IN THE COURT OF APPEALS OF IOWA
No. 15-0852
Filed March 23, 2016
DENNIS L. SMITH,
Plaintiff-Appellee,
vs.
IOWA STATE UNIVERSITY OF SCIENCE AND
TECHNOLOGY, STATE OF IOWA,
Defendants-Appellants.
________________________________________________________________
Appeal from the Iowa District Court for Story County, Kurt J. Stoebe,
Judge.
Iowa State University and the State of Iowa appeal the district court’s
assessment of attorney fees rising out of a former employee’s claims for
intentional infliction of emotional distress and violations of the whistleblowing
statute. REVERSED AND REMANDED.
Thomas J. Miller, Attorney General, and Diane M. Stahle, Assistant
Attorney General, for appellants.
William W. Graham and Aimee R. Campbell of Graham, Ervanian
& Cacciatore, L.L.P., Des Moines, for appellee.
Considered by Vogel, P.J., and Doyle and Bower, JJ.
2
VOGEL, Presiding Judge.
Iowa State University and the State of Iowa (the State) appeal the district
court’s assessment of attorney fees rising out of Dennis Smith’s claims for
intentional infliction of emotional distress and violations of the whistleblowing
statute.1 The State asserts the district court abused its discretion in awarding all
of Smith’s attorney fees in light of the fact the attorney-fee claim included work on
matters for which there is no fee-shifting statute and included work on matters on
which Smith was not successful. The State asks that we reduce the fee award
accordingly.
The facts of the underlying case are thoroughly conveyed in the supreme
court’s opinion Smith v. Iowa State University of Science & Technology, 851
N.W.2d 1, 4-18 (Iowa 2014), and we need not repeat them here. The supreme
court upheld the jury’s award to Smith for damages for intentional infliction of
emotional distress in the amount of $500,000.00, but it reduced the district
court’s award of damages for violations of the whistleblowing statute from an
1
The whistleblowing statute is contained in Iowa Code section 70A.28(2) (2007), which
provides, in part:
A person shall not discharge an employee from or take or fail to
take action regarding an employee’s appointment or proposed
appointment to, promotion or proposed promotion to, or any advantage in,
a position in a state employment system administered by, or subject to
approval of, a state agency as a reprisal for a failure by that employee to
inform the person that the employee made a disclosure of information
permitted by this section, or for a disclosure of any information by that
employee to a member or employee of the general assembly, a
disclosure of information to the office of citizens’ aide, or a disclosure of
information to any other public official or law enforcement agency if the
employee reasonably believes the information evidences a violation of
law or rule, mismanagement, a gross abuse of funds, an abuse of
authority, or a substantial and specific danger to public health or safety.
3
initial award of $784,027.40 to $150,000.00. Smith, 851 N.W.2d at 38.2 The
total damage award was reduced on appeal from $1,284,027.40 to $650,000.00.
Id. at 4.
Following the supreme court’s decision, the case returned to the district
court, which had previously deferred ruling on Smith’s attorney fee request until
after the appeal was final. The case was then ripe for a determination of the
amount of attorney fees owed to Smith pursuant to the whistleblowing statute.
See Iowa Code § 70A.28(5)(a) (“A person who violates subsection 2 is liable to
an aggrieved employee for affirmative relief including reinstatement, with or
without back pay, or any other equitable relief the court deems appropriate,
including attorney fees and costs.” (emphasis added)). The district court
awarded a total of $368,607.35 for attorney fees and costs—the total amount
requested by Smith minus $3861.86 for costs related to expert witness fees and
deposition costs that were not recoverable. See id. § 622.72 (limiting expert
witness fees to $150 per day); Iowa R. Civ. P. 1.716 (permitting the recovery of
deposition costs for “only such portion . . . as were necessarily incurred for
testimony offered and admitted upon the trial”). With respect to the attorney fees,
the district court determined:
[A]ll of the plaintiff’s claims, successful and unsuccessful, involved
a common body of facts. The defendants’ improper actions by
which ISU was found liable for [intentional infliction of emotional
distress] and Whistleblower violations were intentional. Thus, the
work the plaintiff’s attorneys exerted in furtherance of each of those
claims was inseparable.
2
The figures used by the supreme court for the amount of reputation damages under the
whistleblowing statute were inconsistent. Smith, 851 N.W.2d at 33–34, 38. The parties
both agree in this appeal the supreme court affirmed an award of $150,000.00 for
reputation damages; thus, that is the figure we will use.
4
It would be impractical to require the Court to sift through all
of the legal work to determine whether each hour was related to a
particular claim. “Rather, [t]he District Court must look at the whole
picture and, using independent judgment with the benefit of
hindsight, decide on a total fee appropriate for handling the
complete case.”
The fees incurred in pursuit of the appeal and during
preparation of the application for attorney fees are also related to
the case in chief and are recoverable.
ISU has also advanced a theory that the Court should adopt
a percentage of attorney fee recovery commensurate with the
percentage of recovery. This demonstrates the impossibility of
accurately allocating the evidentiary value of the work. The Court is
not persuaded that a percentage award is fair or reasonable.
ISU has also argued that the award of fees should not
exceed the amount recovered. This argument is also not
reasonable. The facts necessary to prove the whistleblower claim
were voluminous, complex, and labor-intensive. There were
innumerable electronic communications by and between the
defendants. The defendants were not forthcoming in establishing
liability or the facts of the case. This is demonstrated by ISU’s
steadfast refusal to assume the liability for Pamela Reinig until the
close of the evidence. The Court finds that the requested attorney
fees, subject to the following redactions, is reasonable.
(Citations omitted.)
On appeal, the State asserts $22,485.00 of the requested attorney fees
was for (1) time spent on an appeal brief solely related to the intentional-infliction-
of-emotional-distress claim, (2) time spent working on a separate lawsuit and
various claims that were voluntarily dismissed by Smith or dismissed by the
court,3 (3) time spent working on other actions that were never filed, and (4) time
spent talking to the media about the case. The State also asserts there is
undoubtedly other time spent working solely on the intentional-infliction-of-
3
The State notes Smith’s claim against the Board of Regents for breach of contract was
dismissed by the court. Claims for conspiracy and defamation were voluntarily
dismissed immediately before the case was submitted to the jury. In addition, the district
court refused to allow Smith to add claims of retaliatory discharge immediately before
trial.
5
emotional-distress claim that cannot be identified due to poor recordkeeping. It
asks that the fee award be reduced to account for this improper “block billing.”
In addition to requesting a reduction based on work that was not
performed on the whistleblowing claims, the State also asserts the attorney-fee
award should be reduced to account for Smith’s lack of success on the
whistleblowing claim itself. The State asserts Smith spent a significant amount of
time pursuing claims and parties that were either voluntarily dismissed or
dismissed by the court that were connected to the whistleblowing claim.
According to the State, approximately $29,705.00 was spent litigating whether
claims should be pursued against individuals, and these claims were later
voluntarily dismissed. In addition, $6655.50 was spent on a request for rehearing
before the supreme court that was denied,4 $10,700.00 was spent on filing
appellate briefs that were not compliant with the appellate rules, and $6783.00
was spent preparing attorney fee affidavits that were improperly redacted.
Finally, the State claims the attorney-fee award should have been reduced
because ultimately the damages awarded for the whistleblowing claim were
substantially less than the attorney fees requested, pointing to Smith’s limited
success on appeal as justification for reducing the appellate fees requested.5
Smith defends the district court’s attorney fee award asserting the work
performed on the whistleblowing claim, the intentional-infliction-of-emotional-
4
Smith claims this amount was voluntarily omitted from his request for attorney fees and
was not included in the attorney fee award.
5
Smith was initially awarded $784,027.40 for the whistleblowing claim, but that award
was reduced to $150,000.00 as a result of the supreme court’s decision. Smith, 851
N.W.2d at 38. The State asserts it is an abuse of discretion for the district court to award
$368,607.35 in attorney fees that resulted in a damage award of $150,000.00.
6
distress claim, and all other claims were interrelated, co-extensive, reasonable,
and appropriate when the action is viewed as a whole. Smith also notes much of
the work litigating this case was the result of the State taking extremely
aggressive postures, restricting access to relevant documentation, which
necessitated constant battles over discoverable information. Considering the
district court’s unique position, having observed the litigation in this case, Smith
asserts there was no abuse of discretion in awarding him the entire attorney-fee
claim. Smith also makes a request for attorney fees in defending this appeal.
“As a general rule, unless authorized by statute or contract, an award of
attorney fees is not allowed.” NevadaCare, Inc. v. Dep’t of Human Servs., 783
N.W.2d 459, 469 (Iowa 2010). In this case, the whistleblowing statute alone
provides the support for the award of attorney fees to the prevailing party. See
Iowa Code § 70A.28(5)(a). We review the amount of attorney fees awarded by
the district court for abuse of discretion. Boyle v. Alum-Line, Inc., 773 N.W.2d
829, 832 (Iowa 2009). We will reverse the decision “only when the court rests its
discretionary ruling on grounds that are clearly unreasonable or untenable.” Id.
(citation omitted). “We recognize there is no precise methodology the district
court must employ to calculate an appropriate award of attorney fees. However,
whatever methodology the court employs, it must provide in its order ‘a concise
but clear explanation of its reasons for the award.’” Lee v. State, ___ N.W.2d
___, ___, 2016 WL 555686, at *16 (Iowa 2016) (citation omitted).
Appropriate factors to consider in allowing attorney fees include the
time necessarily spent, the nature and extent of the service, the
amount involved, the difficulty of handling and importance of the
issues, the responsibility assumed and results obtained, the
standing and experience of the attorney in the profession, and the
7
customary charges for similar service. The district court must look
at the whole picture and, using independent judgment with the
benefit of hindsight, decide on a total fee appropriate for handling
the complete case.
Lynch v. City of Des Moines, 464 N.W.2d 236, 238 (Iowa 1990) (quoting Landals
v. George A. Rolfes Co., 454 N.W.2d 891, 897 (Iowa 1990)).
While a plaintiff may not recover attorney fees for pursuing claims that
were ultimately unsuccessful, attorney fees may be awarded for such work if the
unsuccessful claim involved “a common core of facts” or was “based on related
legal theories” to the successful claim. Lee, 2016 WL 555686, at *15 (quoting
Hensley v. Eckerhart, 461 U.S. 424, 435 (1983)). Where the claims involve
interrelated facts and legal theories, “[m]uch of counsel’s time will be devoted
generally to the litigation as a whole, making it difficult to divide the hours
expended on a claim-by-claim basis.” Hensley, 461 U.S. at 435. In such a case,
the court “should focus on the significance of the overall relief obtained by the
plaintiff in relation to the hours reasonably expended on the litigation.” Id. Two
questions should be addressed: “First, did the plaintiff fail to prevail on claims
that were unrelated to the claims on which he succeeded? Second, did the
plaintiff achieve a level of success that makes the hours reasonably expended a
satisfactory basis for making a fee award?” Id. at 434.
Here, the district court focused on the “common body of facts” that
connected the whistleblowing claim with the intentional-infliction-of-emotional-
distress claim in order to justify awarding the entire attorney fee claim. See id. at
435. However, the court failed to take into consideration that a large part of
Smith’s whistleblowing claim—the only claim that permitted the recovery of
8
attorney fees—was set aside by the supreme court in light of the lack of proof on
the issue of causation. See Smith, 851 N.W.2d at 38 (“[W]e cannot find that
Smith’s loss of his job in 2010 was causally linked to his discussion with
President Geoffroy’s executive assistant in 2007 regarding Reinig’s billing
practices. For this reason, we set aside the district court’s award of damages
under section 70A.28(2) relating to this event.”). As a result of the supreme
court’s decision, the damage award for the whistleblowing claim was reduced
from $784,027.40 to $150,000.00, and Smith was able to recover the
$150,000.00 award on the whistleblowing claim only because the State failed to
preserve error on the causation argument against the reputation damages. Id.
In addition, the main portion of Smith’s recovery—$500,000.00 of the total
$650,000.00 awarded—was based on the emotional distress claim, which is a
tort claim that does not permit the recovery of attorney fees. See Bethards v.
Shivvers, Inc., 355 N.W.2d 39, 48 (Iowa 1984) (concluding the trial court was
without authority to award attorney fees in a case involving a claim for trespass
and intentional infliction of emotional distress). A court must take into
consideration a plaintiff’s successes and failures when making an award of
attorney fees, and the award must be reduced by the amount that will ensure the
award does not include fees and costs for claims that were ultimately
unsuccessful or for claims that do not permit the recovery of attorney fees. See
Lee, 2016 WL 555686, at *16 (noting the fee award must be reduced by an
amount to ensure attorney fees and costs are not awarded for a claim under
which the plaintiff was not entitled relief).
9
Because the district court’s decision did not consider these issues, failing
to reduce the award accordingly, we determine the district court abused its
discretion and the decision must be reversed and remanded. On remand, the
court should direct Smith’s counsel to submit an attorney fee affidavit that better
details the amount of time spent on each task, rather than using block billing that
specifies only daily activities but does not indicate how much time was spent on
each task. See Hensley, 461 U.S. at 433 (“The party seeking an award of fees
should submit evidence supporting the hours worked and rates claimed. Where
the documentation of hours is inadequate, the district court may reduce the
award accordingly.”); see also Dorr v. Weber, 741 F. Supp. 2d 1022, 1036 (N.D.
Iowa 2010) (reducing the fee award by ten percent for block billing by the
attorney).
Smith’s request for appellate attorney fees is denied.
REVERSED AND REMANDED.
Bower, J., concurs; Doyle, J., dissents.
10
DOYLE, Judge (dissenting)
I respectfully dissent. Finding that the district court failed to take into
consideration that a large part of Smith’s whistle-blowing damage claim was set
aside, and that the main portion of Smith’s remaining recovery was based on the
intentional-infliction-of-emotional-distress claim—a claim that does not permit the
recovery of attorney fees, the majority concludes the district court abused its
discretion in failing to reduce the attorney fee award accordingly. I would affirm
the district court’s award of attorney fees.
Smith was successful on his whistleblower claim, albeit the supreme court
reduced the damage award by the amount of damages related to Smith’s job
loss. The majority holds Smith’s attorney fee award should be likewise reduced;
that the amount of fees should be reduced by the amount incurred in pursuing
the loss of employment damages. Even if it was possible to calculate such an
amount, I disagree. First, fees may be allowed for time spent on unsuccessful
claims involving a common body of facts related to a successful claim. See
Lynch v. City of Des Moines, 464 N.W.2d 236, 239 (Iowa 1990). As the district
court recognized, “all of [Smith’s] claims, successful and unsuccessful, involved a
common body of facts.” Second, section 70A.28 does not require proportioning
the fees on the basis of the size of the award. The statute provides that a
violator “is liable to an aggrieved employee for affirmative relief . . . including
attorney fees and costs.” Iowa Code § 70A.28(5)(a). Third, to adopt the
majority’s position would undercut the public interest advanced by the
whistleblower statute. The public policy of this state entitles a successful
whistleblower litigant with the right to recover attorney fees. In civil rights
11
litigation, “The reason a successful civil rights litigant is entitled to attorney fees
‘is to ensure that private citizens can afford to pursue the legal actions necessary
to advance the public interest vindicated by the policies of civil rights acts.’”
Lynch, 464 N.W.2d at 239 (quoting Ayala v. Ctr. Line, Inc., 415 N.W.2d 603, 605
(Iowa 1987)). Indeed, it would be ironic “if a victim of discrimination is provided
rights under chapter [216] but could not enforce them because the victim‘s
attorney could not be adequately compensated.” Id. I believe the same rationale
applies here. In my opinion, tying an attorney fee award to the amount of
recovery could result in inadequate fees in many cases and would effectively
slam the courthouse door shut to many employees with whistleblower claims.
Citing to Lee v. State, ___ N.W.2d ___, ___, 2016 WL 555686, at *16
(Iowa 2016), the majority holds that “the award must be reduced by the amount
that will ensure the award does not include fees or costs . . . for claims that do
not permit the recovery of attorney fees,” noting the tort of intentional infliction of
emotional distress does not permit the recovery of attorney fees. I respectfully
suggest the majority has applied the Lee holding much too broadly.
Lee successfully obtained a judgment against her employer in a Family
Medical Leave Act (FMLA) case and was awarded attorney fees and costs. Lee,
___ N.W.2d at ___, 2016 WL 555686, at *1. The district court awarded Lee
attorney fees she incurred in seeking both retroactive and prospective relief. 6 Id.
at ___, at *14. Because state sovereign immunity barred the district court from
awarding Lee attorney fees and costs she incurred in seeking retroactive
6
The documentation Lee submitted to the district court revealed a portion of the attorney
fees the court awarded was specific to her claims for retroactive monetary relief. Lee,
___ N.W.2d at ___, 2016 WL 555686, at *14.
12
monetary relief, the supreme court reversed the district court order awarding
attorney fees and costs and remanded for the district court to award Lee
reasonable attorney fees and costs she incurred in seeking prospective relief. Id.
at ___, at *15. In this regard, the court stated:
In determining an appropriate fee award in this case, the
district court should consider the general principles governing
attorney fee awards in actions in which plaintiffs are only partially
successful. Thus, to the extent Lee’s unsuccessful claims for
retroactive relief were unrelated to her successful claims for
prospective relief, the court may not award fees or costs she
obviously incurred in pursuing only the unsuccessful claims. But to
the extent counsel devoted time “generally to the litigation as a
whole, making it difficult to divide the hours expended on a claim-
by-claim basis,” the court may “focus on the significance of the
overall relief obtained by the plaintiff in relation to the hours
reasonably expended on the litigation.” The court may properly
award any fees incurred in the litigation involving “a common core
of facts” or “based on related legal theories.” Nevertheless, the
court ultimately must consider the reasonableness of the hours
expended on the litigation as a whole in light of the degree of
success actually obtained.
Id. (internal citations omitted). The court recognized there is no precise method
to determine a reasonable attorney fee award and left that to the discretion of the
district court. Id. at ___, at *16. The court directed the district court to
reduce its initial award by the amount it determines is necessary to
ensure it does not include fees and costs Lee incurred in proving
aspects of her claims for retroactive relief that were wholly
unrelated to the common core of facts or legal theories establishing
her entitlement to prospective relief.
Id.
The majority’s reading of Lee is overbroad. Lee only held that to the
extent Lee’s unsuccessful claims for retroactive relief were unrelated to her
successful claims for prospective relief, the court could not award fees or costs
she obviously incurred in pursuing only the unsuccessful claims. Id. at ___, at
13
*16. The distinction here is that Smith’s intentional-infliction-of emotional-distress
claim is related to his successful whistleblower claim as both claims are
anchored to a “common core of facts.” As the district court so aptly stated, “the
work the plaintiff’s attorneys exerted in furtherance of each of those claims was
inseparable.” So, it matters not that the emotional-distress claim does not permit
recovery of attorney fees.
Moreover, the main portion of Smith’s damages could just as well have
been included within Smith’s recovery for the whistleblower violation. In its post-
trial findings of fact and conclusions of law concerning Smith’s emotional-distress
damages, the district court concluded,
that Smith is entitled to an award of monetary damages by way of
restitution and compensation for emotional distress he has suffered
as a result of ISU’s retaliatory actions in violation of Iowa Code
section 70A.28 [(2007)]. The jury found that ISU was liable to
Smith for damages for intentional infliction of severe emotional
distress in the amount of $500,000. That award presumably
incorporates damages from conduct that constituted a violation of
the whistleblower statute as well as conduct that did not violate the
statute. In order to avoid duplication of damage awards, the court
has separately considered the extent of Smith’s severe emotional
distress that would have resulted from ISU’s retaliatory conduct.
Thus the total judgment for emotional distress damages, including
both the jury award and the court’s order in equity, is $500,000.
As the supreme court noted, “The [district] court found that Smith had incurred
the same $500,000 in emotional distress damages for the Iowa Code section
70A.28 violation, but declined to make a duplicate award.” Smith v. Iowa State
Univ. of Sci.& Tech., 851 N.W.2d 1, 33, n.18 (Iowa 2014). As a result, the main
portion of Smith’s recovery is based on the intentional-infliction-of-emotional-
distress claim. Obviously Smith suffered some emotional-distress damages
resulting from the whistleblower violation. It would be unfair to reduce his
14
attorney fee award merely because all of his emotional-distress damages were
fortuitously allocated to the intentional-infliction-of-emotional-distress claim.
For all the above reasons, I would affirm the district court’s award of
attorney fees and costs.