[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-14734 ELEVENTH CIRCUIT
MAY 27, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 07-80159-CV-DMM
CHRISTOPHER BIVINS,
Plaintiff-Appellant,
versus
WRAP IT UP, INC.,
d.b.a. Nature's Way Cafe,
ANNIE RASO,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(May 27, 2010)
Before CARNES, MARTIN and KRAVITCH, Circuit Judges.
PER CURIAM:
This case is before us again for consideration of the award of attorney’s fees
in this discrimination case. After a bench trial resulted in a verdict and $10,000
damages award in his favor, plaintiff Bivins sought more than $ 245,000 for
attorney’s fees, expert fees, and costs under 42 U.S.C § 1988. The district court
reduced the number of hours billed and calculated the lodestar, and then further
reduced the fee award by an additional across-the-board reduction. On appeal, we
vacated and remanded because the district court had erred in calculating the
lodestar and in adjusting the lodestar downward by 50 percent. Bivins v. Wrap It
Up, Inc., 548 F.3d 1348 (11th Cir. 2008). On remand, Bivins filed a motion
seeking additional fees and costs for the work done on appeal.
In reconsidering the size of the fee award, the district court expressed
concern over the requested amounts. Stating that the “legal significance of the
civil rights violated and vindicated in this case do not rise to a level that justifies
the attorney’s fees requested,” the district court calculated the fees and costs and
applied an 85-percent across-the-board reduction. The district court noted that
Bivins had already received some monies from the defendants for fees and reduced
the total amount due. Bivins’ counsel subsequently notified the court that they had
received additional payments, and they moved the court to amend the fees and
costs order. The court amended the order to show $5,605.02 due. Bivins now
appeals.
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Bivins argues that the district court abused its discretion by applying an
85-percent reduction across the board because this reduction failed to take into
account all of the lodestar factors as enunciated in Johnson v. Georgia Highway
Express, 488 F.2d 714 (5th Cir. 1974),1 improperly emphasized the disparity
between the verdict award and amount of fees, and ignored the degree of success at
the trial stage of litigation. He contends that there are limited circumstances in
which the court is permitted to adjust the lodestar and argues that the court failed to
follow this court’s mandate when it engaged in the same calculation this court
previously rejected. Bivins advises this court that the extensive amount of time
necessary in this litigation was due to Raso’s own litigious behavior. Bivins also
urges this court to recalculate the lodestar rather than remand for a second time.
“We review a district court’s order awarding attorney fees for an abuse of
discretion, which occurs if the court fails to apply the proper legal standard or to
follow proper procedures in making the determination, or bases an award upon
findings of fact that are clearly erroneous.” Gray ex rel. Alexander v. Bostic, 570
F.3d 1321, 1324 (11th Cir. 2009) (citations and quotation marks omitted). Under
the abuse of discretion standard, there is “usually a range of choices” available to
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), this
court held that all decisions handed down by the former Fifth Circuit before the close of business
on September 30, 1981, are binding precedent in the Eleventh Circuit. We note that Johnson has
been overruled on other grounds. Blanchard v. Bergeron, 489 U.S. 87 (1989).
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the district court, and “there is not only one right choice for the court to make.
This is true even though we would have gone the other way had it been our call.”
Id.
As a prevailing party, Bivins is entitled to attorney’s fees. Gray, 570 F.3d at
1324. To determine the amount of fees due, courts use the lodestar approach and
multiply the number of hours reasonably expended by a reasonable hourly rate.
Hensley v. Eckerhart, 461 U.S. 424, 433-34 (1983). When considering what
constitutes a reasonable hourly rate, the court may consider the following factors:
(1) the time and labor required; (2) the novelty and difficulty of the
questions; (3) the skill requisite to perform the legal services properly;
(4) the preclusion of other employment by the attorney due to
acceptance of the case; (5) the customary fee in the community;
(6) whether the fee is fixed or contingent; (7) time limitations imposed
by the client or circumstances; (8) the amount involved and the results
obtained; (9) the experience, reputation, and the ability of the
attorney; (10) the “undesirability” of the case; (11) the nature and
length of the professional relationship with the client; and (12) awards
in similar cases.
Johnson, 488 F.2d at 717-19.2 That a plaintiff succeeds in only a limited way does
not strip him of prevailing-party status, but the degree of his success is “the most
critical factor in determining the reasonableness of a fee award.” Farrar v. Hobby,
506 U.S. 103, 114 (1992) (quotation marks omitted); see also Hensley, 461 U.S. at
2
“Although [this] balancing test has since been displaced by the lodestar formula, we
have expressed our approval of district courts considering the Johnson factors in establishing a
reasonable hourly rate.” Loranger, 10 F.3d at 781 n.6 (citation omitted).
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436. There is a “strong presumption” that the lodestar reflects a reasonable sum
the attorneys deserve. Pennsylvania v. Del. Valley Citizens’ Council for Clean Air,
478 U.S. 546, 565-66 (1986). If the district court finds that the number of hours
claimed is unreasonably high, the court may either conduct an hour-by-hour
analysis or it may reduce the hours using an across-the-board cut. Loranger v.
Stierheim, 10 F.3d 776, 783 (11th Cir. 1994). Any reductions to the requested
hours must be concisely and clearly explained to allow for our review; otherwise,
we must remand. Id.
A. Fees for Work Before the District Court
Our review establishes that the district court properly calculated the fees
using the lodestar. The district court considered the number of hours each attorney
claimed, and, instead of conducting an hour-by-hour review of the attorneys’ work,
the court applied an 85-percent reduction across the board.3 In making this
reduction, the court explained that the case was not novel or complex, it did not
involve a lengthy trial, and there was a de minimus public benefit at stake. The
court compared the case to other discrimination actions and concluded that
3
The district court determined that a reasonable hourly rate for the attorneys involved
was less than the amount the attorneys had requested. The attorneys have not challenged the
district court’s determination of the hourly rate for their work before the district court. They
have, however, challenged the district court’s reduction in their hourly rates for the work done
on the first appeal.
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Bivins’s action was not of the same caliber as landmark civil-rights cases that had
served an enormous public good. The court expressed its concern for the number
of hours claimed for various aspects of the case, but instead of going through and
reducing hour by hour, it chose to apply the across-the-board reduction.
The district court’s statements show that it correctly calculated the lodestar,
properly considered the Johnson factors, and provided sufficient explanation to
enable appellate review.
Essentially, Bivins’s attorneys disagree with the district court’s conclusion
that a case resulting in a $10,000 damage award was not worth $245,000 in fees
and costs. A small award does not “automatically indicate that a particular case is
of little importance.” Gray, 570 F.3d at 1324. The court’s decision to apply an 85-
percent across-the-board reduction is troublesome given the purpose behind
§ 1988. But whether we agree with the district court’s calculations is not relevant,
and the fact that we may disagree does not mean the court abused its discretion.
B. Fees for Work on Appeal
The court determined that the length of time the attorneys claimed was
excessive for a simple appeal that had been decided without oral argument. After
determining a reasonable hourly rate for the attorneys, which was less than the
amount requested by the attorneys, the court applied a 40-percent across-the-board
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reduction. In doing so, the court explained that there were no novel legal issues
involved, the case was not an “undesirable appeal,” and it did not require a higher
level of skill.
On review, we cannot say the district court abused its discretion. The
attorneys requested more than $25,000 in fees to litigate their first appeal. The
issue on appeal concerned only the fee award and did not involve the merits of the
discrimination claim. Given the limited nature of the appeal, the district court did
not abuse its discretion in finding that the time spent and the amount requested
were excessive.
Because the district court correctly determined the lodestar amount and did
not abuse its discretion in calculating the amount of fees due on appeal, we have no
reason to overturn its determination of fees and costs. Accordingly, the district
court’s award of fees and costs is
AFFIRMED.
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