the court did have discretion to consider the size of

the damages award, that amount was relevant only when compared

to the damages sought. Mercer, 401 F.3d at 204. The district

court itself found that no reduction for “degree of success” was

necessary because the employees “settled all of their claims for

full value.” J.A. 370 (emphasis added). I assume that the

district court meant what it said. Indeed, full success is

supported by the record. The employees negotiated a settlement

that provided them with the maximum monetary relief due under

the FLSA – the full amount of overtime pay owed plus an equal

amount of liquidated damages. When compared to the scope of

20
litigation as whole, which evolved solely around the FLSA

claims, this relief cannot be classified as limited. There was

no other claim that the employees failed to succeed on the

merits, and the majority even agrees that the settlement

agreement “resolv[ed] all of Appellants’ claims.” Maj. Op. at

4. Thus, the full lodestar fee should have been awarded. 2

The majority closes its eyes to the district court’s focus

on the value of the employees’ claims. Beyond repeating the

same mistake made by the district court – judging the result

obtained as “modest” in and of itself, see maj. op. at 12

(describing the employees’ full recovery as a “modest result”) –

the majority seems to assert that the district court correctly

compared the result obtained to the result sought in justifying

the fee reduction. This cannot be the case. The district court

did, only after the employees objected, state that it compared

the relief sought to the relief obtained, and that the employees

“did not receive any of the other forms of relief they sought in

the complaint.” J.A. 418. 3 The court is referring to the prayer

2
This is especially so given the “strong presumption” that
the full lodestar fee is reasonable and owed to prevailing
attorneys. City of Burlington v. Dague, 505 U.S. 557, 562
(1992).
3
The court also claims that the employees obtained limited
success because only six employees joined the lawsuit. It is
unclear how this fact means that the six employees that did opt
in were not successful. The fact that they settled their claims
(Continued)
21
for relief contained in the complaint, which sought punitive

damages, a request for declaratory judgment, and various forms

of injunctive relief. The majority likewise cites to the prayer

for relief, maj. op. at 5, as proof that a fee reduction is

appropriate because the employees failed to obtain every form of

relief requested. In this case, placing such a burden on the

employees in order for them to obtain the full lodestar fee,

which is presumptively reasonable, is unfounded. First, as the

employees and amicus point out, punitive damages and

reinstatement or other injunctive relief are not available for

claims under the FLSA. EEOC v. Gilbarco, Inc., 615 F.2d 985,

987 n.1 (4th Cir. 1980) (finding that only the Secretary of

Labor may bring an action for injunctive relief); Lanza v.

Sugarland Run Homeowners Ass’n, Inc., 97 F. Supp. 2d 737, 741

(E.D. Va. 2000) (holding that punitive damages are not allowed

under the FLSA). Therefore, the employees argue that the

request for such relief was merely boilerplate language and

should not provide a basis for finding limited success. There

within seven days of the district court’s granting their Motion
to Allow Notice to Similarly Situation Employees would seem to
indicate that the employers settled quickly to avoid a larger
damages award, meaning the employees were successful. If the
court did rely on the number of employees that opted in, this
was legal error. See Estrella v. P.R. Painting Corp., 596 F.
Supp. 2d 723, 727-28 (E.D.N.Y. 2009).

22
is support for this assertion. See Smith v. District of

Columbia, 466 F. Supp. 2d 151, 160 (D.D.C. 2006) (“The District

of Columbia argues that Plaintiff’s degree of success – the

award of $72,000 – should be measured against the ad damnum

clause in her Complaint. That is just plain foolish. Ad damnum

requests, as all judges and litigants know, rarely bear any

relationship to reality or expectations.”). Second,

“[l]itigants in good faith may raise alternative legal grounds

for a desired outcome, and the court’s rejection of or failure

to reach certain grounds is not a sufficient reason for reducing

a fee. The result is what matters.” Hensley, 461 U.S. at 435.

Here, the result was significant and the best possible under the

FLSA, which was the employees’ only stated source of relief. In

“the scope of the ligation as a whole,” id. at 440, the relief

was not limited.

Finally, because the other relief referred to by the

district court and the majority is available only through the

breach of contract or quantum meruit claims, the court must have

necessarily meant that the failure of the employees to prevail

on those claims, in addition to the FLSA claim, merited a

reduction in the lodestar fee. The majority specifically cites

“the presence of state law claims.” Maj. Op. at 12. Yet, it

was impossible for the employees to prevail on both the FLSA

claim and the breach of contract/quantum meruit claims. Quantum

23
meruit was an alternative to the breach of contract claim.

Additionally, the breach of contract claim nowhere relies on

Virginia law and asserts no contractual basis for the claim

other than the FLSA. Thus, the breach of contract duplicates

the FLSA claim and is preempted under this Circuit’s precedent.

See Anderson v. Sara Lee Corp., 508 F.3d 181, 194 (4th Cir.

2007). The court, therefore, relied on an alternative claim on

which the employees had no chance of success.

It is telling that the majority omits discussion of the

district court’s final rationale for reducing the lodestar fee –

that the employees “did not achieve the sort of public benefits

discussed in City of Riverside.” J.A. 418. This assertion is

patently incorrect. As the court itself recited in the same

order, “damages in civil rights cases also serve[] the public

interest, for example, by deterring future civil rights

violations.” J.A. 417 (citing City of Riverside v. Rivera, 477

U.S. 561, 575 (1986)). In City of Riverside, the Supreme Court

stated, “[r]egardless of the form of relief he actually obtains,

a successful civil rights plaintiff often secures important

social benefits that are not reflected in nominal or relatively

small damages awards.” 477 U.S. at 574. Thus, the public

interest promoted by civil rights statutes, such as the FLSA,

“is perhaps most meaningfully served by the day-to-day private

enforcement of these rights, which secures compliance and deters

24
future violations.” Quarantino, 166 F.3d at 426. Therefore,

counsel’s efforts to secure a full recovery in this case is

exactly the type of private enforcement of wage and hour rights

that achieves a public benefit. See Wales v. Jack M. Berry,

Inc., 192 F. Supp. 2d 1313, 1327 (M.D. Fla. 2001) (“It is

recognized that the FLSA is an important piece of social

legislation. Accordingly, the public derived a benefit from the

plaintiffs’ recovery on their FLSA claims.”). Sadly today’s

opinion discounts the public benefit that unquestionably

accompanied counsel’s efforts. 4

II.

Additionally, the majority fails to recognize that although

the court did not run afoul of the Supreme Court’s rejection of

a rule of strict proportionality, see City of Riverside, 477

U.S. at 578, the district court’s emphasis on the size of the

attorneys’ fee and its pro rata reduction of the fee comes

dangerously close to such violation and has been soundly

rejected by other courts. See Simpson v. Merchants & Planters

Bank, 441 F.3d 572, 581 (8th Cir. 2006) (finding in the context

4
The opinion goes further and, in an attempt to affirm the
“imprecise” reasoning of the district court, throws in a quote
suggesting counsel ran up hours in this case, maj. op. at 12, an
allegation of which there is no evidence whatsoever.

25
of an Equal Pay Act case that “a pro rata reduction [in

attorneys’ fees] would not normally be appropriate . . . [and

that the court had] explicitly rejected a ‘rule of

proportionality’ in civil rights cases because tying the

attorney’s fees to the amount awarded would discourage litigants

with small amounts of damages from pursuing a civil rights claim

in court”); Kassim v. City of Schenectady, 415 F.3d 246, 252 (2d

Cir. 2005) (“Reasoning that a rule calling for proportionality

between the fee and the monetary amount involved in the

litigation would effectively prevent plaintiffs from obtaining

counsel in cases where deprivation of a constitutional right

caused injury of low monetary value, we have repeatedly rejected

the notion that a fee may be reduced merely because the fee

would be disproportionate to the financial interest at stake in

the litigation.”).

Even if the majority is correct that some reduction in the

fee award was appropriate, which I do not believe to be the

case, the district court’s method of reducing the award by the

arbitrary figure of twenty-five percent without any explanation

as to how the percentage was arrived at is an abuse of

discretion. It is precisely this subjectivity on the part of

the district court that the lodestar analysis guards against,

making the Supreme Court’s decision in Perdue v. Kenny A. ex

rel. Winn, 130 S. Ct. 1662 (2010), particularly relevant. In

26
Perdue, the Court considered whether a district court abused its

discretion in increasing the lodestar fee by seventy-five

percent based on what the court believed to be extraordinary

results. Id. at 1669. The Court first noted “the lodestar

method is readily administrable” because “the lodestar

calculation is ‘objective,’ and thus cabins the discretion of

trial judges, permits meaningful judicial review, and produces

reasonably predictable results.” Id. at 1672 (citations

omitted). The Court then noted that while “[t]he lodestar

method was never intended to be conclusive in all

circumstances,” “there is a ‘strong presumption’ that the

lodestar figure is reasonable, but that presumption may be

overcome in those rare circumstances in which the lodestar does

not adequately take into account a factor that may properly be

considered in determining a reasonable fee.” Id. at 1673. The

court found only a few exceptional circumstances in which

superior attorney performance would lead to an increased

lodestar fee. Id. at 1674. One such instance was when “an

attorney’s performance includes an extraordinary outlay of

expenses and the litigation is exceptionally protracted.” Id.

However, in such a rare case, the Court held that “the amount of

the enhancement must be calculated using a method that is

reasonable, objective, and capable of being reviewed on appeal,

27
such as by applying a standard rate of interest to the

qualifying outlays of expenses.” Id. at 1674-75.

As for the seventy-five percent increase in the lodestar

fee in Perdue, the Court found that “this figure appears to have

been essentially arbitrary. Why, for example, did the court

grant a 75% enhancement instead of the 100% increase that

respondents sought? And why 75% rather than 50% or 25% or 10%?”

Id. at 1675. Thus, although the Court found that an enhanced

fee was possible in some circumstances, it reversed the fee

award because “when a trial judge awards an enhancement on an

impressionistic basis, a major purpose of the lodestar method-

providing an objective and reviewable basis for fees is

undermined.” Id. at 1676 (citation omitted).

Here, the same prohibition of subjectivity should apply

when a judge asks whether a plaintiff’s “results obtained” are

limited. The lodestar fee is presumptively reasonable and while

the district court did have discretion to reduce the fee based

on limited success, the court arbitrarily decreased the lodestar

fee by twenty-five percent even if we assume success was

limited. The court provided no rationale for why the decrease

was not above or below the number it chose, offering no

“objective and reviewable basis,” id. at 1676, for the

percentage decrease. I therefore believe today’s decision

undermines the very purpose of the lodestar approach.

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 III.

Because the district court abused its discretion in

reducing the presumptively reasonable lodestar fee based on its

determination that the value of the employees’ award was

“modest” and in arbitrarily choosing a twenty-five percent

reduction, I would reverse the order of the district court and

remand with instructions to award the full fee of $47,800.

29