Bivins v. Wrap It up, Inc.

• Decision Date: 28 August 2008
• Docket Number: No. 08-11478 Non-Argument Calendar.,08-11478 Non-Argument Calendar.
• Citation: 548 F.3d 1348
• Parties: Christopher BIVINS, Plaintiff-Appellant, v. WRAP IT UP, INC., d.b.a. Nature's Way Café, Annie Raso, Defendants-Appellees, Nature's Way Café Franchising, LLC, Defendant.
• Court: U.S. Court of Appeals — Eleventh Circuit

548 F.3d 1348

Christopher BIVINS, Plaintiff-Appellant, v. WRAP IT UP, INC., d.b.a. Nature's Way Café, Annie Raso, Defendants-Appellees Nature's Way Café Franchising, LLC, Defendant.

No. 08-11478 Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

August 28, 2008.

Randall C. Marshall, Am. Civ. Liberties Union of Fl, Inc., Miami, FL, for Bivins.

Arthur T. Schofield, Arthur T. Schofield, P.A., West Palm Beach, FL, for Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before MARCUS, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM:

After a two-day bench trial, the district court found that plaintiff/appellant Bivens had been discriminated against by Annie Raso, the co-owner of a Nature's Way Café, and Wrap it Up, Inc., the franchisor of Nature's Way. The district court awarded both compensatory and punitive damages, injunctive relief, and—in accordance with 42 U.S.C. § 1988—costs and attorneys' fees to Bivens's counsel Linda J. Ehrlich and Randall C. Marshall.¹ Bivens's request for attorneys' fees was significantly reduced and he now appeals that award.

Section 1988 allows for the recovery of "reasonable" attorneys' fees. 42 U.S.C. § 1988. The starting point for determining the amount of a "reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). The product of these two figures is the lodestar and there is a "strong presumption" that the lodestar is the reasonable sum the attorneys deserve. See Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 565-66, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986).

When a district court finds the number of hours claimed is unreasonably high, the court has two choices: it may conduct an hour-by-hour analysis or it may reduce the requested hours with an across-the-board cut. See Loranger v. Stierheim, 10 F.3d 776, 783 (11th Cir.1994) (holding that where the billing record is voluminous, "the district court need not engage in an hour-by-hour analysis[; r]ather, ... it may [] reduce [the hours devoted to litigation] in gross if a review of the resubmitted fee request warrants such a reduction") (emphasis added). In determining what is a "reasonable" hourly rate and what number of compensable hours is "reasonable," the court is to consider the 12 factors enumerated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974).²

When the number of compensable hours and the hourly rate are reasonable, a downward adjustment to the lodestar is merited only if the prevailing party was partially successful in its efforts. Resolution Trust Corp. v. Hallmark Builders, Inc., 996 F.2d 1144, 1150 (11th Cir.1993).³

Here, in fashioning the attorneys' fees award, the district court first calculated a reasonable hourly rate for Ehrlich and Marshall.⁴ After calculating a reasonable hourly rate—which Bivens does not dispute—the court then engaged in an hour-by-hour analysis for 463.3 of the 616.4 hours requested by Ehrlich and all of the 51.7 hours requested by Marshall. For each of 15 specific categories of requested hours, the court found a certain portion of those hours to be "reasonable" and explicitly stated so. The court never explicitly used language from Johnson but it is clear that the court considered the first Johnson factor (the "time and labor required") in fashioning a "reasonable" number of hours for each specific category of requested hours.

After conducting this hour-by-hour analysis, the district court then applied a further 35% across-the-board reduction in the requested hours. This reduction applied to those hours already subjected to the hour-by-hour analysis and found to be "reasonable," in addition to the 153.1 other (primarily administrative) hours requested but not specifically discussed in the hour-by-hour analysis. In applying this 35% reduction, the district court explained that it had applied the Johnson factors. The district court specifically stated that it considered the "attorney's skill," "type of case," "preclusion of other employment," "time limitations imposed by the client or the circumstances," "difficulty and novelty of the case," and—most importantly—the "time and labor required," a Johnson factor already considered in the hour-by-hour analysis. After applying this reduction, the court stated that the new figure was "reasonable."

Having arrived at a reasonable hourly rate and a reasonable number of compensable hours, the district court thus arrived at the lodestar. The district court then adjusted the lodestar amount; it reduced it by 50% based on the "excessive amount of time spent on some activities in disproportion to the relatively straight-forward nature of the claim, and the isolated, brief encounter that led to the lawsuit."

We review the award of attorneys' fees for abuse of discretion, reviewing questions of law de novo and reviewing findings of fact for clear error. Atlanta Journal and Constitution v. City of Atlanta Dept. of Aviation, 442 F.3d 1283, 1287 (11th Cir.2006). An error of law is per se abuse of discretion. Resnick v. Uccello Immobilien GMBH, Inc., 227 F.3d 1347, 1350 (11th Cir.2000). Any reductions to the requested hours must be concisely and clearly explained to allow for appellate review; otherwise, we must remand. Loranger, 10 F.3d at 783.

We conclude that the district court erred in two ways. First, in arriving at the lodestar, the district court conducted both an hour-by-hour analysis and applied an across-the-board reduction of the requested compensable hours. Our circuit's precedent states that the district court is to apply either method, not both. See id. The reason for this is easy to understand by requiring the district court to conduct either analysis instead of both, we ensure that the district court does not doubly-discount the requested hours, as was the case here.⁵ We therefore remand to the district court to determine the "reasonable" number of compensable hours to be included in the lodestar.

Second, the district court erred in adjusting the lodestar downward by 50%. Such an adjustment is warranted only if the plaintiff was partially successful in...