Villano v. City of Boynton Beach

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 27, 2001
Nos. 99-4318 & 99-14277 THOMAS K. KAHN
CLERK
D.C. Docket No. 96-08559-CV-KLR

JASON VILLANO,

Plaintiff-Appellant,

versus

CITY OF BOYNTON BEACH, a municipality, J. SCOTT
MILLER, individually, as the former City Manager for
the City of Boynton Beach, et al.,

Defendants-Appellees.

No. 00-10012

D.C. Docket No. 96-08559-CV-KLR

JASON VILLANO,

Plaintiff-Appellee,

versus

J. SCOTT MILLER, individually and as the former
City Manager for the City of Boynton Beach, et al.,

Defendants,
CITY OF BOYNTON BEACH, a municipality,
 Defendant-Appellant.

Appeals from the United States District Court
for the Southern District of Florida

(June 27, 2001)

Before EDMONDSON, BLACK and McKAY*, Circuit Judges.

McKAY, Circuit Judge:

Appellant brought separate appeals challenging the reduction of his

attorney fee award and seeking sanctions against Appellees for misconduct

during trial. Those issues have been consolidated on appeal.

Appellant prevailed in his civil rights action against the City of

Boynton Beach and its police officer. The action arose from an encounter

Appellant had in 1994. Out of uniform and driving an unmarked car,

Officer Bateson had followed Appellant’s car in a way that caused

Appellant to believe he was in danger of being robbed. While stopped at

___________________

*Honorable Monroe G. McKay, U.S. Circuit Judge for the Tenth Circuit, sitting
by designation.

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an intersection, Appellant saw the unidentified pursuer approaching him

with a drawn gun. In a defensive act, he backed into the officer’s vehicle

and drove away to seek police protection. When stopped by a Fort

Lauderdale officer, Appellant relayed his belief that someone was trying to

rob him. Officer Bateson then arrived and identified himself as a police

officer from Boynton Beach. He claimed to have stopped Appellant after

observing him commit a burglary on a van and explained that Appellant had

slammed into his vehicle and fled the scene. Appellant was arrested and

charged with burglary of a vehicle and aggravated assault on a police

officer. The charges were eventually dropped. In a separate matter,

Officer Bateson was convicted of robbery.

After the charges were dropped, Appellant brought a civil rights

claim under 42 U.S.C. § 1983, alleging false arrest and malicious

prosecution. In addition to the individual officers, Appellant sued the City

of Boynton Beach on the theory that the City had a custom or policy of

failing to properly train or supervise its police officers. There were other

named defendants that were dismissed or severed from the case before the

final disposition. From the outset, the core of the litigation was the City’s

failure to train its officers and the officer’s unconstitutional conduct toward

3
Appellant.

After a seven-day trial, a jury determined that both the City of

Boynton Beach and Officer Bateson had violated Appellant’s Fourth and

Fourteenth Amendment rights. Several of Appellant’s original claims were

either severed or dismissed before the case was submitted to the jury, but

the jury found for Appellant on all claims submitted. The jury awarded

only $15,000 of the requested $174,741 in compensatory damages.

Additionally, Appellant received a $25,000 punitive damages award against

Officer Bateson.

Having obtained a favorable verdict, Appellant filed a motion for

attorney fees and costs under 42 U.S.C. § 1988. The district court

expressed the opinion that it would not have found for Appellant on his

claim against the City, but acknowledged that the jury verdict entitled

Appellant to an award of fees and costs. The court referred the fee petition

to a magistrate judge with direction to reduce the award on the ground that

counsel had spent many hours on unsuccessful claims. The magistrate

judge conducted an evidentiary hearing and entered a report and

recommendation reducing the amount as directed. Over Appellant’s

objection, the district court entered an order affirming the magistrate

4
judge’s report. This appeal followed.

I. AWARD OF ATTORNEY’S FEES AND COSTS UNDER § 1988

The parties understand our standard of review. “This court reviews

an award of attorney’s fees for abuse of discretion; nevertheless, that

standard of review still allows us to closely scrutinize questions of law

decided by the district court in reaching a fee award.” Clark v. Hous. Auth.

of Alma, 971 F.2d 723, 728 (11th Cir. 1992). It is undisputed that

Appellant is a prevailing party entitled to a reasonable award of fees and

costs under 42 U.S.C. § 1988. The current dispute is about the size of the

award only.

Ultimately, the computation of a fee award is necessarily an exercise

of judgment, because “[t]here is no precise rule or formula for making these

determinations.” Hensley v. Eckerhart, 461 U.S. 424, 436 (1983).

Extending deference to the district court’s factual findings, our review

concentrates on the application of the legal standards that have been

developed to guide the discretionary nature of fee determinations. See

Clark, 971 F.2d at 728.

The district court concluded that Appellant obtained only limited

success and spent many hours on unsuccessful claims. Appellant argues

5
that he obtained substantial relief and deserves full compensation for

vindicating an important public interest. He asserts that the time invested

was necessary to the outcome achieved. Appellees defend the district

court’s reduction of the fee award, arguing that the size of the

compensatory damage award evidences that the success Appellant obtained

was patently limited.

Among the many considerations a court must entertain when

calculating a § 1988 award, “the most critical factor is the degree of

success obtained.” Hensley, 461 U.S. at 436. This appeal presents

squarely the question of what constitutes “success” in a complex civil

rights case. We turn to that first, relying on prior cases that have addressed

that issue.

The thrust of Appellant’s argument is that, in a complex civil rights

case, “[a] jury verdict that a plaintiff’s constitutional rights have been

violated, by itself, represents success on a significant issue in the

litigation.” Aplt. Brief at 15. Therefore, Appellant argues, the verdict

alone justifies a full award of fees and costs. Appellant elaborates that the

public as a whole benefits from civil rights litigation, as distinguished from

a private tort suit where only the individual plaintiff benefits. See City of

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Riverside v. Rivera, 477 U.S. 561, 574 (1986); see also Blum v. Stenson,

465 U.S. 886, 895 (1984). Based on that distinction between private and

public benefit, he concludes that the amount of damages awarded do not

reflect the degree of success, “[w]hether the damage award is

$6,000,000.00 or $40,000.00.” Aplt. Brief at 15. His ultimate assertion is

that “[i]n this case, the amount of the award is irrelevant in justifying the

limited success argument.” Reply Brief at 3.

Appellant states the law correctly to the extent that success in a civil

rights claim is measured differently than success in a private tort claim.

Indeed: “Congress has elected to encourage meritorious civil rights claims

because of the benefits of such litigation for the named plaintiff and for

society at large, irrespective of whether the action seeks monetary

damages.” Blanchard v. Bergeron, 489 U.S. 87, 96 (1989). Moreover, the

Supreme Court has articulated the distinction advanced by Appellant:

“Unlike most private tort litigants, a civil rights plaintiff seeks to vindicate

important civil and constitutional rights that cannot be valued solely in

monetary terms.” Riverside, 477 U.S. at 574. That distinction, however,

does not lead to Appellant’s conclusion that monetary damages are, as a

matter of law, irrelevant in determining the degree of success obtained in a

7
civil rights action.

Taken to its logical limit, Appellant’s argument would make § 1988

awards full and automatic for plaintiffs who obtain a jury verdict that a

constitutional right was violated. That argument does not withstand

analysis under existing case law. It is well established that where “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, 461 U.S. at 436. That

principle is routinely applied in cases where plaintiffs have proven a

violation of a constitutional right but failed to achieve the full measure of

success sought. See Popham v. City of Kennesaw, 820 F.2d 1570, 1580

(11th Cir. 1987); Foster v. Bd. of Sch. Comm’rs, 810 F.2d 1021, 1024 (11th

Cir. 1987). There is no room to doubt that a court may reduce a § 1988

award when the degree of success obtained is limited, even when a plaintiff

obtains a favorable jury verdict that a constitutional right was violated.

“The amount of damages a plaintiff recovers is certainly relevant to the

amount of attorney’s fees to be awarded under § 1988.” Riverside, 477

U.S. at 574. Without further discussion, we reject the arguments that the

size of an award is irrelevant as a matter of law and that a jury verdict

8
alone proves success to have been complete.

Although we reject Appellant’s categorical argument, it is true that

success in a civil rights case “cannot be valued solely in monetary terms.”

See Riverside, 477 U.S. at 574. Furthermore, when determining the degree

of success obtained by a civil rights plaintiff, a court must be careful not to

place “undue emphasis on the modest money damages that were found by

the jury” because successful civil rights actions vindicate a public interest.

Williams v. Thomas, 692 F.2d 1032, 1038 (5th Cir. 1982). In this circuit,

we have previously explained that a court that reduced a § 1988 award

“would have erred had it ignored the fact that [the plaintiff in a civil rights

action] benefitted the public interest by vindicating his constitutional

rights.” Popham, 820 F.2d at 1580. Appellant asserts that the district court

committed that error here.

After acknowledging that Appellant was entitled to an award, the

district court directed the magistrate judge to reduce the award “in light of

the many hours Villano’s counsel spent litigating his multitudinous

unsuccessful claims.” Record, Vol. 8, Doc. 267, at 15. The magistrate

judge did not independently evaluate whether Appellant was entitled to a

full award. See Record, Vol. 8, Doc. 295, at 4. Concerned that the judges

9
were ignoring a fundamental aspect of his success, Appellant repeatedly

asserted that his entitlement to fees derived from the fact that he created a

public benefit by prevailing against a municipal defendant. See Plaintiff’s

Motion for Clarification Re: Court’s Omnibus Order and Order of

Reference, Record, Vol. 8, Doc. 269, at 4; Plaintiff’s Reply to Defendant

City of Boynton Beach’s Response in Opposition to Plaintiff’s Motion for

Attorney Fees and Costs, Record, Vol. 8, Doc. 264, at 5. Because

Appellant’s assertion accurately states the law governing § 1988 awards,

we have carefully reviewed the record to ascertain whether the district

court considered that principle–that a public benefit inures when a plaintiff

prevails against a public body in civil rights litigation.

Neither the district court nor the magistrate judge directly addressed

the public benefit principle. The judges may have contemplated it, as

suggested by the following citation to Riverside in the district court’s order

of reference, 477 U.S. at 575: “A rule that limits attorney’s fees in civil

rights cases to a portion of the damages awarded would seriously

undermine Congress’s purpose in enacting § 1988.” Record, Vol. 8, Doc.

267, at 12. However, for the following reason, we conclude that the district

court and magistrate judge failed to account for public benefit when

10
determining the actual extent of Appellant’s success.

The district court framed Appellant’s success by comparing it to the

success obtained by the plaintiff in Popham, 820 F.2d at 1579-80. Record,

Vol. 8, Doc. 267, at 12. This comparison belies the fact that Appellant

received a greater measure of success than the Popham plaintiff. Although

a reduction of a § 1988 award was upheld in Popham, the reasons cited

therein do not justify a reduction in this case. There, the plaintiff prevailed

on only one of eight claims submitted to the jury and received a

compensatory damage award of $30,000 after requesting $2,000,000.

Popham, 820 F.2d at 1579-80. In comparison, Appellant obtained money

damages ($40,000) closer to the amount requested ($174,741) and prevailed

on every claim submitted to the jury. We clarify that, although those

differences are relevant, they are not individually determinative and, if

those were the only comparisons to be made, we would defer to the

judgment of the district court. See, e.g., Perkins v. Mobile Hous. Bd., 847

F.2d 735, 739 (11th Cir. 1988) (upholding reduction of lodestar fee amount

where plaintiff did not prove constitutional violation, did not prevail on

every claim, and obtained only 1/25th of the monetary recovery sought).

However, there is an additional factual distinction between this case

11
and Popham. Although both plaintiffs sued a municipal defendant, only

Appellant prevailed on that difficult and important claim. See Popham, 820

F.2d at 1579. That distinction carries legal significance because

vindicating a constitutional right against a municipal defendant heightens

the public benefit created by a lawsuit. See Riverside, 477 U.S. at 574-76

(discussing the public benefit that inures from lawsuits that affect

institutional behavior); Popham, 820 F.2d at 1580 (deterrence of

unconstitutional conduct by public officials benefits citizens’ rights in the

future). Public benefit is a distinct measure of success in civil rights

actions and was a central aim of Appellant’s litigation.

To avoid undermining the purpose of § 1988, a court must account for

that distinct measure of success when calculating an award of fees and

costs. See Riverside, 477 U.S. at 575. The district court erred by relying

on Popham where a party failed to prevail against a municipal defendant.

As this circuit forecasted, we now hold that the district court erred in

reducing the fee award while ignoring public benefit, which is an important

measure of success. See Popham, 820 F.2d at 1580. Appellant is entitled

to an award of fees and costs commensurate with the extent of success

obtained. That success exceeds the degree recognized by the appealed

12
award.

On appeal, Appellees’ argument has focused primarily on the size of

the compensatory damages that the jury awarded Appellant. Although we

hold that the district court erred in reducing the fee award without

considering a distinct measure of success, we clarify that the court did not

err by considering the damage award as an indicator of success.

The relative importance of a money damage award must be

determined on a case-by-case basis. For example, monetary damages will

be wholly immaterial when a plaintiff seeks purely equitable relief. See

Hensley, 461 U.S. at 430 (citing Stanford Daily v. Zurcher, 64 F.R.D. 680

(N.D. Cal. 1974), aff’d, 550 F.2d 464 (9th Cir. 1977), rev’d on other

grounds, 436 U.S. 547 (1978)). On the other hand, where compensatory

damages constitute the primary relief sought and become the only relief

obtained, a court is not beyond its discretion in considering the damages

awarded as a relevant factor. See Corder v. Brown, 25 F.3d 833, 837 (9th

Cir. 1994). In any event, a court remains obligated to account for all

distinct measures of success when determining whether success was

limited.

Before turning our analysis to the actual computation of Appellant’s

13
award, we return to the reason for reduction articulated by the district

court. The district court directed the magistrate judge to reduce fees

because hours were spent litigating unsuccessful claims. See Record, Vol.

8, Doc. 267, at 12. The magistrate judge did not independently evaluate

whether fees should be reduced. See Record, Vol. 8, Doc. 295, at 23.

Appellant contends that his petition for fees and costs included only hours

spent on successful claims or on claims that were interrelated to the

litigation as a whole.

For purposes of § 1988 awards, the Supreme Court places primacy on

the results obtained. See Hensley, 461 U.S. at 435. When the results

achieved are excellent, “the fee award should not be reduced simply

because the plaintiff failed to prevail on every contention raised in the

lawsuit.” Id. Acknowledging that parties “in good faith may raise

alternative legal grounds for a desired outcome,” the Supreme Court has

instructed that “the district court should focus on the significance of the

overall relief obtained by the plaintiff.” Hensley, 461 U.S. at 435. The

conclusion follows: “Where a plaintiff has obtained excellent results, his

attorney should recover a fully compensatory fee.” Id.

Review of the record makes apparent that neither the district court

14
nor the magistrate judge evaluated whether plaintiff’s actual success

constituted an excellent result, notwithstanding the fact that some claims

were severed or dismissed. Moreover, given that neither judge

acknowledged the public benefit that occurred from prevailing against a

public body, their analysis would have been incomplete even if undertaken.

Determining whether a plaintiff obtained excellent results is a required

element of a § 1988 legal analysis. We direct the court to conduct that

analysis on remand. Hensley, 461 U.S. at 435.

Appellant prevailed against both Officer Bateson individually and the

City of Boynton Beach as a public body. By prevailing against the City,

Appellant obtained a more excellent result than the district court expected,

the court having commented that it would not have found for Appellant on

his claim against the city. On remand, the district court must examine the

qualitative value of those successes. See Jane L. v. Bangerter, 61 F.3d

1505, 1511 (10th Cir. 1995). In doing so, the court needs to account for the

vital role private litigation plays in the enforcement of civil rights, the

difficulties involved in sustaining those lawsuits, the heightened

importance of such lawsuits when the defendant is a public body, and the

public benefit that occurs when those lawsuits ultimately vindicate a

15
constitutional right.

If the court determines that the result obtained was an excellent

result, then the award of fees “will encompass all hours reasonably

expended on the litigation, and indeed in some cases of exceptional success

an enhanced award may be justified.” Hensley, 461 U.S. at 435. Whether

hours were reasonably expended on litigation is a different question than

whether hours were necessary to the litigation, the latter standard being the

more exacting of the two.

We draw that distinction after determining that the magistrate judge

applied a more exacting standard than simple reasonableness in evaluating

which hours were compensable. The magistrate judge examined the extent

to which time spent on additional claims contributed to the final judgment.

See Report and Recommendation, Record, Vol. 8, Doc. 295, at 24. On a

claim-by-claim basis, the magistrate judge gauged whether an overlap

between claims and the final judgment was sufficient to merit fees. See

Record, Vol. 8, Doc. 295, at 27, 29. Using that methodology, the

magistrate judge found not compensable the hours that Appellant had spent

on various claims brought against defendants who were eventually

dismissed from the case.

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 The magistrate judge’s analysis is appropriate if Appellant’s success

is deemed limited, but is overly exacting if the results obtained are deemed

excellent. In that case, all hours reasonably expended are compensable.

See Hensley, 461 U.S. at 435. Therefore, if on remand the court determines

that Appellant obtained an excellent result in light of the public benefit

created, the court must then reconsider the reasonableness of hours spent

litigating related claims, even if those hours were ultimately unnecessary in

light of the judgment finally obtained.

Having underestimated the extent of Appellant’s success by failing to

consider the associated public benefit, the magistrate judge reduced

Appellant’s lodestar fee amount from $77,000 to $69,300. See Record,

Vol. 8, Doc. 295, at 31. We direct the court to reconsider this reduction

and either allow the entire lodestar amount or lessen the reduction due to

the fact that Appellant’s success was greater than was contemplated by the

original reduction.

A final matter to be reconsidered on remand is whether supplemental

hours submitted by Appellant after the entry of judgment should be

included in the award. The parties do not dispute that Appellant’s original

motion for fees and costs was timely submitted. Based on the hours spent

17
working on post-trial motions and the litigation of fees and costs issues,

Appellant submitted several supplements to his original petition. This

matter is part of the appeal because the magistrate judge did not include in

the award of fees and costs the hours contained in those supplements.

Referring to Local Rule 7.3, the magistrate judge refused to consider the

supplements.

District Court Local Rule 7.3 requires that motions for attorney’s fees

and costs “be filed and served within 30 days of entry of Final Judgment or

other dispositive order.” Record, Vol. 8, Doc. 295, at 7. The magistrate

judge interpreted this rule to preclude all motions “filed after 30 days of

entry of final judgment,” extending that interpretation to supplementation

of the original motion. Id. It is beyond dispute that “district courts remain

free to adopt local rules establishing timeliness standards for the filing of

claims for attorney’s fees.” White v. New Hampshire Dep’t of Employment

Sec., 455 U.S. 445, 454 (1982). However, we do not accept the magistrate

judge’s interpretation of the local rule under review; moreover, we would

find a rule that eviscerated a statutory right to fees and costs in conflict

with federal law.

A prevailing party is entitled to reasonable compensation for

18
litigating a § 1988 award. See Jonas v. Stack, 758 F.2d 567, 568 (11th Cir.

1985). Additionally, post-judgment advocacy may generally be included in

a § 1988 award. See Mills by Mills v. Freeman, 118 F.3d 727, 733-34

(11th Cir. 1997). By limiting compensation to work performed before final

judgment or within 30 days of the entry of judgment, the interpretation of

Local Rule 7.3 urged by the magistrate judge and Appellee would

eviscerate a portion of the statutory entitlement created by § 1988, namely,

the entitlement to compensation for necessary post-judgment advocacy. A

local rule, however, cannot eviscerate a statutory right.

For purposes of this review, we note that the rule allows submissions

after “other dispositive orders.” That language refutes the magistrate

judge’s conclusion that all motions must be filed within 30 days of the final

judgment. In order to preserve the statutory right to fees and costs, we

interpret the rule to allow supplements to be filed within 30 days after the

entry of a post-judgment order ruling on a post-judgment motion. We

conclude that the magistrate judge erred by refusing to consider the

supplements to the § 1988 award. We direct the district court to correct

that mistake on remand. Post-judgment litigation continued until the

district court entered the order adopting the magistrate judge’s Report and

19
Recommendation on February 12, 1999. To the extent that the motions to

supplement relate to work performed during this stage of the litigation, they

are timely as late as thirty days after the February 12 order. If, however,

the motions to supplement relate to matters disposed of by a judgment or

order on which thirty days had already elapsed, we do not interfere with the

court’s prerogative to manage its docket by dismissing such filings.

In summation, we hold that the district court erred by ignoring a

distinct measure of Appellant’s success. After evaluating that success on

remand, the district court must determine whether the results obtained were

excellent. The outcome of that determination will dictate whether the court

needs to reconsider the compensability of other hours invested in the

litigation. In any event, the reduction of the lodestar must be reconsidered

and the supplements to the original fee petition must be considered for the

first time.

II. CALCULATION OF § 1988 AWARD

Much of the argument on appeal turns on factual disputes about the

calculation of the award. Appellant challenges the magistrate judge’s

reduction in his submitted hourly rate, number of hours, and costs. The

original § 1988 petition requested $132,695 in fees and $36,094.08 in costs.

20
After an evidentiary hearing, the magistrate reduced the regular hourly rate

from $250 to $200, the travel hourly rate from $150 to $100, the number of

regular hours spent on the litigation from 473 to 350, and the number of

travel hours from 96.30 to 70. The reductions rendered a lodestar attorney

fee award of $77,000. 1 After examining the cost statement, the magistrate

judge reduced the cost award from the requested $36,094.08 to $25,000.

We review each reduction in turn.

As the Supreme Court has recognized, “determining an appropriate

‘market rate’ for the services of a lawyer is inherently difficult.” Blum v.

Stenson, 465 U.S. 886, 895 n. 11 (1984). “In seeking some basis for a

standard, courts properly have required prevailing attorneys to justify the

reasonableness of the requested rate or rates.” Id. at 896 n.11. The

magistrate judge conducted an evidentiary hearing and considered

Appellant’s justifications for the requested rates, relying on the legal

framework established in Norman v. Hous. Auth. of Montgomery, 836 F.2d

1292, 1299-1301 (11th Cir. 1988). After considering the prevailing rates in

the market and the skill and reputation of Appellant’s counsel, the

1
This amount was then reduced to $69,300 based on the court’s finding of limited
success.

21
magistrate judge recommended lower hourly rates than were requested. See

Record, Vol. 8, Doc. 295, at 13. We do not find legal error in the

magistrate judge’s application of Norman, and Appellant’s arguments fail

to articulate anything more than a factual challenge.

Reviewing the facts, we note that Appellant’s expert witness

suggested that a reasonable fee would range from $200-$350 per hour.

Although the hourly rates awarded are apparently at the bottom end of the

reasonable scale, they are, nonetheless, within that range. “A district

court’s determination of a reasonable fee will not be upset absent an abuse

of discretion.” Popham, 820 F.2d at 1581. We have reviewed the record

carefully and do not find an abuse of discretion in the determination of

hourly rates.

A statement of hours was attached to Appellant’s original motion for

fees and costs. After reviewing that statement, the magistrate judge

determined that it did “not provide sufficient detail” in that it “does not

clearly identify the subject matter of each time expenditure.” Record, Vol.

8, Doc. 195, at 14. Therefore, the magistrate judge directed Appellant to

amend his petition and provide greater particularity for the hours requested.

In response, Appellant submitted a key to identify the claims represented

22
by each entry of billable hours. Even with the key, the magistrate judge

found the statement of hours “too vague to discern reasonableness and

legitimacy.” Record, Vol. 8, Doc. 295, at 16. On that ground, the

magistrate judge concluded that the requested hours should be reduced by

twenty-five percent.

There is a line of cases in this circuit establishing that “when hours

are disallowed the court should identify the hours disallowed and explain

why they are disallowed.” Loranger v. Stierheim, 10 F.3d 776, 783 (11th

Cir. 1994), citing Norman, 836 F.2d at 1304. However, we have also

recognized that in cases “[w]here fee documentation is voluminous,” it will

not be feasible to require a court to “engage in such a precise review.”

Loranger, 10 F.3d at 783. Appellant submitted 569.30 hours for

compensation. Those hours are extensive enough that we do not expect the

district court or the magistrate judge to conduct an hour-by-hour analysis in

this case.

After reviewing the record, we do not find legal error in the reduction

of Appellant’s hours. “Although the party seeking fees has the burden of

supplying the court with detailed evidence from which the court can

determine a reasonable fee, where that party presents inadequate

23
documentation the court may determine a reasonable award based on its

own experience.” Mills by Mills, 118 F.3d at 734. The magistrate judge

found the evidence submitted was insufficiently detailed and determined

that a reduction was necessary to offset possible redundancy in the hours

submitted. We do not find an abuse of discretion in those conclusions.

Appellant sought taxation of $36,094.08 in costs. As was the case in

the statement of hours, the magistrate judge found the statement of costs to

lack the particularity that would allow the court to determine the

reasonableness of the costs. This circuit has made explicit that “the

recoverability of costs is determined by the necessities of the case; even

relatively large or unusual costs may be taxed when they are reasonably

incurred; and there is no bar to complete recovery.” Dowdell v. City of

Apopka, 698 F.2d 1181, 1191 (11th Cir. 1983). The magistrate judge

correctly applied the law. We do not find an abuse of discretion in the

conclusion that $25,000 was a reasonable reimbursement.

III. MOTION FOR SANCTIONS

The final issue in this appeal is Appellant’s pursuit of sanctions

against Appellee for misconduct during trial. The primary aspect of the

alleged misconduct is that Appellee produced documents at trial that had

24
been requested by Appellant but never provided. The district court found

that to be true, but denied the motion for sanctions on the ground that

Appellant had failed to prove that the misconduct prejudiced him.

Appellant argues that the reduced compensatory damage award is strong

evidence of the prejudice that resulted.

Before we can address the merits of the motion for sanctions, we

must first assess our jurisdiction over the matter. See Fed. R. Civ. P.

12(h)(3). This is the second time Appellant has come to the Court of

Appeals seeking reversal of the denial of his motion for sanctions. We

track the history of this case to make that point clear and frame the

jurisdictional issue this panel now confronts.

Appellant filed his original motion for sanctions on March 17, 1998.

The motion was denied as part of an omnibus order entered by the district

court on July 7, 1998. Appellant timely filed a motion for rehearing.

Without notifying Appellant, the district entered an order on August 26,

1998, denying the motion for rehearing on the question of sanctions.

On February 11, 1999, the district court affirmed the report and

recommendation of the magistrate judge and entered the judgment that

forms the basis of the attorney’s fees and costs’ portion of this appeal. Not

25
knowing that the court had already ruled against his motion for rehearing

on sanctions, Appellant was surprised to discover that the February

judgment did not include a disposition on that issue. Appellant

immediately contacted the clerk of court. On March 4, 1999, the clerk of

court notified Appellant that the August 26, 1998 order had already

disposed of the sanctions issue. The district court admitted that the clerk of

court had failed to notify Appellant when that order entered, and in total

had committed more than a mere technical error because the court’s

conduct prevented Appellant from being able to file a timely appeal. By

this time, the 180-day time limit for appeal had expired. See Fed. R. App.

P. 4(a)(6).

On March 8, 1999, Appellant filed with the district court a motion for

leave to file a notice of appeal on the August order to which he joined a

proposed notice of appeal. The district court granted that motion. This

court, however, dismissed the appeal on August 31, 1999, because it had

not been timely filed. Appellant filed a motion for rehearing in which he

argued the same equities he urges to us now. The motion for rehearing was

denied.

After his case was dismissed by the court of appeals, Appellant

26
returned to the district court and filed a motion for relief under Fed. R. Civ.

P. 60(b), making the same equitable arguments before that court. The

district court granted relief from the August order and entered a new order

on October 5, 1999. This appeal followed Appellant’s filing of a timely

notice of appeal.

Whether Rule 60(b) can by employed by a district court to enable the

filing of a timely appeal is a controversial question. See generally Useden

v. Acker, 947 F.2d 1563, 1570-71 (11th Cir. 1991), cert. denied, 508 U.S.

959 (1993). The general rule is that Rule 60(b) “does not sanction the use

of this tactic for the naked purpose of enabling the filing of a timely

appeal.” Id. (citing Tucker v. Commonwealth Land Title Ins. Co., 800 F.2d

1054, 1056 (11th Cir. 1986) (per curiam)). However, “Rule 60(b) is an

appropriate escape valve” in certain cases. Useden, 947 F.2d at 1570. The

issue is further complicated by the fact that, since Congress amended the

Rule 4 deadline provision in 1991, subsequent cases have held that the 180-

day limitation is an “outer limit.” See, e.g., Zimmer St. Louis, Inc. v.

Zimmer Co., 32 F.3d 357, 360 (8th Cir. 1994). Indeed, the most recent

decision on this issue concludes that the one-time practice of enabling a

timely appeal “has been rendered obsolete and inapplicable . . . by the 1991

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addition of Rule 4(a)(6).” In re Stein, 197 F.3d 421, 426 (9th Cir. 1999).

Whether the Eleventh Circuit will join the circuits that have already

addressed the effect of the 1991 addition to Rule 4 is a question for another

case. Even if Rule 60(b) can enable a timely appeal, Rule 4

notwithstanding, we hold today that it cannot be employed to breathe

second life into an appeal that has already been taken and dismissed by the

appellate court. Appellant chose to file a patently untimely notice of

appeal and took his chances by arguing the equities to the appellate court.

That path was not Appellant’s only option. Instead, Appellant could

have first pursued Rule 60(b) relief from the district court judge.

Thereafter, if the district court had granted the motion, vacated the original

order, and entered a new order from which Appellant appealed, we would

then face squarely the question of whether to join our sister circuits in

concluding that the 1991 additions to Rule 4 preclude that series of events.

However, because Appellant proceeded directly to the appellate court,

we face a different constraint. “[I]t is the firmly established rule of this

Circuit that each succeeding panel is bound by the holding of the first panel

to address an issue of law, unless and until that holding is overruled en

banc, or by the Supreme Court.” United States v. Hogan, 986 F.2d 1364,

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1369 (11th Cir. 1993). A panel of this circuit already confronted the

equities implicated by Appellant’s appeal. Whether to allow Rule 60(b) to

enable a timely appeal is a purely equitable decision, and the equities we

would necessarily consider in determining whether to review this appeal are

the same equities already rejected by another panel of this court.

Therefore, that issue has been decided.

Appellee filed a motion to dismiss appeal number 99-14277. We do

not address the merits of the sanctions issue nor do we take up the Rule

60(b) question because that motion to dismiss is granted.

Having reviewed all the issues on appeal, we affirm in part, reverse in

part, and remand to the district court for further proceedings consistent with

this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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EDMONDSON, Circuit Judge, concurring in part and dissenting in part:

I would affirm the district court’s decisions.

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