Case: 20-30521 Document: 00515805715 Page: 1 Date Filed: 04/01/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
April 1, 2021
No. 20-30521 Lyle W. Cayce
Clerk
Derrick Rodney; Jerome Batiste; Courtney Watson,
Plaintiffs—Appellants,
versus
Elliott Security Solutions, L.L.C.; Ian Kennard; Darrin
Elliott, Sr.; Dayone Elliott,
Defendants—Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:19-CV-11890
Before King, Smith, and Haynes, Circuit Judges.
Per Curiam:*
Plaintiffs-appellants challenge the district court’s reduction to their
requested amount of attorney’s fees. Because the district court did not abuse
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 20-30521
its discretion in determining the amount of attorney’s fees to award, we
AFFIRM.1
I.
Plaintiffs-appellants Derrick Rodney, Jerome Batiste, and Courtney
Watson (collectively, “Plaintiffs”) brought an action under the Fair Labor
Standards Act (the “FLSA”) and Louisiana Wage Payment Act against
defendants-appellees Elliot Security Solutions, L.L.C., Ian Kennard, Darrin
Elliott, Sr., and Dayone Elliott (collectively, “Defendants”) for improper
wage deductions and a failure to pay overtime. Plaintiffs’ claims were
resolved before any depositions had occurred, once they accepted a Rule 68
Offer of Judgment for $17,750.00, exclusive of attorney’s fees, from
Defendants (the “Offer”). As part of the Offer, Defendants also agreed to
pay reasonable attorney’s fees.
Plaintiffs then sought $41,335.00 in attorney’s fees for 118.1 hours of
work at rate of $350.00 per hour, which Defendants opposed. In a careful
report and recommendation, the magistrate judge determined that the proper
lodestar for the fee award was based on 82.435 hours of work, 64.335 hours
of which should be billed at the reasonable rate of $325.00 per hour and 18.1
hours, of which should be billed at the rate of $275.00 per hour because the
work was more routine and typically handled by more junior attorneys. Based
on these rates and hours, the magistrate judge determined that the lodestar
was $25,886.38. The magistrate judge then determined that the lodestar
should be adjusted downward in light of the Johnson factors2 by fifteen
1
Judge Haynes concurs in the judgment only.
2
The twelve factors from Johnson v. Georgia Highway are as follows: 1) “the time
and labor required”; 2) “the novelty and difficulty of the questions”; 3) “the skill requisite
to perform the legal service properly”; 4) “the preclusion of other employment by the
attorney due to acceptance of the case”; 5) “the customary fee”; 6) “whether the fee is
2
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percent for a total award of $22,003.42. After adopting the magistrate judge’s
report and recommendation, the district court awarded $22,003.42 in
attorney’s fees. Plaintiffs timely appealed.
II.
We review an award of attorney’s fees and a district court’s
application of the Johnson factors for abuse of discretion, though we review
the initial determination of reasonable hours and rates for clear error. Saizan
v. Delta Concrete Prods. Co., 448 F.3d 795, 800 (5th Cir. 2006). A district
court has wide discretion in setting fees “in view of its superior
understanding of the litigation.” Gurule v. Land Guardian, Inc., 912 F.3d 252,
261 (5th Cir. 2018) (cleaned up). And a district court only abuses its
discretion if it: “(1) relies on clearly erroneous factual findings; (2) relies on
erroneous conclusions of law; or (3) misapplies the law to the facts.” Allen v.
C & H Distribs., L.L.C., 813 F.3d 566, 572 (5th Cir. 2015) (quoting McClure
v. Ashcroft, 335 F.3d 404, 408 (5th Cir. 2003)).
III.
In determining the appropriate amount of attorney’s fees, a district
court first must calculate the “lodestar” by “multiplying the reasonable
fixed or contingent”; 7) “time limitations imposed by the client or the circumstances”; 8)
“the amount involved and the results obtained”; 9) “the experience, reputation, and ability
of the attorneys”; 10) “the ‘undesirability’ of the case”; 11) “the nature and length of the
professional relationship with the client”; and 12) “awards in similar cases.” Cruz v.
Maverick Cnty., 957 F.3d 563, 574 n.3 (5th Cir. 2020) (quoting Johnson v. Ga. Highway
Express, Inc., 488 F.2d 714, 717–19 (5th Cir. 1974)) (cleaned up). And we have clarified that
we may consider these factors after first calculating the lodestar, which “has long been our
practice.” Combs v. City of Huntington, 829 F.3d 388, 393 (5th Cir. 2016) (explaining that
although the Supreme Court “cautions against the sole use of the Johnson factors to
calculate a reasonable attorney’s fee,” the Court does not “make it impermissible
to . . . consider any relevant Johnson factors [after first calculating the lodestar]”) (citing
Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 554 (2010)).
3
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number of hours expended on the case by the reasonable hourly rates for the
participating lawyers.” Migis v. Pearle Vision, Inc., 135 F.3d 1041, 1047 (5th
Cir. 1998) (citing La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 324 (5th
Cir. 1995)). After determining the lodestar, the district court may then
examine the Johnson factors to decide if appropriate adjustments to the
lodestar are necessary. Id.; see Combs, 829 F.3d at 393. In other words, the
Johnson factors are guides for adjusting a lodestar not calculating a lodestar in
the first instance. We emphasize that we generally require a district court to
“explain with a reasonable degree of specificity the findings and reasons upon
which the award is based,” which includes an indication of how the Johnson
factors were applied. Shipes v. Trinity Indus., 987 F.2d 311, 320 (5th Cir. 1993)
(emphasis added); see Torres v. SGE Mgmt., L.L.C., 945 F.3d 347, 354 (5th
Cir. 2019) (holding that a district court need not provide a lengthy analysis of
each factor, though entirely disclaiming use of the factors would be an abuse
of discretion). And as we discuss below, in her thorough, thirty-three-page
report and recommendation, the magistrate judge did exactly that.
Here, Plaintiffs challenge both the initial lodestar amount and the
additional fifteen-percent reduction pursuant to the Johnson factors. Both
challenges fail. We discuss each in turn.
As to the initial lodestar amount, the magistrate judge was careful to
explain her reasoning for reducing the rate from $350.00 per hour to $325.00
for more complex work and $275.00 for associate-level work and to discuss
each of the billing entries for which Plaintiffs’ counsel sought fees and
whether the hours for those entries would be included, excluded, or reduced.
Plaintiffs have not pointed to any clear error—nor can we find any—in
determining the reasonable rates based on a survey of similar cases and the
rates imposed there as well as a review of the evidence submitted, including
a declaration from Plaintiffs’ counsel and other attorneys who represent
plaintiffs in FLSA suits. See, e.g., Leroy v. City of Hous., 906 F.2d 1068, 1079
4
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(5th Cir. 1990) (noting that as to “more routine” tasks, “hourly rates near
the top of the scale will nevertheless generally be inappropriate if in the
particular context the task could have been properly accomplished with
greater overall cost efficiency by competent personnel whose lesser
experience and skill would not justify such high rates”).
Similarly, Plaintiffs have not pointed to any clear error—and, again,
nor can we find any—in determining that the reasonable hours should be
reduced from 118.1 hours to 82.435 hours by analyzing whether each entry
demonstrated billing judgment, was block-billed or vague, was for
administrative work instead of legal work, was more properly characterized
as routine or associate-level work, and was productive and successful. See,
e.g., Saizan, 448 F.3d at 799–800 (affirming an award where, after
“[r]eviewing the time records, the District Court faulted Plaintiffs for
vagueness, duplicative work, and not indicating time written off as excessive
or unproductive”). In other words, the magistrate judge “explain[ed] with a
reasonable degree of specificity the findings and reasons upon which the
award [was] based.” Shipes, 987 F.2d at 320. To that end, the district court
“had ample reason to reduce the fee award,” and “[t]he extent of the
reduction does not rise to the level of an abuse of discretion.” Saizan, 448
F.3d at 803. At bottom, the district court acted well within its purview in
calculating the lodestar.
As to the fifteen-percent reduction of the lodestar under the Johnson
factors, the magistrate judge was careful to avoid so-called “double
counting” to the extent that a factor was already accounted for in the initial
lodestar determination. Id. at 800. Among the factors that were not already
subsumed by the lodestar calculation, the magistrate judge emphasized that
5
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the success achieved is the most important factor3 and then also considered
the novelty of the issues and preclusion of other employment.
On appeal, Plaintiffs emphasize our caselaw where we have observed
that an “enhancement” based on specific Johnson factors—complexity of the
issues and results obtained—“is only appropriate ‘in rare and exceptional
circumstances’ and must be supported by both specific evidence in the
record and detailed findings by the lower court.” See Heidtman v. Cnty. of El
Paso, 171 F.3d 1038, 1043 (5th Cir. 1999) (quoting Shipes, 987 F.2d at 319–22
& n.9) (emphasis added); Shipes, 987 F.2d 320. But Plaintiffs’ reliance here
is misguided.
First, this case does not involve an enhancement under the Johnson
factors. It involves a reduction—i.e., a downward adjustment. And in the
cases Plaintiffs rely on, we expressly emphasized that it is in the context of an
enhancement or upward adjustment of the lodestar where we have required
specific record evidence and detailed findings by lower courts.4 See
Heidtman, 171 F.3d at 1043; Shipes, 987 F.2d at 320; see also Cruz, 957 F.3d at
575 (noting in the downward adjustment context that our caselaw “instructs
that in reviewing adjustments to the lodestar, we need only consider whether
3
And it is certainly true that among the Johnson factors, we have suggested that
“the most critical factor in determining an attorney’s fee award is the degree of success
obtained.” Black v. SettlePou, P.C., 732 F.3d 492, 503 (5th Cir. 2013) (quoting Saizan, 448
F.3d at 799); see also Gurule, 912 F.3d at 261; Migis, 135 F.3d at 1047 (noting that the
Supreme Court has also suggested that this factor was the “most critical factor” (quoting
Farrar v. Hobby, 506 U.S. 103, 114 (1992))).
4
And this distinction between enhancements and reductions makes sense because
“the burden of proving that an enhancement is necessary must be borne by the fee
applicant.” Perdue, 559 U.S. at 553 (emphasis added). This is so because an enhancement
would add to the award of attorney’s fees, and it is the fee applicant who bears the burden
of establishing entitlement to an award. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).
Further, “it is enhancements that must be rare because, instead of merely guaranteeing
adequate representation, they can result in a windfall to attorneys.” Combs, 829 F.3d at 393.
6
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the district court properly considered the appropriate criteria” and affirming
a decision not to so reduce the lodestar) (cleaned up); Combs, 829 F.3d at
393–94 (discussing the distinction between enhancements and reductions to
the lodestar). This, however, is a different case; we are not confronted with
such an enhancement.
Second, in the absence of an enhancement, the district court
appropriately considered the results that Plaintiffs obtained, the novelty of
the issues, and the preclusion of other employment. See Gurule, 912 F.3d at
258–61; see also Cruz, 957 F.3d at 575. In light of these Johnson factors, which
were not already subsumed in the lodestar calculation, the lodestar was
reduced by fifteen percent.5
In explaining her reasoning regarding the novelty of the issues and the
preclusion of other employment, the magistrate judge specifically observed
that “[t]here were no unusual questions nor is there any evidence that
[Plaintiffs’ counsel] was precluded from other employment due to his
acceptance of the case.” And she further noted that there were only three
Plaintiffs in this case, and the case required a standard review of payroll
records. The magistrate judge also considered the result obtained, noting that
the Plaintiffs’ sum recovery was $17,750.00, which was allocated among the
Plaintiffs as $9,100.00 to one, $4,600.00 to another, and $2,850.00 to the
5
The magistrate judge was careful to base the reduction on only those Johnson
factors that were not already subsumed in the lodestar. It is true that we have previously
noted that factors such as preclusion of other employment will ordinarily—but not
always—be subsumed within the lodestar amount where, for example, the lodestar includes
high hours that were reasonably billed. See Shipes, 987 F.2d at 321–22. Under those
circumstances, preclusion of other employment cannot be the reason for enhancing a fee
award. See id. But the circumstances are different where the lodestar is reduced rather than
enhanced. This is so because although allowing a high number of billed hours to be part of
the lodestar may reflect preclusion of other employment (there are only so many hours in
a day), the inverse is not necessarily true.
7
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third. Moreover, the magistrate judge was careful to distinguish this case,
which did not take years to litigate or did not even progress much past initial
discovery, with those cases where litigation was more protracted and higher
fees were awarded. Accordingly, the magistrate judge explained both the
findings and reasoning upon which the downward adjustment was based.
The district court, in adopting the magistrate judge’s report and
recommendation, thus appropriately considered these factors in its fifteen-
percent downward adjustment of the lodestar. Cf. Gurule, 912 F.3d at 261
(affirming a sixty percent downward adjustment of the lodestar where the
district court, in considering the prevailing party’s degree of success,
factored into its calculus the prevailing party’s rejection of better settlement
offers); Migis, 135 F.3d at 1048 (finding an abuse of discretion and reversing
an award of attorney’s fees where the district court failed “to give adequate
consideration to the result obtained relative to the fee award, and the result
obtained relative to the result sought”). Given the foregoing, the fifteen-
percent downward adjustment was not an abuse of discretion.
IV.
For the foregoing reasons, we AFFIRM the award of attorney’s fees.
8
Rodney v. Elliott Security Solutions
Combined Opinion