[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
October 14, 2004
No. 04-11497
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 02-00917-CV-ORL-31-JGG
ASSOCIATION FOR DISABLED AMERICANS, INC., et al.,
Plaintiffs,
JORGE LUIS RODRIGUEZ,
DISABILITY ADVOCATES AND COUNSELING GROUP, INC.,
STEVEN BROTHER,
Plaintiffs-Appellants,
versus
INTEGRA RESORT MANAGEMENT, INC.,
ENCLAVE RESORT HOTEL, L.L.C.,
d.b.a. The Enclave,
THE ENCLAVE AT ORLANDO CONDOMINIUM ASSOCIATION,
INC.,
a Florida non-profit corporation,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 14, 2004)
Before BLACK, BARKETT and GODBOLD, Circuit Judges.
PER CURIAM:
This case comes to us on a challenge to an attorney’s fee award and costs set
by a magistrate. We are unable engage in a meaningful review of the magistrate’s
decision because he did not articulate a basis or methodology for the award.
In November 2003 the above parties entered into a consent decree in which
the appellees agreed to settle the appellants’ Americans With Disabilities claim, 42
U.S.C. §12818 and to pay (1) appellants’ reasonable attorney fees, litigation
expenses and costs and (2) appellants’ expert for reasonable expert fees and costs.
Under the agreement any dispute over the reasonableness of such fees and costs
may be resolved by either a district judge or a magistrate judge. In December 2003
a dispute ensued over the reasonableness of the fees and costs sought by the
appellants. The issue was referred to a magistrate. The appellees disputed the
award sought by the appellants on several grounds including: the hourly rate used
by the appellants’ counsel, number of hours billed, the costs sought by appellants’
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counsel, the multiplier sought by the appellants and the expert’s costs and fees.
The magistrate issued a cursory order in which he delineated the amount
sought by the appellants for costs and fees under the multiplier methodology
($147,366.54) and the amount believed by the appellees to be reasonable
($22,686.30). The appellees argued that the appellants’ multiplier claim was so
unreasonable that the appellees should not be required to pay for responding to it.
The magistrate agreed with the appellees and reduced the award by $2,000.
Consequently the magistrate entered a judgment for the appellants in the amount of
$20,686.30. The appellants now appeal, seeking $62,102.09, an amount solely
made up of attorney and expert fees and costs. This amount excludes the
multiplier that had previously been used by appellants to arrive at the figure of
$147,366.54.
“We review a [magistrate’s] order awarding attorney fees for an abuse of
discretion.” American Civil Liberties Union of Georgia v. Barnes, 168 F.3d 423,
427 (11th Cir. 1999). The magistrate’s order “‘must articulate the decisions it
made, give principled reasons for those decisions, and show its calculations.’” Id.
(quoting Norman v. Housing Auth. of Montgomery, 836 F.2d 1292, 1304 (11th
Cir. 1988)). Otherwise we are left with no basis on which to review the
magistrate’s decision. See Davis v. Fletcher, Jr., 598 F.2d 469, 470 (5th Cir.
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1979).1 In reaching its calculations the magistrate should calculate the number of
hours reasonably expended multiplied by a reasonable hourly rate. Barnes, 168
F.3d at 427. “If the [magistrate] disallows hours, it must explain which hours are
disallowed and show why an award of these hours would be improper.” Norman
v. Housing Auth. of Montgomery, 836 F.2d 1292, 1304 (11th Cir. 1988).
The magistrate did not articulate a basis for the award or show the hourly
rate calculations utilized. He simply adopted the fees and costs asserted by
appellees as reasonable. Without an explanation of the basis for the award we lack
the necessary foundation for our review. See Davis, 598 F.2d at 471.
While this appeal was pending appellees have filed a motion to dismiss the
appeal as moot because $20,686.30 was tendered to appellants pursuant to an order
by the district court. The order provided that the payment did not affect the appeal
and accordingly does not impact our decision. Appellees invoke our decision in
Fidelcor Mortgage Corp. v. Ins. Co. of N. Am., 820 F.2d 367 (11th Cir. 1987) to
support their argument that this appeal is rendered moot by satisfaction of the
judgment. In Fidelcor however the party did not reserve any issues for appeal. See
id. at 370. In this case appellants, as the order confirms, specifically reserved their
right to appeal before accepting payment. Merely accepting the $20,686.30
1
Decisions rendered by the United States Court of Appeals for the Fifth Circuit prior to
September 30, 1981 shall be binding as precedent on the Eleventh Circuit. Bonner v. City of
Pritchard, 661 F.2d 1206, 1207 (11th Cir. 1981).
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payment, without evidence of some intent to end the litigation, did not waive
appellants’ right to appeal. See In re Tudor Assocs., Ltd., II, 20 F.3d 115, 118 (4th
Cir. 1994).
Appellees motion to dismiss the appeal as moot is DENIED.
This case is REMANDED to the district court for reconsideration and a full
explicit explanation of the basis for the magistrate’s award.
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