Melanie Pitrolo v. County of Buncombe, NC

UNPUBLISHED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Dismissed in part and affirmed in part by unpublished per curiam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Unpublished opinions are not binding precedent in this circuit.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