UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2375
MELANIE PITROLO,
Plaintiff – Appellant,
v.
COUNTY OF BUNCOMBE, NC; BRITT LOVIN; DEAN KAHL; LOYD KIRK;
VONNA CLONINGER; WESTERN NORTH CAROLINA REGIONAL AIR QUALITY
AGENCY BOARD OF DIRECTORS; WESTERN NORTH CAROLINA REGIONAL
AIR QUALITY AGENCY,
Defendants - Appellees.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:06-cv-00199-MR-DLH)
Submitted: September 12, 2014 Decided: October 20, 2014
Before SHEDD and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Dismissed in part and affirmed in part by unpublished per curiam
opinion.
Michael G. Wimer, WIMER & ASSOCIATES, PC, Asheville, North
Carolina, for Appellant. Thomas J. Doughton, Amy L. Rich,
DOUGHTON RICH BLANCATO PLLC, Winston-Salem, North Carolina, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In this, Melanie Pitrolo’s (“Appellant”) third appeal,
we are faced with multiple assignments of error. Following a
favorable verdict on her Title VII gender discrimination claim,
Appellant moved the district court for attorney’s fees, costs,
and declaratory relief, all of which the district court denied.
Soon afterward, Appellant filed a motion demanding the district
court judge recuse himself. One month later, she filed a motion
to vacate all orders the district court judge had entered while
he was allegedly disqualified. While these motions were
pending, Appellant filed her Third Notice of Appeal. 1 Appellant
then submitted a supplemental motion to vacate, alleging the
district court relied upon confidential information obtained
during settlement mediation in its order denying attorney’s
fees. After the district court denied Appellant’s motions for
recusal and vacatur, Appellant filed an Amended Third Notice of
Appeal.
Appellant claims the district court abused its
discretion both when it denied her post-trial motion for
declaratory relief and attorney’s fees, and her motions for
1
We considered the issues presented in Appellant’s First
Notice of Appeal in Pitrolo v. Cnty. of Buncombe, N.C., No. 07-
2145, 2009 WL 1010634 (4th Cir. Mar. 11, 2009), and her Second
Notice of Appeal in Pitrolo v. Cnty. of Buncombe, N.C., 407 Fed.
App’x 657 (4th Cir. 2011).
2
recusal and vacatur. Because we lack appellate jurisdiction to
review the district court’s denial of Appellant’s motions for
recusal and vacatur, we dismiss those assignments of error. We
affirm the district court’s denial of Appellant’s motion for
attorney’s fees and declaratory relief, albeit on different
grounds than those upon which the district court relied. MM ex
rel. DM v. Sch. Dist. of Greenville Cnty., 303 F.3d 523, 536
(4th. Cir. 2002) (“[W]e are entitled to affirm the court’s
judgment on alternate grounds, if such grounds are apparent from
the record.”). Applying the factors set forth in Aetna Casualty
& Surety Co. v. Ind-Com Electric Co., 139 F.3d 419, 421-23 (4th
Cir. 1998) (per curiam), we conclude that Appellant is not
entitled to declaratory relief because the judgment she sought
would neither clarify any issue of law in which the forum state
or the federal government has an interest, nor provide relief
from uncertainty giving rise to the proceedings. Finally, we
affirm the district court’s denial of attorney’s fees, because
the factors set forth in Mercer v. Duke University, 401 F.3d
199, 204-09 (4th Cir. 2005), militate against a fee award in
this case.
I.
The facts underlying this appeal have been well
articulated by the district court. See Pitrolo v. Cnty. of
Buncombe, N.C., No. 1:06-cv-00199, 2012 WL 4511173, at *1-2
3
(W.D.N.C. Oct. 1, 2012) (“October 1, 2012 Order”) (J.A. 2 155-59).
Therefore, we recite the facts again here only to the extent
they are relevant to the instant appeal.
A.
On May 26, 2006, Appellant filed suit in the Superior
Court of Buncombe County, North Carolina pursuant to Title VII
of the Civil Rights Act, 42 U.S.C. § 2000e, against the County
of Buncombe, North Carolina; the Western North Carolina Regional
Air Quality Agency (“the Agency”); the Agency’s Board of
Directors, and members of the Board in their individual
capacities (collectively, “Appellees”). Appellant claimed the
Agency violated 42 U.S.C. § 2000e-2(m) when it considered her
gender as a motivating factor in its decision to deny her a
promotion to Interim Director of the Board. 3 In her prayer for
relief, Appellant requested “actual damages, liquidated damages,
and punitive damages, together with the costs of the litigation,
including reasonable attorney’s fees and expenses,” and “all
2
Citations to the “J.A.” and the “Supp. J.A.” refer to the
Joint Appendix and Supplemental Joint Appendix filed by the
parties in this appeal.
3
Appellant also claimed Appellees retaliated against her in
violation of Title VII; abridged her right to free speech in
violation of 42 U.S.C. § 1983 and the federal and North Carolina
Constitution; violated the Equal Pay Act, 29 U.S.C. § 206;
committed slander per se; and breached an implied contract with
Appellant. See Supp. J.A. 8-15.
4
other relief, whether legal or equitable, to which she may be
entitled.” Supp. J.A. at 15. However, Appellant did not make
any legal or factual argument in support of declaratory relief
either before or during trial. Appellees removed the case to
the District Court for the Western District of North Carolina on
June 22, 2006.
On March 7, 2007, Appellees moved for summary judgment
as to all of Appellant’s claims. Defs.’ Mot. for Summ. J.,
Pitrolo v. Cnty. of Buncombe, N.C., No. 1:06-cv-00199 (W.D.N.C.
June 22, 2006; filed Mar. 7, 2007), ECF No. 19. The district
court granted summary judgment on October 10, 2007, dismissing
Appellant’s entire case. The district court dismissed
Appellant’s gender discrimination claim in particular because it
concluded the principal evidence supporting this claim was
inadmissible hearsay, and Appellant offered no other direct or
circumstantial evidence of gender discrimination. Mem. & Order
at 14-16, Pitrolo v. Cnty. of Buncombe N.C., No. 1:06-cv-00199
(W.D.N.C. June 22, 2006; filed Oct. 10, 2007), ECF No. 47.
Appellant appealed the order granting summary judgment to this
court, but only to the extent that it dismissed her gender
discrimination and retaliation claims. On March 11, 2009, we
vacated the district court’s order of summary judgment as to
Appellant’s gender discrimination claim and remanded for trial,
but affirmed the district court’s grant of summary judgment on
5
Appellant’s retaliation claim. See Pitrolo v. Cnty. of
Buncombe, N.C., No. 07-2145, 2009 WL 1010634, at *4 (4th Cir.
Mar. 11, 2009) (“Pitrolo I”).
Following trial on July 22, 2009, the jury returned a
verdict finding Appellees unlawfully considered Appellant’s
gender as a motivating factor in the decision not to promote
her, but Appellees would have denied Appellant the promotion
notwithstanding her gender. Jury Verdict, Pitrolo v. Cnty. of
Buncombe, No. 1:06-cv-00199 (W.D.N.C. June 22, 2006; filed July
22, 2009), ECF No. 82. Therefore, Appellant was not awarded any
damages.
On August 7, 2009, Appellant moved for attorney’s fees
and declaratory relief, specifically, a declaration that
Appellees discriminated against her in violation of Title VII,
and to have this declaration placed in her personnel file.
Rather than rule on this motion, the district court entered
judgment as a matter of law in favor of Appellees,
notwithstanding the jury’s verdict. Am. J. at 1-2, Pitrolo v.
Cnty. of Buncombe, N.C., No. 1:06-cv-00199 (W.D.N.C. June 22,
2006; filed Aug. 20, 2009), ECF No. 95. Appellant successfully
appealed that judgment to this court, and we held that as the
prevailing party, Appellant may “seek declaratory relief,
injunctive relief, and attorney’s fees and costs demonstrated to
be directly attributable to her mixed-motive [Title VII] claim.”
6
Pitrolo v. Cnty. of Buncombe, N.C., 407 Fed. App’x 657, 659 (4th
Cir. 2011) (“Pitrolo II”) (internal quotation marks omitted).
In Pitrolo II, we did not, however, consider whether the
district court should grant such relief.
B.
On September 15, 2009, this case was reassigned to
district court Judge Reidinger upon Judge Thornburg’s
retirement. After requesting supplemental briefs on the issue
of attorney’s fees and declaratory relief, the district court
denied Appellant’s motion for declaratory relief in its October
1, 2012 order (the “October 1, 2012 Order”), for two reasons.
First, the district court concluded that Appellant neither
requested declaratory relief nor referenced the statutory source
for that relief in her complaint. In support of this
conclusion, the district court cited one unpublished case from
the Middle District of Florida, and Wright & Miller’s Federal
Practice & Procedure. 4 Second, the district court ruled that “in
any event” it would deny Appellant’s motion for declaratory
relief, explaining,
4
See 4 C. Wright & A. Miller, Federal Practice & Procedure
§§ 1238, 1256 (3d ed. 1998) (“[I]t is necessary for the
plaintiff to . . . provide a short and plain statement of the
claim on which relief may be granted, and include the demand for
[declaratory] relief.”).
7
[a]lthough relief in the form of a
declaratory judgment may be given pursuant
to § 2000e-5(g)(2)(B) in the absence of an
award of damages, such relief is available
only when the plaintiff has succeeded in
serving an important public
purpose . . . Gudenkauf v. Stauffer
Communications, Inc., 158 F.3d 1074, 1080-81
(10th Cir. 1998) . . . . [Appellant] has not
been in the [Appellees’] employment since
2005 [and therefore] a declaratory judgment
would do little more than simply affirm the
jury’s verdict. [Marsal v. East Carolina
University, No. 4:09–cv–126–fl, 2012 WL
3283435, at *9 (E.D.N.C. Aug. 8, 2012)].
October 1, 2012 Order, 2012 WL 4511173, at *3 (internal
quotation marks omitted).
Based on its application of the factors set forth in
Mercer v. Duke University, 401 F.3d 199, 204-09 (4th Cir. 2005),
in the October 1, 2012 Order the district court also declined to
award attorney’s fees, reasoning, (1) while Appellant’s “primary
goal was an award of damages . . . the jury awarded no damages,”
which indicated her “victory [was] in fact purely technical”;
(2) Appellant’s case was not “legally significant to the law of
gender discrimination”; and (3) Appellant’s rejection of several
reasonable settlement offers, coupled with the fact her case
would have a minimal impact “on the development of the law and
on society,” showed the litigation lacked a public purpose and
only served to vindicate Appellant’s own rights. October 1,
2012 Order, 2012 WL 4511173, at *4-7.
8
On October 19, 2012, three years and 35 days after
Judge Reidinger was assigned to this case -- but only 18 days
after he denied Appellant’s motion for declaratory relief and
attorney’s fees -- Appellant filed a motion demanding Judge
Reidinger recuse himself (“Motion to Recuse”). Before Judge
Reidinger ruled on Appellant’s Motion to Recuse, Appellant filed
her Third Notice of Appeal on October 31, 2012, claiming the
district court abused its discretion when it denied her motion
for declaratory relief and attorney’s fees in the October 1,
2012 Order. Then, on November 21, 2012, Appellant filed a
motion pursuant to Federal Rule of Civil Procedure 60(b)(6) to
vacate Judge Reidinger’s orders, particularly the October 1,
2012, Order because he “entered [these] orders while
disqualified pursuant to 28 U.S.C. section 455(b)” (the “First
Motion to Vacate”). J.A. 233. Appellant also filed a
supplemental motion to vacate on November 21, 2012, claiming for
the first time that Appellees disclosed confidential information
obtained during settlement mediation proceedings in violation of
Rule 33 of the Fourth Circuit Rules of Procedure, and the
district court improperly relied on this information in its
October 1, 2012 Order (the “Supplemental Motion to Vacate”).
See id. at 264-65.
The district court denied the Motion to Recuse, the
First Motion to Vacate, and the Supplemental Motion to Vacate in
9
an order dated February 13, 2013 (“February 13, 2013 Order”).
Subsequently, Appellant filed her Amended Third Notice of Appeal
to challenge the February 13, 2013 Order.
In the instant appeal, Appellant asks us to address
the assignments of error listed in both the Third Notice of
Appeal and Amended Third Notice of Appeal, which claim the
district court abused its discretion when it denied each of her
post-trial motions in its October 1, 2012 and February 13, 2013
Orders.
II.
A.
February 13, 2013 Order; Motion to Recuse, First Motion to
Vacate and Supplemental Motion to Vacate
As a court of limited jurisdiction, we must determine
whether we possess jurisdiction to consider any of Appellant’s
arguments. See United States v. Hadden, 475 F.3d 652, 659 (4th
Cir. 2007); Bender v. Williamsport Area Sch. Dist., 475 U.S.
534, 541 (1986) (“[E]very federal appellate court has a special
obligation to satisfy itself . . . of its own jurisdiction . . .
even [if] the parties are prepared to concede it.” (internal
quotation marks omitted)). Therefore, we first address
Appellant’s claim that the district court abused its discretion
when it denied her Motion to Recuse, First Motion to Vacate, and
Supplemental Motion to Vacate in the February 13, 2013 Order.
10
A notice of appeal “must be filed with the district
clerk within 30 days after entry of the judgment or order
appealed from.” Fed. R. App. P. 4(a)(1)(A). Ordinarily, a
notice of appeal can only secure appellate review of specific
orders that (1) have already been entered or announced at the
time of the notice; and (2) are listed in the notice of appeal.
See Fed. R. App. P. 3(c)(1)(B), 4(a)(2). If the party files a
premature notice of appeal, subsequent orders must be appealed
in accordance with the Rules of Appellate Procedure. See Nolan
v. U.S. Dep’t of Justice, 973 F.2d 843, 846 (10th Cir. 1992).
“The effect of a notice of appeal is determined at the time it
is filed.” Trinidad Corp. v. Maru, 781 F.2d 1360, 1362 (9th
Cir. 1986). A party may only amend its notice of appeal to
include (1) any order entered by the district court within 30
days of the order prompting the original notice of appeal; or
(2) an order denying a specific motion listed in Rule
4(a)(4)(A), the filing of which tolls the appeals period, within
30 days of an order disposing of that motion. See Fed. R. App.
P. 4(a)(4)(A), (B)(ii).
A motion pursuant to Federal Rule of Civil Procedure
60(b)(6) tolls the appeals period if the motion “is filed no
later than 28 days after the judgment is entered.” Fed. R. App.
P. 4(a)(4)(A)(vi). If a party fails to file a 60(b) motion in
the trial court within 28 days of the order meriting such
11
relief, the appeals period is not tolled, and the appeal must be
dismissed as untimely as to the underlying order. See id.; see
also Shields v. Ill. Dep’t of Corrections, 746 F.3d 782, 799
(7th Cir. 2014) (dismissing Appellant’s appeal for lack of
jurisdiction because he “filed his Rule 60 motion 30 days after
the district court entered its final judgment”); Johnson v.
Univ. of Rochester Med. Ctr., 642 F.3d 121, 124 (2d Cir. 2011)
(ruling the court “lacks appellate jurisdiction” over an order
denying Appellant’s Rule 60(b) motion because he filed the
original motion “three days after the twenty-eight day tolling
deadline expired”).
1.
We cannot review the February 13, 2013 Order insofar
as it denied Appellant’s Motion to Recuse. Appellant originally
filed her Third Notice of Appeal to contest the October 1, 2012
Order on October 31, 2012. She then attempted to amend her
Third Notice of Appeal to add the February 13, 2013 Order.
However, because the district court entered the February 13,
2013 Order more than 30 days after the October 1, 2012 Order,
Appellant could not amend her original notice to include the
denial of her Motion to Recuse, but was instead required to file
a separate notice of appeal. See Fed. R. App. P. 3(a)(1-2),
4(a)(1)(A). This she failed to do. And, Appellant’s Motion to
Recuse pursuant to 28 U.S.C. § 455(b)(2) cannot be saved by
12
tolling because it is not a motion listed in Rule 4(a)(4)(A),
for which the appeals period may be tolled. Therefore, we lack
jurisdiction to consider the district court’s denial of the
Motion to Vacate.
We also cannot address Appellant’s arguments regarding
the First Motion to Vacate, because it is inseparably
intertwined with Appellant’s Motion to Recuse. We cannot
consider whether the district court abused its discretion when
it denied the First Motion to Vacate without, at the same time,
considering whether Judge Reidinger should have recused himself.
We also lack jurisdiction over this issue because Appellant’s
First Motion to Vacate was untimely as to the underlying Order.
This is because Appellant filed her first 60(b)(6) motion 42
days after the October 1, 2012 Order, and she did not file a
separate notice of appeal regarding the issues complained of in
her First Motion to Vacate.
2.
Likewise, we lack jurisdiction to consider whether the
district court erred when it denied Appellant’s Supplemental
Motion to Vacate because this motion was not timely filed.
Appellant filed her Supplemental Motion to Vacate 112 days after
the district court entered the October 1, 2012 Order, which
allegedly contained confidential information. Therefore, her
13
attempt to amend her Third Notice of Appeal to challenge the
February 13, 2013 Order was ineffective.
Compliance with the Rules of Appellate Procedure is
“mandatory and jurisdictional,” Browder v. Director, Department
of Corrections of Illinois, 434 U.S. 257, 264 (1978) (internal
quotation marks omitted), and Appellant has clearly failed to
follow them. Accordingly, we lack jurisdiction to consider
Appellant’s arguments relating to the February 13, 2013 Order.
B.
October 12, 2012 Order; Motion for Declaratory Relief
We review decisions to grant or deny declaratory
relief for an abuse of discretion. See Wilton v. Seven Falls
Co., 515 U.S. 277, 289-90 (1995).
Appellant offers two reasons why the district court
abused its discretion when it denied her motion for declaratory
relief. First, she posits that Rule 54(c) of the Federal Rules
of Civil Procedure permits a district court to award any relief
to which the prevailing party may be entitled, regardless of
whether the relief was requested in the complaint. Second, she
argues that the declaratory relief she sought would serve a
public purpose, and would do more than simply restate the jury
verdict.
We hold that the district court was required to
entertain whether to award Appellant declaratory relief even if
14
Appellant did not request this relief in her complaint or make
any factual or legal argument in support of a declaratory
judgment. We also hold the district court relied upon an
incorrect legal standard to guide its discretion when it decided
whether to award Appellant’s requested declaration.
Nonetheless, applying the correct standard to this case, we
affirm the district court’s denial of declaratory relief.
Title VII prevents employers from discriminating
against “any individual because of race, color, religion, sex or
national origin.” 42 U.S.C. § 2000e-2(a)(1).
Plaintiffs may prevail if they demonstrate that “race,
color, religion, sex, or national origin was a motivating factor
for any employment practice, even though other factors also
motivated the practice.” 42 U.S.C. § 2000e-2(m). However, if
the employer demonstrates it “would have taken the same action
in the absence of the impermissible motivating factor,” Title
VII restricts the plaintiff’s remedies; “the court . . . may
grant declaratory relief . . . and attorney’s fees and costs,”
but “shall not award damages.” 42 U.S.C. § 2000e-5(g)(2)(B)
(emphasis supplied). By including the word “may” in this
subsection, Congress left the decision of whether to award
declaratory relief to the discretion of the trial judge. See
Sheppard v. Riverview Nursing Ctr., Inc., 88 F.3d 1332, 1335
(4th Cir. 1996) (holding that the term “may” in § 2000e-
15
5(g)(2)(B) “make[s] evident” that the relief it provides “is
discretionary rather than mandatory”). The Court has
interpreted § 2000e-5(g)(2)(B) as creating a “limited
affirmative defense” that narrows the scope of a plaintiff’s
remedies. Desert Palace, 539 U.S. 90, 94 (2003) (internal
quotation marks omitted). Additionally, “because a case
generally does not become a mixed-motive or pretext case until
after the evidence is developed . . . plaintiffs ordinarily will
not know whether their claim implicates § 2000e-5(g)(2)(B) at
the time of filing suit.” Sheppard, 88 F.3d at 1336.
1.
Rule 54(c) of the Federal Rules of Civil Procedure
directs trial courts to “grant the relief to which each party is
entitled, even if the party has not demanded that relief in its
pleadings.” Fed. R. Civ. P. 54(c). We have held that district
courts have a “duty to grant whatever relief is appropriate in
the case on the basis of the facts proved” even if the party has
not demanded that relief in its pleadings, and “[t]he pleadings
serve only as a rough guide to the nature of the case.”
Robinson v. Lorillard Corp., 444 F.2d 791, 803 (4th Cir. 1971);
see Gilbane Bldg. Co. v. Fed. Reserve Bank of Richmond, 80 F.3d
895, 901 (4th Cir. 1996) (“Rule 54(c) . . . commands that the
trial court shall grant the relief to which the party in whose
favor it is rendered is entitled, even if the party has not
16
demanded such relief in the party’s pleadings.” (internal
quotation marks omitted)); see also New Amsterdam Cas. Co. v.
Waller, 323 F.2d 20, 24-25 (4th Cir. 1963) (“Under the
[F.R.C.P.] . . . a plaintiff in his complaint is required only
to set forth a short and plain statement of the claim. He need
not set forth any theory or demand any particular relief for the
court will award appropriate relief if the plaintiff is entitled
to it upon any theory.” (internal quotations omitted)).
However, “[a] party will not be given relief not specified in
its complaint where the failure to ask for particular relief so
prejudiced the opposing party that it would be unjust to grant
such relief.” Atl. Purchasers, Inc. v. Aircraft Sales, Inc.,
705 F.2d 712, 716 (4th Cir. 1983) (internal quotation marks
omitted).
In the context of Title VII, if a plaintiff prevails
on their 42 U.S.C. § 2000e-2(m) claim but is restricted in their
remedy to a declaration, injunction, or award of attorney’s
fees, as was Appellant in this case, we recognize that the jury
made all factual conclusions necessary for the court to award
declaratory relief. Cf. Mercer, 401 F.3d at 207 (“The jury’s
verdict, of course, does represent a factual determination that
Duke was legally responsible for violating Mercer’s rights under
Title IX.”). Therefore, in that circumstance § 2000e-5(g)(2)(B)
and Rule 54(c) together obligate the district court to
17
determine, in its discretion, if declaratory relief is an
appropriate remedy, provided that doing so would not prejudice
the defendant. See Atl. Purchasers, 705 F.2d at 716; cf.
Mercer, 401 F.3d at 207.
In her complaint, Appellant claimed entitlement to
relief pursuant to § 2000e-2(m). The jury rendered findings,
pursuant to § 2000e-5(g)(2)(B), that Appellant’s gender was a
motivating factor in Appellees’ employment action, but that
Appellees would have taken the same action regardless.
Appellant did not request declaratory relief in her complaint,
raising the issue for the first time after trial.
This case is quite similar to Albemarle Paper Co. v.
Moody, 422 U.S. 405 (1974), in which appellants brought their
claim under § 2000e et seq and requested back pay, for the first
time, in a post-trial motion. See id. at 410. The district
court denied the motion in part because appellants had not
requested back pay in their complaint. See id. The Court
dismissed this reasoning, citing Rule 54(c). See id. at 424
(noting, “[i]t is true that Title VII contains no legal bar to
raising back pay claims after the complaint . . . has been
filed, or indeed after a trial on that complaint has been had,”
and Rule 54(c) requires district courts to grant all relief to
which a plaintiff is entitled, absent substantial prejudice).
18
In this case, Appellant filed her original motion for
declaratory relief on August 7, 2009. By virtue of the district
court’s order permitting the parties to supplement their filings
on this issue, Appellees had over a year and a half to consider
their response to Appellant’s motion. As a result, we conclude
there was no prejudice to Appellees, even despite Appellant’s
failure to formally request declaratory relief until after
trial. Therefore, the district court erred when it denied
Appellant declaratory relief based on the fact that Appellant
failed to specifically request such relief prior to trial or to
make any legal or factual argument in favor of a declaratory
judgment.
2.
While § 2000e-5(g)(2)(B)(i) places the power to award
declaratory relief in the district courts’ discretion, “such
discretionary choices are not left to a court’s inclination, but
to its judgment; and its judgment is to be guided by sound legal
principles.” Albermarle Paper Co., 422 U.S. at 416 (internal
quotation marks omitted). “We have . . . enumerated several
factors to guide district courts in their exercise of this
discretion.” Aetna Cas. & Sur. Co. v. Ind-Com Elec. Co., 139
F.3d 419, 421-22 (4th Cir. 1998) (per curiam) (internal
quotation marks omitted).
19
In Aetna, we held that, when deciding whether to grant
declaratory relief pursuant to the Declaratory Judgment Act, 28
U.S.C. § 2201, 5 a district court should consider several factors.
See Aetna, 139 F.3d at 422-24. Among those factors relevant to
this case are whether awarding declaratory relief (1) will
clarify important issues of law in which the forum state has an
interest; (2) will “clarify the legal relations between the
parties” or afford “relief from uncertainty, insecurity, and
controversy giving rise to the proceeding”; and (3) “whether the
declaratory judgment action is being used merely as a device for
procedural fencing.” 6 Id. (internal quotation marks omitted);
see also Am. Cas. Co. of Reading, Pa. v. Howard, 173 F.2d 924,
927 (4th Cir. 1949) (“We think [judicial discretion whether to
grant declaratory relief] should be liberally exercised to
effectuate the purposes of the [Declaratory Judgment Act] and
thereby afford relief from uncertainty and insecurity with
respect to rights, status and other legal relations.”); see also
Edwin Bouchard, Declaratory Judgments 299 (2d ed. 1941) (“The
5
“[A]ny court of the United States, upon the filing of an
appropriate pleading, may declare the rights and other legal
relations of any interested party seeking such declaration.” 28
U.S.C. § 2201 (emphasis supplied).
6
Fencing includes “provid[ing] another forum in a race for
res judicata[,] . . . achiev[ing] a federal hearing in a case
otherwise not removable,” and “forum shopping.” Aetna, 139 F.3d
at 422, 424 (internal quotations omitted).
20
two principal criteria guiding the policy in favor of rendering
declaratory judgments are (1) when the judgment will serve a
useful purpose in clarifying . . . the legal relations at issue
and (2) when it will . . . afford relief from the uncertainty,
insecurity, and controversy giving rise to the proceeding.”).
Citing a Tenth Circuit opinion, the district court
refused to grant Appellant the declaratory relief she requested,
reasoning that declaratory relief pursuant to § 2000e-5(g)(2)(B)
“is available only when the plaintiff has succeeded in serving
an important public purpose.” October 1, 2012 Order, 2012 WL
4511173, at *3 (J.A. 162-63) (citing Gudenkauf v. Stauffer
Commc’ns, Inc., 158 F.3d 1074, 1080-81 (10th Cir. 1998)). The
district court reasoned that, because “the Plaintiff has not
been in the Defendants’ employment since 2005, a declaratory
judgment would ‘do[] little more than simply affirm the jury’s
verdict.’” Id. at *3. However, these conclusions flow from
inapplicable legal standards.
The district court’s reliance on authority from the
Tenth Circuit was misplaced. The Gudenkauf case did not address
whether and when a district court should order declaratory
relief -- in fact, it does not discuss declaratory relief;
instead, that case was focused on the issue of when it is
appropriate to award attorney’s fees. Gudenkauf, 158 F.3d at
1080 (“Justice O’Connor’s concurring opinion in Farrar
21
recognizes that recovery [of attorney’s fees] may be had even
where actual damages are minimal or nonexistent if plaintiff
succeeds in serving an important public purpose.”). It is well-
established law that whether a lawsuit in toto serves “important
public purpose” is only relevant to a district courts’
determination of whether to award attorney’s fees via § 2000e-
5(g)(2)(B)(i). 7 See Sheppard, 88 F.3d at 1336 (district courts
should consider “whether the public purposes served by resolving
the dispute justifies the recovery of fees.” (citing Farrar v.
Hobby, 506 U.S. 103, 121-22 (1992) (O’Connor, J., concurring));
see also Mercer, 401 F.3d at 204 (“[W]hen determining whether
attorney’s fees are warranted in a nominal-damages case, courts
should consider ‘the extent of relief, the significance of the
legal issue on which the plaintiff prevailed, and the public
purpose served’ by the litigation.” (quoting Farrar, 506 U.S.
103 at 122 (O’Connor, J., concurring)). Whether the declaratory
relief requested restates the verdict is primarily relevant to
the district courts’ determination of whether to award
attorney’s fees, and is not directly related to the question of
7
Gudenkauf also expressly “disagree[d] . . . with the
Fourth Circuit Court of Appeals . . . that Farrar should be
applied in a mixed motive case to deny all but a nominal fee
recovery simply because a mixed motive plaintiff does not
recover money damages . . . . See Sheppard v. Riverview Nursing
Center, Inc., 88 F.3d 1332 (4th [Cir. 1996]).” Gudenkauf, 158
F.3d at 1080.
22
whether an award of declaratory relief is warranted.
See Sheppard, 88 F.3d at 1336-38 (discussing the extent of
declaratory relief sought as a factor in the decision of whether
to award attorney’s fees).
Instead, the Aetna factors serve as a useful guide for
situations, such as this, where the district court is tasked
with making a discretionary determination of whether it is
appropriate to award declaratory relief pursuant to § 2000e-
5(g)(2)(B)(i). We are aware that the district courts’
assessment of whether to award declaratory relief in a
particular case must be “measured against the purposes which
inform Title VII,” namely “to achieve equality of employment
opportunities and remove barriers that have operated in the past
to favor an identifiable group . . . over other employees.”
Albemarle Paper Co., 422 U.S. at 417. We are also mindful that
we “must be careful not to apply rules applicable under one
statute to a different statute without careful and critical
examination.” Fed. Express Corp. v. Holowecki, 552 U.S. 389,
393 (2008). Indeed, the Aetna factors are consistent with the
purposes of Title VII and are more likely to generate consistent
outcomes than the “important public purpose” standard employed
by the district court.
Applying the Aetna factors to the case now before us,
we conclude they weigh against a declaratory judgment. First,
23
the declaratory relief Appellant sought would do nothing to
clarify any issue of law in which the forum state, or indeed the
federal government, has an interest. While Appellant sought a
declaration that effectively restates the verdict –- a fact
which, in and of itself, is not determinative to our analysis –-
we recognize the verdict itself in this case did not represent a
significant development in Title VII such that the law requires
clarification. For example, this is not a case such as Mercer
where the jury’s verdict represented an evolution in the law.
See, e.g., Mercer, 401 F.3d at 206-07.
Second, the declaration Appellant requested would not
clarify the post-trial legal rights of the parties and would not
resolve any uncertainties. In Sheppard, the plaintiff prevailed
on her § 2000e-2(m) gender discrimination claim, but pursuant to
§ 2000e-5(g)(2)(B) the jury entered findings that defendant
would have made the same employment decision not withstanding
her gender. There, the district court entered a declaration as
follows:
[T]he Court hereby declares that the
plaintiff underwent an unlawful employment
practice, in that her sex (pregnancy status)
was a motivating factor in her layoff on
4/13/92 but that other factors also
motivated that layoff and that this judgment
constitutes the whole of the relief to which
the plaintiff is entitled, except for costs
(including attorney’s fees) as therein set
forth.
24
Order and J., Sheppard v. Riverview Nursing Ctr., Inc., No.
1:93-cv-02663 (D. Md. Sept. 13, 1993; filed Nov. 4, 1994), ECF
No. 36. This declaration was useful for clarifying the legal
rights of the parties in that case because it explained the
effect of the mixed-motive verdict upon the scope of remedies
available to the plaintiff. Here, the declaration Appellant
requested –- “that defendant’s failure to promote her to the
position of Interim Director of the Agency was motivated by her
gender in violation of Title VII” -- would not have a similar
effect. J.A. 22. Such a declaration would not resolve any
outstanding uncertainties, but would simply reiterate the jury’s
verdict that Appellees are liable for violating Title VII. We
are satisfied, based on our analysis of the Aetna factors, that
the district court did not err when it denied Appellant’s motion
for declaratory relief. 8
C.
October 1, 2012 Order; Motion for Attorney’s Fees
“[W]e review the district court’s [determinations on]
attorneys’ fees under the abuse of discretion standard.”
Lefemine v. Wideman, 758 F.3d 551, 554 (4th Cir. 2014).
Awarding attorney’s fees through 42 U.S.C. § 2000e-5(g)(2)(B) is
obviously not appropriate when a plaintiff loses its case. But
8
The third factor -- concern as to procedural fencing -- is
not applicable to this case.
25
they are similarly inappropriate “when the plaintiff’s success
is purely technical or de minimis.” Farrar, 506 U.S. at 117
(1992) (O’Connor, J., concurring). In such a case, “no fees can
be awarded” because the “plaintiff either has failed to achieve
victory at all, or has obtained only a Pyrrhic victory for which
the reasonable fee is zero.” Id.; see also Mercer, 401 F.3d at
203 (extending this rationale to Title IX cases); Sheppard, 88
F.3d at 1336, 1339 (extending this rationale to Title VII
cases). Therefore, when the judgment lacks significant damages
recovery, and yet the plaintiff seeks attorney’s fees, courts
must consider the following factors: (1) the extent of relief
sought compared to the relief obtained; (2) the significance of
the legal issues on which the plaintiff prevailed; and (3)
whether the litigation served a public purpose. See Farrar, 506
U.S. at 122 (O’Connor, J., concurring); Mercer, 401 F.3d at 204;
Sheppard, 88 F.3d at 1335-36.
1.
We take into account the extent of the recovery
because “a substantial difference between the judgment recovered
and the recovery sought suggests that the victory is in fact
purely technical.” Farrar, 506 U.S. at 121; see also Mercer,
401 F.3d at 205 (applying Farrar to Title IX cases). Courts
must first identify the “relief sought.” In doing so, we are
required to determine the objective “purpose” of the lawsuit.
26
Mercer, 401 F.3d at 204-06. If the rule were otherwise,
plaintiffs that only receive nominal damages (or no damages)
would seek attorney’s fees on the basis that the only relief
they actually wanted was a liability finding or a declaratory
judgment. See id. at 206. If the plaintiff only seeks monetary
damages, the purpose of the lawsuit is likely to obtain monetary
damages, and the appropriate comparison is between the amount of
damages sought and the measure of damages awarded. “[T]he most
critical factor in determining the reasonableness of a fee award
is the degree of success obtained.” Farrar, 506 U.S. at 114
(internal quotation marks omitted).
2.
When determining whether to award attorney’s fees, we
also measure the legal import of the civil rights claim on which
the plaintiff prevailed. Farrar, 506 U.S. at 122; Mercer, 401
F.3d at 206. We have interpreted this factor to require more
than a simple victory on a civil rights claim or a jury verdict
stating the defendant engaged in unlawful discrimination. See
Mercer, 401 F.3d at 206-07 (noting “the issue on which Mercer
prevailed is an important one”). For this factor to weigh
heavily in the courts’ determination of whether to enter a fee
award, the case should be significant to the body of civil
rights law because it is novel, establishes important precedent,
or otherwise advances the law. See id. at 207. For example, in
27
Mercer, we found it persuasive that the verdict “gave rise to a
first-of-its-kind liability determination,” namely that Title
IX’s contact-sports exemption does not permit collegiate sports
teams to discriminate against women who already play contact
sports. Id.
3.
And finally, we consider “whether the public purposes
served by resolving the dispute justifies the recovery of fees.”
Mercer, 401 F.3d at 207 (internal quotation marks omitted).
“[S]uccess might be considered [worthy of fees] if it also
accomplish[es] some public goal . . . .” Sheppard, 88 F.3d at
1336 (internal quotation marks committed). “Typical civil
rights cases” that only serve to vindicate the plaintiff’s
rights and have no far-reaching effect are generally not worthy
of attorney’s fees. Mercer, 401 F.3d at 210; accord Pino v.
Locascio, 101 F.3d 235, 239 (2d Cir. 1996) (“The vast majority
of civil rights litigation does not result in ground-breaking
conclusions of law, and therefore, will only be appropriate
candidates for fee awards if a plaintiff recovers some
significant measure of damages or other meaningful relief.”).
Lastly, “refusing a reasonable offer of settlement promotes few
public interests when the plaintiff ultimately receives a less
favorable recovery after trial” and “courts may consider a
plaintiff’s refusal of a settlement offer as one of several
28
proportionality factors guiding their exercise of discretion
under § 2000e-5(g)(2)(B).” Sheppard, 88 F.3d at 1337.
This third factor is sometimes discussed in connection
with the second because both share a common core -- a civil
rights plaintiff’s case must be somewhat extraordinary to
justify an award of attorney’s fees if the jury awarded no or
only nominal damages and the plaintiff failed to request other
relief or obtained none. See Mercer, 401 F.3d at 207-12 (noting
plaintiff’s failure to request declaratory relief having impact
beyond her case or to obtain monetary damages did not prevent
court from awarding attorney’s fees, because her case “marked a
milestone in the development of the law under Title IX”).
4.
We are satisfied the district court did not abuse its
discretion when it denied Appellant’s motion for attorney’s fees
because its decision was supported by the Mercer factors.
First, while it is obvious from the record that the purpose of
Appellant’s lawsuit was to recover money damages, she received
none. Appellant did not formally request declaratory relief --
and in fact did not mention declaratory relief at all -- until
after the jury’s verdict. 9 Thus, Appellant’s victory was merely
9
Appellant’s counsel emphasized damages in his closing
argument:
(Continued)
29
technical. Second, with regard to the legal significance of the
issues upon which Appellant prevailed, the district court noted,
“to the extent that Plaintiff may claim success, it was not
material to the public good,” and “this factor does not weigh in
favor of attorney’s fees.” October 1, 2012 Order, 2012 WL
4511173, at *5-6 (J.A. 168). The core of Appellant’s case had
little to no precedential value to the body of Title VII case
law. And third, the district court found “the only goal [of
Appellant’s case] was personal to the Plaintiff and to her
attorney’s desire for an award of counsel fees,” and, therefore,
she failed to “accomplish some public goal other than occupying
the time and energy of counsel, court, and client.” Id.
The district court did not abuse its discretion when it
denied Appellant’s motion for attorney’s fees. Appellant
Another issue you’ll be asked to address is:
What amount of compensatory damages, if any,
do you find Melanie Pitrolo should recover?
And then there’s a whole list of
instructions that you look at. . . . [The
list] talks about emotional distress; it
talks about sort of loss of career path; it
talks about pecuniary damages. . . . If you
think she’s entitled to any compensatory
damages, then you would write a number in
there.
Tr. of Trial Proceedings Vol. 3 at 557, Pitrolo, 2009 WL 2600906
(W.D.N.C. June 22, 2006; filed Dec. 23, 2009), ECF No. 103.
30
obtained none of the relief she sought in her complaint, and her
case was neither legally significant nor did it serve a public
purpose.
III.
For the foregoing reasons, we dismiss for lack of
jurisdiction the assignments of error regarding Appellant’s
Motion to Recuse, First Motion to Vacate, and Supplemental
Motion to Vacate. We affirm the district court’s denial of
Appellant’s motion for declaratory relief and attorney’s fees.
DISMISSED IN PART
AND AFFIRMED IN PART
31
Melanie Pitrolo v. County of Buncombe, NC
Court: Court of Appeals for the Fourth Circuit
Date filed: 2014-10-20
Citations: 589 F. App'x 619
Copy CitationsCombined Opinion