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
Saizan v. Delta Concrete Products Co.
Court: Court of Appeals for the Fifth Circuit
Date filed: 2006-05-05
Citations: 448 F.3d 795
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