Saizan v. Delta Concrete Products Co.

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 5, 2006

Charles R. Fulbruge III
Clerk
No. 05-30375

STEPHEN SAIZAN, RUSSELL HOOGE, and RODOLFO GARCIA,

Plaintiffs-Appellants,

versus

DELTA CONCRETE PRODUCTS COMPANY, INC.;
ABC INSURANCE COMPANY,

Defendants-Appellees.

____________________

Appeal from the United States District Court
for the Middle District of Louisiana
____________________

Before HIGGINBOTHAM, DeMOSS, and OWEN, Circuit Judges.

PER CURIAM:

I

Plaintiffs appeal the District Court’s reduction in the

requested amount of attorney’s fees, awarded pursuant to the

settlement of an alleged Fair Labor Standards Act violation.

Stephen Saizan, Russell Hooge, and Rodolfo Garcia, plaintiffs-

appellants, asserted that the Fair Labor Standards Act (FLSA)1

covered the jobs they performed as batch men and that Delta

Concrete Products Co. Inc., defendant-appellee, denied them

compensation for overtime under the FLSA. The parties disputed the

correct method of calculating the overtime compensation that

1
29 U.S.C. §§ 201-19.
Plaintiffs alleged they were owed. Delta Concrete urged the use of

the fluctuating workweek method, resulting in a total value of

$15,619, while Plaintiffs urged the court to adopt a method that

would have resulted in a recovery of $156,000. Prior to trial in

August 2002, the court ruled that if Plaintiffs established

liability, the court would use the fluctuating workweek formula to

compute the overtime wages due.2

Mediation and other settlement efforts were unsuccessful and

the case proceeded to trial. The jury’s partial verdict did not

resolve the question of Delta Concrete’s liability under FLSA.

However, based on the evidence presented at trial, the court issued

an opinion, finding in favor of Delta Concrete on the issue of

liquidated damages.3 Prior to the commencement of the second

trial, the parties notified the court that they had agreed to

settle Plaintiffs’ principal demands for $20,000, including costs,

and reserved the determination of appropriate attorney’s fees.4

The District Court issued an order on January 25, 2005, which

incorporated the documents and terms of the parties’ settlement

into the record, and referred the matter back to the magistrate

2
Saizan v. Delta Concrete Products Co., 209 F. Supp. 2d 639 (M.D. La.
2002).
3
Thereafter, both sides submitted a joint motion for certification of a
partial judgment under FED.R.CIV.P. 54(b), and judgment was entered on February
27, 2003. This Court dismissed the appeal from that partial judgment for lack
of jurisdiction. Saizan v. Delta Concrete Products Co., 83 Fed. Appx. 644 (5th
Cir. 2003) (per curiam).
4
The net award, after deducting costs, amounted to $12,906.19, divided
equally amongst the three plaintiffs.

2
judge for a determination of an appropriate fee award.

Pursuant to 29 U.S.C. § 216(b), plaintiffs filed a motion to

recover all fees generated as a result of the litigation before the

district and appellate courts. In addition, Plaintiffs sought a

multiplier of one and one-half based on four Johnson5 factors.6

Delta Concrete opposed the motion essentially arguing that

Plaintiffs were only entitled to a nominal award of attorney’s fees

based on the results they obtained in the settlement and in the

course of the litigation.

Concurring with the magistrate judge, the District Court

denied plaintiffs’ request for an award of costs, reduced the

lodestar amount by approximately $100,000, and granted plaintiffs’

motion for attorney’s fees, in the amount of $13,000. Plaintiffs

now appeal the amount of attorney’s fees awarded, praying for

$114,057 plus judicial interest from the date of the District

Court’s order. We affirm.

II

Under the Fair Labor Standards Act, the District Court may

award reasonable attorney’s fees to the prevailing party.7

5
Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.
1974).
6
Plaintiffs asserted that novelty and difficulty of the issues, the skill
required, preclusion of other employment, and undesirability of the case
warranted a multiplier. See infra III C.
7
A court “shall, in addition to any judgment awarded to the plaintiff or
plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant....”
See 29 U.S.C. § 216(b); see also Hensley v. Eckerhart, 461 U.S. 424, 433-34

3
Multiplying the number of hours reasonably spent on the case by an

appropriate hourly rate in the community for such work,8 we use the

lodestar method to calculate an appropriate attorney’s fee award

under the FLSA.9 “The most critical factor in determining an

attorney’s fee award is the ‘degree of success obtained.’”10

Prevailing party status “may say little about whether the

expenditure of counsel’s time was reasonable in relation to the

success achieved.”11 “While a low damages award is one factor which

the court may consider in setting the amount of fees, this factor

alone should not lead the court to reduce a fee award.”12 In a

lawsuit initiated under the FLSA, “an attorney’s failure to obtain

every dollar sought on behalf of his client does not automatically

mean that the modified lodestar amount should be reduced.”13

In addition, plaintiffs seeking attorney’s fees are charged

(1983) (stating that reasonableness is the bedrock upon which the determination
of the amount of attorney’s fees rests). Though the attorney’s fee provision of
the FLSA does not mention “prevailing party,” we typically cite prevailing party
fee-shifting jurisprudence in FLSA cases. See, e.g., Tyler v. Union Oil Co. of
Calif., 304 F.3d 379, 404 (5th Cir. 2002).
8
Id. (citing Shipes v. Trinity Industries, 987 F.2d 311, 319-20 (5th Cir.
1993)). The District Court found Plaintiffs’ rates to be reasonable.
9
Heidtman v. County of El Paso, 171 F.3d 1038, 1043 (5th Cir. 1999).
10
Singer v. City of Waco, Tex., 324 F.3d 813, 829 (5th Cir. 2003)
(quoting Hensley, 461 U.S. at 436).

11
Hensley, 461 U.S. at 436.

12
Singer, 324 F.3d at 830 (quoting Hollowell v. Orleans Reg’l Hosp. LLC,
217 F.3d 379, 392 (5th Cir. 2000)).
13
Id. (quoting Spegon v. Catholic Bishop of Chicago, 175 F.3d 544, 558
(7th Cir. 1999)).

4
with the burden of showing the reasonableness of the hours billed

and, therefore, are also charged with proving that they exercised

billing judgment.14 Billing judgment requires documentation of the

hours charged and of the hours written off as unproductive,

excessive, or redundant.15 The proper remedy for omitting evidence

of billing judgment does not include a denial of fees but, rather,

a reduction of the award by a percentage intended to substitute for

the exercise of billing judgment.16

There exists a strong presumption of the reasonableness of the

lodestar amount.17 After calculating the lodestar, the court may

decrease or enhance the amount based on the relative weights of the

twelve factors set forth in Johnson.18 “[O]f the Johnson factors,

the court should give special heed to the time and labor involved,

the customary fee, the amount involved and the result obtained, and

14
Walker v. City of Mesquite, 313 F.3d 246, 251 (5th Cir. 2002).
15
Id.; Green v. Adm’rs of Tulane Educ. Fund, 284 F.3d 642, 662 (5th Cir.
2002).

16
Walker, 313 F.3d at 251 (citing Walker v. HUD, 99 F.3d 761, 770 (5th
Cir. 1996)).
17
Heidtman, 171 F.3d at 1043.
18
The Johnson factors are: (1) the time and labor required to represent
the client or clients; (2) the novelty and difficulty of the issues in the case;
(3) the skill required to perform the legal services properly; (4) the preclusion
of other employment by the attorney; (5) the customary fee charged for those
services in the relevant community; (6) whether the fee is fixed or contingent;
(7) the time limitations imposed by the client or circumstances; (8) the amount
involved and the results obtained; (9) the experience, reputation, and 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.

5
the experience, reputation and ability of counsel.”19 The lodestar

may not be adjusted due to a Johnson factor, however, if the

creation of the lodestar amount already took that factor into

account; to do so would be impermissible double counting.20

“We review the District Court's award of attorney's fees for

abuse of discretion and its factual findings for clear error,”21

assessing the initial determination of reasonable hours and rates

for clear error and its application of the Johnson factors for

abuse of discretion.22

III

“The District Court's lodestar analysis is inspected primarily

to ensure that ‘the court sufficiently considered the appropriate

criteria.’”23 The District Court reduced the attorney fee award

“due to the plaintiffs’ failure to prevail on the key issue

supporting the claim for monetary relief—method of calculation of

overtime and the entitlement to liquidated damages.” Failure to

demonstrate billing judgment resulted in further reduction of the

19
Migis v. Pearle Vision, 135 F.3d 1041, 1047 (5th Cir. 1998) (citing Von
Clark v. Butler, 916 F.2d 255, 258 (5th Cir. 1990)).

20
Id.

21
Singer, 324 F.3d at 829.

22
Migis, 135 F.3d at 1047 (citing Louisiana Power & Light Co. v.
Kellstrom, 50 F.3d 319, 324 (5th Cir. 1995)).
23
Singer, 324 F.3d at 830 (quoting Louisiana Power & Light Co., 50 F.3d
at 329).

6
lodestar, and the Johnson factors did not warrant an increase.

A. Billing Judgment

Plaintiffs contend that they provided the District Court with

detailed itemized records of the hours expended by the firm in

preparing the present case. Reviewing the time records, the

District Court faulted Plaintiffs for vagueness, duplicative work,

and not indicating time written off as excessive or unproductive.24

Plaintiffs unconvincingly argue that the lodestar amount should not

be reduced for neglecting to list unbilled time. The District

Court neither committed clear error by finding a failure to provide

evidence of billing judgment nor abused its discretion by imposing

a ten percent reduction in the lodestar.25

B. Success on the merits

Plaintiffs argue that their success warrants the requested fee

award because they received vindication—a concession by their

employer, a monetary judgment, and a judgment confirming their

prevailing-party status under the FLSA. Vindication, however, is

not as weighty of a factor as monetary success.26 Accordingly,

Delta Concrete counters, arguing that prevailing-party status—which

24
For example, Plaintiffs’ counsel billed approximately 35 hours for
preparation of the motion for attorney’s fees, costing $6,300.
25
The District Court reduced the lodestar amount to $102,651.30.

26
See Migis, 135 F.3d at 1048.

7
it conceded as to Garcia and Hooge27—is not the equivalent of

success on the merits of the case. The District Court agreed.

Plaintiffs argue that the central issue of the case concerned

coverage under the FLSA. Since Delta Concrete argued that

Plaintiffs were managerial/executive employees subject to the “solo

charge” exemption,28 Plaintiffs assert that Delta Concrete failed

to carry its burden of demonstrating that Plaintiffs were exempt

from coverage.29 As a result, Plaintiffs contend that the method

of calculating lost wages was peripheral and irrelevant to the key

issue that determined the outcome of the case; Delta Concrete’s

failure to establish that the exemption applied induced the

settlement agreement. Additionally, Plaintiffs contend that since

the rulings regarding the calculation of damages and liquidated

damages were interlocutory and not final, any conclusion as to

failure or success was premature. Plaintiffs aver that such a

premature assessment of the case for reducing an award of

attorney’s fees would chill settlements, which is anathema to

public policy. We are not persuaded.

Where “a plaintiff has achieved only partial or limited

27
The Settlement Agreement reserved the determination whether Saizan was
a prevailing party to the District Court, which found that Delta Concrete had
“not supplied any factual or legal basis for the court to conclude that he [was]
not a prevailing party entitled to fees under the FLSA.”
28
Paul v. Petroleum Equipment Tools Co., 708 F.2d 168, 170 (5th Cir.
1983).

29
See Vela v. City of Houston, 276 F.3d 659, 666 (5th Cir. 2001) (holding
that the employer bears the burden of proving that it qualifies for an exemption
under FLSA).

8
success, the product of hours reasonably expended on the litigation

as a whole times a reasonable hourly rate may be an excessive

amount. This will be true even where the plaintiff's claims were

interrelated, nonfrivolous, and raised in good faith.”30 The

settlement agreement does not contain an admission of liability.

Also, Plaintiffs failed to convince the court that they deserved

overtime compensation, that the fluctuating worksheet method of

calculating the amount of overtime compensation did not apply, that

Delta Concrete willfully violated the wage hour law,31 or that Delta

Concrete owed liquidated damages.32 Consequently, the District

Court did not err in reducing the fee award.

Due to Plaintiffs’ lack of success on the merits, the District

Court reduced the award of attorney’s fees in proportion to the

difference between the initial prayer and the ultimate settlement

amount. Plaintiffs challenge this method, arguing that it creates

an illogical result. For example, if the initial assessment of

damages were reduced, the attorney fee award would be greater, with

no difference in the case. Plaintiffs argue that such a rule of

proportionality “would make it difficult, if not impossible, for

individuals with meritorious civil rights claims but relatively

30
Migis, 135 F.3d at 1048 (quoting Hensley, 461 U.S. at 436).
31
The willfulness of a particular violation determines the duration of
time for which compensation is recoverable. See Singer, 324 F.3d at 822.
32
Under the FLSA, an employer who violates the overtime provisions is
liable not only for unpaid overtime compensation but also for “an additional
equal amount as liquidated damages.” Id. at 823 (quoting 29 U.S.C. § 216(b)).

9
small potential damages to obtain redress from the courts.”33 As

such, “...Congress determined that it would be necessary to

compensate lawyers for all time reasonably expended.”34 Plaintiffs

finally argue that the purpose of the FLSA attorney fee provision

is “to ensure effective access to the judicial process by providing

attorney fees for prevailing plaintiffs with wage and hour

grievances.”35 Consequently, Plaintiffs urge that the amount of

attorney’s fees should not depend on the size of the damage award.

Plaintiffs go on to cite a litany of small recovery cases that

support large awards of attorney’s fees.36 Therefore, Plaintiffs

submit that the District Court’s calculation method constitutes an

abuse of discretion.

Both parties and the District Court cite Singer v. City of

Waco, Texas,37 Delta Concrete and the District Court making the same

argument made by the City.38 Plaintiffs argue that even though the

recovery amounted to only three and one-half percent of the damages

33
Rivera, 477 U.S. at 578 (addressing 42 U.S.C. § 1988).

34
Id.

35
Fugley v. Higgins, 19 F.3d 1126 (6th Cir. 1994).
36
See, e.g., Rivera v. Riverside, 673 F.2d 1580, 1581-83 (9th Cir. 1985)
(awarding $245,456.25 in fees for obtaining a $33,350.00 judgment); Copeland v.
Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980) (en banc) (awarding $160,000 in fees
for obtaining a $33,000 judgment).
37
324 F.3d 813 (plaintiffs seeking 5 million dollars in damages but
recovering $180,000).

38
Id. at 839 (summarizing the City’s argument as “essentially
contend[ing] that the District Court should have reduced the lodestar because the
fire fighters received a much lower damage award than they sought”).

10
sought in Singer, we found no abuse of discretion in the District

Court’s decision not to reduce the lodestar amount.39 However, the

District Court decided not to reduce the fee due to other Johnson

factors that weighed in favor of the result as calculated,

balancing out the discrepancy in recovery.40

We have reversed an award of attorney’s fees where the prayer

sought twenty-six times the damages actually awarded and the

resultant fee award was over six and one-half times the amount of

damages awarded.41 It remains true that there is no per se

proportionality rule.42 However, the District Court had ample

reason to reduce the fee award, not relying solely on the low

settlement amount but also on Plaintiffs’ failure to establish

billing judgment and inability to prove any element of the case.

39
Id. at 829-30.
40
Id. (finding three factors in favor of an upward adjustment: the
novelty and difficulty of the questions presented; the skill required to perform
the legal services properly; and the experience, reputation, and ability of the
fire fighters' attorney).
41
Migis, 135 F.3d at 1048 (quoting Hensley, 461 U.S. at 436). Plaintiffs
argue that, here, the 12.8% ratio between the settlement amount and the initial
prayer is not controlled by Migis.
42
“We recognize that, under civil rights statutes such as the ADEA,
‘there is no per se requirement of proportionality in an award of attorney
fees[.]’” Nevertheless, “‘[t]he amount of damages a plaintiff recovers is
certainly relevant to the amount of attorney's fees to be awarded[.]’” West v.
Nabors Drilling USA, Inc., 330 F.3d 379, 395 (5th Cir. 2003) (quoting Hernandez
v. Hill Country Tel. Co-op., 849 F.2d 139, 144 (5th Cir. 1988) (addressing 42
U.S.C. § 1988)). "The amount of damages a plaintiff recovers is only one of many
factors that a court must consider when calculating an award of attorneys' fees.
An attorneys' fee award does not need to be commensurate with the actual amount
of dollars awarded to the plaintiff." Green, 284 F.3d at 663 (Title VII case);
but see Hernandez, 849 F.2d at 144 (stating "proportionality is an appropriate
consideration in the typical case").

11
The extent of the reduction does not rise to the level of an abuse

of discretion. Ultimately, the District Court acted well within

its purview by reducing the lodestar amount.

C. Johnson Factors

Already having significantly reduced the lodestar amount, the

District Court did not revisit the Johnson factors individually,

apart from its rejection of Plaintiffs’ request for a multiplier

based on four Johnson factors: (1) the novelty and difficulty of

the issues in the case; (2) the skill required to perform the legal

services properly; (3) the preclusion of other employment by the

attorney; (4) the undesirability of the case.43 With respect to

each, Plaintiffs’ arguments are not persuasive. We are persuaded

that the District Court did not abuse its discretion in refusing to

depart from the adjusted lodestar amount.

AFFIRMED.

43
Johnson, 488 F.2d at 717-19.

12