[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
_____________________________ COURT OF APPEALS
U.S.
ELEVENTH CIRCUIT
June 25, 2003
No. 02-13402 THOMAS K. KAHN
_____________________________ CLERK
D. C. Docket No. 98-00407-CV-WBH-1
MARIE THOMPSON,
Plaintiff-Appellant
Cross-Appellee,
versus
PHARMACY CORPORATION OF AMERICA, INC.,
PHARMERICA DRUGS SYSTEM, INC.,
Defendants-Appellees
Cross-Appellants.
_________________________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________________________
(June 25, 2003)
Before EDMONDSON, Chief Judge, KRAVITCH, and GIBSON*, Circuit Judges.
________________
*Honorable John R. Gibson, United States Circuit Judge for the Eighth Circuit, sitting by
designation.
PER CURIAM:
This case involves the determination of reasonable attorney’s fees in a
successful civil rights case. Because the district court deducted from the
attorney’s fee calculation all of the time expended on litigating the fee issue, we
reverse the district court’s decision about attorney’s fees, in part, and remand.
BACKGROUND
Marie Thompson filed an employment discrimination suit against Pharmacy
Corporation of America and Pharmerica Drug Systems, Inc. (collectively “PCA”),
claiming that PCA racially discriminated against her in violation of 42 U.S.C. §
1981. A single claim of discriminatory failure to promote was tried before a jury.1
In that claim, Thompson alleged that a white woman -- whom Thompson trained --
was given the position of IV Reimbursement Coordinator ahead of Thompson, a
black woman. At the trial, PCA moved for judgment as a matter of law both at the
close of Thompson’s case and at the close of all the evidence. The district court
1
In the amended complaint (as interpreted by the district court), Thompson brought five claims:
three failure-to-promote claims, a hostile work-environment claim, and a retaliation claim. The
district court granted PCA’s motion for summary judgment on four of the five claims, leaving only
the claim for failure to promote Thompson to the position of IV Reimbursement Coordinator.
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denied the motions, and the discrimination claim was submitted to the jury. The
jury returned a verdict in favor of Thompson and awarded her $10,000 in
compensatory damages and $75,000 in punitive damages.2
After obtaining a favorable verdict, Thompson’s attorney, Ethel L. Munson,
filed a motion for attorney’s fees pursuant to 42 U.S.C. § 1988. Ms. Munson’s
fee request comprised time spent exclusively on the successful discriminatory
promotion claim and a fraction of the combined time expended on the successful
and unsuccessful claims together. Ms. Munson included in her itemizations the
time that she spent working on the attorney’s-fee issue. In addition to the original
motion for fees, Ms. Munson submitted three supplemental filings to the district
court (each time raising the dollar amount of her fee request) and a motion to
compel discovery on the fee issue.
2
Following entry of the jury’s verdict in favor of Thompson, PCA again moved for judgment as
a matter of law, arguing that Michelle Bishop (the white woman promoted to the IV Reimbursement
Coordinator position) possessed such superior qualifications to Thompson that no reasonable jury
could find otherwise, and arguing in the alternative that punitive damages were unwarranted. The
district court concluded that Defendants “failed to establish that the evidence presented at trial was
so one-sided that it must prevail as a matter of law.” See Anderson v. Liberty Lobby, Inc., 106 S.Ct.
2505, 2512 (1986)(stating question for directed verdict is “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must prevail
as a matter of law”). Defendants cross-appeal the district court’s denial of the motion. We agree
with the district court that the claim for failure to promote Thompson presented close questions of
fact -- facts upon which reasonable people could reach different answers -- that were properly
submitted to the jury. We affirm the district court’s ruling on the motion for judgment as a matter
of law.
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The district court culled from Ms. Munson’s itemized submissions those
entries that described activities about the litigation of attorney’s fees: the entries
totaled 70.01 hours; and the district court allowed no recovery for Ms. Munson’s
time spent on the fee issue. The district court reasoned -- based on the many
submissions by Ms. Munson about attorney’s fees -- that Ms. Munson had
engaged in excessive and unnecessary work in seeking fees and should receive no
compensation for her inefficiency. The district court also reduced the number of
work hours and the hourly rate that Ms. Munson claimed was necessary to
compensate her for Thompson’s representation on the successful claim. Ms.
Munson -- through her client -- appeals the district court’s diminishment of the
claimed fee.
DISCUSSION
Section 1988 permits successful civil rights litigants to recover a
reasonable attorney’s fee.3 The determination of appropriate fees is a discretionary
matter for the district court, 42 U.S.C. § 1988; and we review the district court’s
3
“In any action or proceeding to enforce a provision of section[] 1981 . . . the court, in its
discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee
as part of the costs . . . .” 42 U.S.C. § 1988(b).
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fee calculations for an abuse of that discretion. But “that standard of review still
allows us to closely scrutinize questions of law decided by the district court in
reaching a fee award.” Villano v. City of Boynton Beach, 254 F.3d 1302, 1304
(11th Cir. 2001)(quoting Clark v. Housing Auth. of Alma, 971 F.2d 723, 728 (11th
Cir. 1992)). The explanation for the district court’s fee determination must be
sufficiently stated so that meaningful appellate review is possible. Norman v.
Housing Auth. of Montgomery, 836 F.2d 1292, 1304 (11th Cir. 1988)(stating
court’s fee order “must allow meaningful review -- the district court must
articulate the decisions it made, give principled reasons for those decisions, and
show its calculation. If the court disallows hours, it must explain which hours are
disallowed and show why an award of these hours would be improper.”)(citations
omitted).
We have said that an attorney may recover fees for time spent litigating the
award of a section 1988 fee. Villano, 254 F.3d at 1309 (“A prevailing party is
entitled to reasonable compensation for litigating a § 1988 award. Additionally,
post-judgment advocacy may generally be included in a § 1988 award.”)(citations
omitted); see also Johnson v. Mississippi, 606 F.2d 635, 638 (5th Cir. 1979)(“We
conclude that attorney’s fees may be awarded for time spent litigating the fee
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claim.”). Ms. Munson argues that the district court abused its discretion -- in part
-- by awarding her no compensation for the time she spent litigating the fee issue.
The district court noted that Ms. Munson engaged in much unnecessary litigation
about fees -- resulting in many filings -- and disallowed all of the 70.01 hours Ms.
Munson claimed she expended while pursuing fees.
Lawyers should not be compensated for turning the litigation about
attorneys’ fees into a “second major litigation.” Hensley v. Eckerhart, 103 S.Ct.
1933, 1941 (1983). The district court, however, may not entirely deny civil rights
litigants the recovery of statutory fees (which we have said includes fees for
litigating fees). Ms. Munson’s entitlement to fees is a creature of legislative fiat
and includes compensation for her reasonable efforts to pursue those statutory
fees. The effect of completely denying compensation to Ms. Munson for the time
she spent on the fee issue is to diminish the proper net award of attorney’s fees for
the successful civil rights claim: an outcome that frustrates the intent of Congress.
Villano, 254 F.3d at 1309 (stating court rule allowing no recovery on belated fee
submissions “would eviscerate a portion of the statutory entitlement created by §
1988, namely, the entitlement to compensation for necessary post-judgment
advocacy”); Johnson, 606 F.2d at 638 (“‘[I]f an attorney is required to expend time
litigating his fee claim, yet may not be compensated for that time, the attorney’s
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effective rate for all the hours expended on the case will be correspondingly
decreased.’”)(quoting Prandini v. National Tea Co., 585 F.2d 47, 53 (3d Cir.
1978)).
The district court abused its discretion -- as a matter of law -- when it
deducted all the time attributed to Ms. Munson’s efforts to recover a fee. See
generally Norman, 836 F.2d at 1305-06 (“The court on reconsideration should
bear in mind that the measure of reasonable hours is determined by the
profession’s judgment of the time that may be conscionably billed and not the least
time in which it might theoretically have been done.”).
Ms. Munson also appeals the district court’s decision to reduce the number
of hours and the hourly rate associated with Ms. Munson’s claim for fees. We
conclude that the district court’s fee reduction in this respect was within the
court’s discretionary authority.
Ms. Munson also argues -- through her client -- that the district court denied
her the constitutional right to an evidentiary hearing on the fee issue. A hearing
on the fee issue is required “where an evidentiary hearing was requested, where
there were disputes of fact, and where the written record was not sufficiently clear
to allow the trial court to resolve the disputes of fact . . . .” Norman, 836 F.2d at
1303. An evidentiary hearing is unnecessary for issues about which the district
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court possesses sufficient expertise: “Such matters might include the
reasonableness of the fee, the reasonableness of the hours and the significance of
[the] outcome.” Id. at 1304. Because Ms. Munson has indicated no place in the
record where she unequivocally requested an evidentiary hearing on the fee issue,
Ms. Munson failed to meet the first prerequisite for obtaining a hearing (that she
plainly request one in the first place). In addition, the issues that Ms. Munson
would have raised at an evidentiary hearing were within the district court’s
expertise to decide without further evidence or argument beyond the written
submissions.
The district court’s reduction of Ms. Munson’s attorney’s fees was within
the district court’s proper exercise of discretion, except that the district court’s
conclusion that Ms. Munson should receive no compensation for the time she
spent on the fee issue was an abuse of discretion. While we place no obligation on
the district court to approve all of Ms. Munson’s requested compensation on the
fee-for-fees issue, we are confident that some legitimate time was expended by
Ms. Munson in pursuing fees.
We affirm, except for the district court’s decision about fees for litigating
the principal fees; and we remand for further proceedings.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
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