PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ROSEMARY CROMICH MCDONNELL,
Plaintiff-Appellee,
v. No. 97-1925
MILLER OIL COMPANY, INCORPORATED,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Robert G. Doumar, Senior District Judge.
(CA-95-638-2)
Argued: December 4, 1997
Decided: January 22, 1998
Before WILKINS and HAMILTON, Circuit Judges, and
MICHAEL, Senior United States District Judge for the
Western District of Virginia, sitting by designation.
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Remanded by published opinion. Judge Wilkins wrote the opinion, in
which Judge Hamilton and Senior Judge Michael joined.
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COUNSEL
ARGUED: Stanford Beryl Adler, ADLER, ROSEN & PETERS,
P.C., Virginia Beach, Virginia, for Appellant. Matthew Wayne Tif-
fany, W. WAYNE TIFFANY, ATTORNEY AND COUNSELOR AT
LAW, Virginia Beach, Virginia, for Appellee. ON BRIEF: Lisa
Ehrich, ADLER, ROSEN & PETERS, P.C., Virginia Beach, Virginia,
for Appellant.
OPINION
WILKINS, Circuit Judge:
Miller Oil Company, Incorporated (Miller Oil) appeals a decision
of the district court awarding attorneys' fees to Rosemary Cromich
McDonnell pursuant to § 107(a)(3) of the Family and Medical Leave
Act (FMLA) of 1993. See 29 U.S.C.A. § 2617(a)(3) (West Supp.
1997). For the reasons that follow, we remand for further proceedings
consistent with this opinion.
I.
In December 1994, McDonnell--who had been employed by Mil-
ler Oil since 1990--went on maternity leave. She attempted to return
to her employment with Miller Oil in February 1995, but instead was
terminated. She subsequently filed suit against Miller Oil under the
FMLA, claiming that Miller Oil had violated the FMLA by failing to
restore her to the position she had held prior to taking maternity leave.
See 29 U.S.C.A. § 2614(a)(1)(A) (West Supp. 1997). At trial, the par-
ties sharply disputed the events leading to McDonnell's termination.
McDonnell asserted that upon notifying Miller Oil that she was ready
to return to work, she was informed that her position was no longer
available and that there were no other openings. In contrast, Miller
Oil maintained that McDonnell had declared that she no longer
wished to work full time, that she refused all of the part-time posi-
tions offered to her, and that she gave the impression that she pre-
ferred not to work at all. Miller Oil further contended that it agreed
to terminate McDonnell--rather than accept her voluntary resignation
--so that she could receive unemployment benefits. Additionally,
Miller Oil presented evidence concerning McDonnell's failure to mit-
igate her damages by engaging in a meaningful search for other
employment.
At the conclusion of the trial, a jury found in favor of McDonnell
on her claim under the FMLA, but awarded zero damages. The dis-
trict court modified the verdict to award nominal damages of $1; pur-
suant to statute, this amount was doubled to $2 and prejudgment
interest of $.10 was added. See 29 U.S.C.A.§ 2617(a)(1) (West Supp.
1997). McDonnell thereafter moved for a new trial on the issue of
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damages. The district court denied the motion, and we affirmed. See
McDonnell v. Miller Oil Co., 110 F.3d 60 (4th Cir. 1997) (per curiam)
(unpublished table decision).
McDonnell subsequently moved for an award of attorneys' fees
pursuant to 29 U.S.C.A. § 2617(a)(3). Observing that the FMLA man-
dates an award of fees when a plaintiff has received a judgment, the
district court concluded that any such award must be"meaningful."
McDonnell v. Miller Oil Co., 968 F. Supp. 288, 293 (E.D. Va. 1997).
Thus, although the court noted that its preference would be to award
no attorneys' fees, see id., it nevertheless awarded $19,698.81 in
fees* and an additional amount for costs, see id. at 295.
II.
The FMLA provides in pertinent part that the district court "shall,
in addition to any judgment awarded to the plaintiff, allow a reason-
able attorney's fee ... to be paid by the defendant." 29 U.S.C.A.
§ 2617(a)(3). Miller Oil does not dispute that this statutory language
mandates an award of fees when the plaintiff receives a judgment in
an action under the FMLA, as McDonnell did here. Rather, Miller Oil
contests the calculation of the fee award, arguing that the amount
awarded is unreasonable in light of the fact that McDonnell received
only nominal damages. We review the amount of an award of attor-
neys' fees only to determine whether the district court has abused its
discretion. See Colonial Williamsburg Found. v. Kittinger Co., 38
F.3d 133, 138 (4th Cir. 1994). Although reversal for abuse of discre-
tion should be reserved for those instances in which the district court
is "clearly wrong," id., "[a] district court by definition abuses its dis-
cretion when it makes an error of law," Koon v. United States, 116
S. Ct. 2035, 2047 (1996). See Daly v. Hill, 790 F.2d 1071, 1085 (4th
Cir. 1986).
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*The amount awarded was ten percent less than the amount requested
by McDonnell. The district court based the reduction on the fact that "at
least 10 percent of the attorneys' time both in court and out of court was
spent attempting to prove damages," an effort at which they failed.
McDonnell, 968 F. Supp. at 295. McDonnell does not challenge this
reduction.
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In calculating an award of attorneys' fees, a district court should
"determine[ ] a `lodestar' figure by multiplying the number of reason-
able hours expended times a reasonable rate." Daly, 790 F.2d at 1077.
In deciding what constitutes a "reasonable" number of hours and rate,
the district court generally is guided by the following particular fac-
tors:
"(1) the time and labor expended; (2) the novelty and diffi-
culty of the questions raised; (3) the skill required to prop-
erly 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, rep-
utation 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 relationship
between attorney and client; and (12) attorneys' fees awards
in similar cases."
EEOC v. Service News Co., 898 F.2d 958, 965 (4th Cir. 1990) (quot-
ing Barber v. Kimbrell's, Inc., 577 F.2d 216, 226 n.28 (4th Cir.
1978)).
As the Supreme Court has recognized, "the most critical factor" in
calculating a reasonable fee award "is the degree of success obtained,"
and when "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." Hensley
v. Eckerhart, 461 U.S. 424, 436 (1983); see Farrar v. Hobby, 506
U.S. 103, 114-15 (1992). Thus, even when an award of attorneys' fees
is mandatory, the district court may decrease the amount of fees that
might otherwise be awarded in order to account for the plaintiff's lim-
ited success. See Carroll v. Wolpoff & Abramson , 53 F.3d 626, 627,
629-30 (4th Cir. 1995) (concluding that district court did not abuse its
discretion in awarding only $500 in attorneys' fees pursuant to a man-
datory fee provision--in contrast to the plaintiff's request for almost
$9,800--when the plaintiff received only $50 in statutory damages);
see also Burnley v. Short, 730 F.2d 136, 141 (4th Cir. 1984) (explain-
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ing that even when an award of attorneys' fees is mandatory, the
amount to be awarded remains "within the sound discretion of the
trial court"). In accounting for the plaintiff's limited success, a court
should examine "the size of the proposed attorney's fee ... award in
comparison with the total damage award." Thomas v. Peacock, 39
F.3d 493, 506 (4th Cir. 1994), rev'd on other grounds, 516 U.S. 349
(1996). "Such a comparison promotes the court's`central' responsi-
bility to `make the assessment of what is a reasonable fee under the
circumstances of the case,'" for "the awarding of nominal damages ...
highlights the plaintiff's failure to prove actual, compensable injury."
Farrar, 506 U.S. at 114-15 (quoting Blanchard v. Bergeron, 489 U.S.
87, 96 (1989)).
Here, it is unclear whether the district court understood its broad
discretion to adjust even a mandatory award of attorneys' fees to
account for the limited nature of McDonnell's victory. The court
noted that if the fee provision of the FMLA was permissive rather
than mandatory, the court would not have awarded any fees "because
a jury awarding a plaintiff zero dollars may well be tantamount to a
finding for the defendant perversely thus expressed." McDonnell, 968
F. Supp. at 293 (internal quotation marks omitted). Indeed, in discuss-
ing the degree of McDonnell's success in the merits phase of the liti-
gation, the court commented that she "won a very limited victory, and
... she was very fortunate to get even that." Id. at 295. But, "because
of the distinctive language in the FMLA's attorney's fee provision,"
the court concluded that McDonnell was entitled to"some meaningful
measure of attorney's fees, despite [her] rather limited victory at
trial." Id. at 293.
If the district court misunderstood the nature and extent of its abil-
ity to determine a reasonable amount of attorneys' fees notwithstand-
ing the mandatory nature of the fee provision of the FMLA, the
resulting fee award is the product of legal error and thus constitutes
an abuse of discretion. See Daly, 790 F.2d at 1085. Whether such a
misunderstanding existed, however, is not entirely clear in light of the
decision of the court to reduce the total fee award to account for
McDonnell's failure to prove damages, indicating that the district
court may in fact have understood its discretion and exercised it
accordingly. Under these circumstances, we believe the best course is
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to remand the case for the district court to reconsider its award in light
of this opinion.
III.
Because it is not clear whether the district court correctly under-
stood the nature and extent of its discretion to adjust a mandatory
attorneys' fee award to account for the limited success achieved by
the plaintiff, we remand for reconsideration of the award in light of
this opinion.
REMANDED
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