Jones v. Central Soya Co., Inc., 83-7468

• Decision Date: 10 December 1984
• Docket Number: No. 83-7468,83-7468
• Citation: 748 F.2d 586
• Court: U.S. Court of Appeals — Eleventh Circuit
• Parties: 38 Fair Empl.Prac.Cas. 1386, 35 Empl. Prac. Dec. P 34,817 Thomas S. JONES, Plaintiff-Appellant, Cross-Appellee, v. CENTRAL SOYA COMPANY, INC., Defendant-Appellee, Cross-Appellant.

Page 586

748 F.2d 586

38 Fair Empl.Prac.Cas. 1386,

35 Empl. Prac. Dec. P 34,817

Thomas S. JONES, Plaintiff-Appellant, Cross-Appellee, v. CENTRAL SOYA COMPANY, INC., Defendant-Appellee, Cross-Appellant.

No. 83-7468.

United States Court of Appeals Eleventh Circuit.

Dec. 10, 1984.

Champ Lyons, Jr., Mobile, Ala., for plaintiff-appellant, cross-appellee.

William C. Tidwell, III, Kathryn Anne Eckerlein, Mobile, Ala., for defendant-appellee, cross-appellant.

Appeals from the United States District Court for the Southern District of Alabama.

Before HILL and HENDERSON, Circuit Judges, and WISDOM ^*, Senior Circuit Judge.

ALBERT J. HENDERSON, Circuit Judge:

Thomas S. Jones and Central Soya Company, Inc. ("Central") both challenge the reasonableness of the amount of attorney's fees awarded to Jones by the United States District Court for the Southern District of Alabama in a successful action against Central alleging a violation of the Age Discrimination in Employment Act, 29 U.S.C. Secs. 621-634 ("ADEA"). The jury found Central's conduct to be willful and awarded Jones double damages in the amount of $41,666.42. The district court later granted Jones an additional interim amount of $18,796.00 as well as reinstatement with full pension benefits.

Pursuant to a provision in 29 U.S.C. Sec. 216(b) authorizing reasonable attorney's fees to the prevailing plaintiff in an ADEA action, the district court awarded Jones approximately $24,000.00 allocable to counsel fees. On appeal, Jones alleges that the amount was insufficient because of 1) the exceptional result obtained in the litigation, 2) the purported contingency fee arrangement between Jones and his counsel, and 3) the delay in payment of the attorney's fees. Central cross appeals, contending that the district court improperly awarded Jones attorney's fees for the time billed for the work of an unnecessary second trial lawyer.

Awards of attorney's fees in age discrimination actions are governed by 29 U.S.C. Sec. 216(b) which provides: "[t]he 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. Sec. 626(b) (rendering section 216(b) applicable to ADEA actions). A number of factors are relevant to the determination whether such an award is reasonable, the most familiar of which were discussed at length in Johnson v. Georgia Highway Express, 488 F.2d 714, 717-19 (5th Cir.1974). ¹

In this case, the district court based its award on a "lodestar" figure consisting of the product of the time invested by Jones' counsel and an hourly rate. Record, vol. 1, pp. 381-84. ² In doing so, the district court addressed each of the factors listed in Johnson and concluded that no adjustment of the lodestar amount was necessary. See id. at 381-86. ³ We may overturn this award only for "clear abuse of discretion." Dowdell v. City of Apopka, 698 F.2d 1181, 1187 (11th Cir.1983).

Jones first contends that the lodestar figure should have been increased because of the results obtained in the ADEA action. The district court reasoned that although counsel "achieved substantial relief for the plaintiff in this case, the court does not feel that counsel is entitled to an enhancement bonus on this factor." Record, vol. 1, p. 385.

The Supreme Court of the United States has instructed that "[b]ecause acknowledgment of the 'results obtained' generally will be subsumed within other factors used to calculate a reasonable fee it normally should not provide an independent basis for increasing the fee award." Blum v. Stenson, --- U.S. ----, ----, 104 S.Ct. 1541, 1549, 79 L.Ed.2d 891, 903 (1984). However, "in some cases of exceptional success an enhanced award may be justified." Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 1940, 76 L.Ed.2d 40, 52 (1983); see Blum, --- U.S. at ----, 104 S.Ct. at 1550, 79 L.Ed.2d at 903 (quoting Hensley ). We are confronted here with the question whether the result in this case constitutes "exceptional success."

Although the Supreme Court has not yet addressed in detail the circumstances under which an award of attorney's fees should be enhanced because of the result obtained, the Court noted in Blum that "where the experience and special skill of the attorney ... require the expenditure of fewer hours than counsel normally would be expected to spend on a particularly novel or complex issue" an increase may be warranted. Blum, --- U.S. at ----, 104 S.Ct. at 1549, 79 L.Ed.2d at 902. See also Ramos v. Lamm, 713 F.2d 546, 557 (10th Cir.1983) (- "exceptional success" may be based upon extraordinary economies of time given the complexity of the task).

Other courts have articulated additional factors that may justify an enhanced attorney's fee award such as the development of new law furthering important congressional policies, see Phillips v. Smalley Maintenance Services, Inc., 711 F.2d 1524, 1530-31 (11th Cir.1983); Johnson, 488 F.2d at 718; accord Ramos, 713 F.2d at 557, ⁴ success achieved under unusually difficult circumstances, see White v. City of Richmond, 713 F.2d 458, 462 (9th Cir.1983) (near complete success achieved in face of highly unfavorable law); Ramos, 713 F.2d at 557 ("unusually difficult circumstances"), ⁵ and the size of the award. See Yates v. Mobile County Personnel Board, 719 F.2d 1530, 1533 (11th Cir.1983); Wolf v. Frank, 555 F.2d 1213, 1218 (5th Cir.1977); Johnson, 488 F.2d at 718. ⁶

None of these grounds is sufficiently present in this case to compel the conclusion that the district court abused its discretion. There is no indication that the success of Jones' attorneys was achieved with any special economics of time or under unusually difficult circumstances. ⁷ Moreover, the case did not establish significant new law furthering an important congressional goal, and the $60,462.42 recovered is not such a substantial amount as to require enhancement. ⁸

In Ramos the Court of Appeals for the Tenth Circuit observed that "total victory" may constitute "exceptional success." Ramos, 713 F.2d at 557. The main thrust of Jones' argument appears to be based precisely on this point. According to Jones, because he prevailed on all his claims he is entitled to an enhanced award of attorney's fees.

We decline, however, to equate "total success" with "exceptional success." Although the Supreme Court in Hensley observed that "the extent of a plaintiff's success is a crucial factor in determining the proper amount of an award of attorney's fees," Hensley, 461 U.S. at 440, 103 S.Ct. at 1943, 76 L.Ed.2d at 54, the Court has never suggested that complete victory alone requires an enhanced award. Indeed, the Court specifically distinguished "excellent" results from "exceptional" results and instructed that only the latter could justify an increased grant of attorney's fees. Id., 461 U.S. at 435, 103 S.Ct. at 1940, 76 L.Ed.2d at 52. Winning on all claims does not seem to us to be so unusual that it must be deemed "exceptional."

Furthermore, the Court in Hensley held that, given the vast range of success possible in a civil rights action, a decrease in the lodestar amount is not required simply because the plaintiff failed to win every contention raised in his lawsuit. Hensley, 461 U.S. at 440, 103 S.Ct. at 1943, 76 L.Ed.2d at 55. We believe the converse follows--just as losing on some claims does not necessarily mandate a decrease in the lodestar figure, neither does winning on all claims demand an increased amount. The central inquiry remains whether the expenditure of counsel's time was reasonable in light of the overall success achieved. See id., 461 U.S. at 436, 103 S.Ct. at 1941, 76 L.Ed.2d at 52.

A contrary boilerplate rule that total victory mandates a larger award of attorney's fees would mean that lawyers fortunate enough to attract clients with highly meritorious claims would always be entitled to increased attorney's fees. Statutory entitlements to attorney's fees were not designed to provide windfalls to lawyers. See, e.g., S.Rep. No. 1011, 94th CONG., 2d SESS. 6 (1976), reprinted in [1976] U.S.CODE CONG. & AD.NEWS 5908, 5913 (Civil Rights Attorney's Fees Awards Act).

This is not to say that the totality of the success is never a relevant factor in determining whether a result is "exceptional." We simply hold that the mere fact that a plaintiff recovered everything he sued for in the underlying litigation does not, by itself, mandate an enhanced award. In an appropriate case, the completeness of the success might be weighed along with the legal and factual hurdles, the economies of time and skill involved, the monetary award and the law created in evaluating whether a result is "exceptional." Because the other influences are not present in this case, we conclude that the district court did not abuse its discretion in declining to enlarge the fee notwithstanding the fact that Jones recovered on all claims. ⁹

Jones next asserts that the district court erred by not considering the contingency fee arrangement he allegedly had with his counsel. The Supreme Court recently deferred a ruling on whether an upward adjustment of the attorney's fees is authorized because of the risk of nonrecovery. See Blum, --- U.S. at ----, 104 S.Ct. at 1550 n. 17, 79 L.Ed.2d at 903 n. 17. ¹⁰ It is well established in this circuit, however, that a contingency fee arrangement may justify an increase in an award of attorney's fees. See, e.g., Hall v. Board of School Commissioners, 707 F.2d 464 (11th Cir.1983) (per curiam); Marion v. Barrier, 694 F.2d 229, 231-32 (11th Cir.1982) (per curiam); Jones v. Diamond, 636 F.2d 1364, 1382 (5th Cir.) (en banc), cert. dismissed, 453 U.S. 950, 102 S.Ct. 27, 69 L.Ed.2d 1033 (1981).

To decide the issue in this case we must distinguish between two types of risks an attorney may assume in making a fee arrangement. First, an attorney may risk all entitlement to fees by entering into a conventional contingency...