Miller v. Raytheon Co.

• Decision Date: 27 December 2013
• Docket Number: Civil Action No. 3:09-cv-440-O
• Parties: RICHARD MILLER, Plaintiff, v. RAYTHEON COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Texas

RICHARD MILLER, Plaintiff, v. RAYTHEON COMPANY, Defendant.

Civil Action No. 3:09-cv-440-O

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION

SO ORDERED: December 27, 2013

MEMORANDUM OPINION & ORDER

This case is on remand from the United States Court of Appeals for the Fifth Circuit. See Miller v. Raytheon Co., 716 F.3d 138 (5th Cir. 2013). The two matters before the Court are Plaintiff Richard Miller's ("Miller" or "Plaintiff") motion for attorneys' fees and Plaintiff and Defendant Raytheon Company's ("Raytheon" or "Defendant") post-remand briefs concerning front pay and other benefits.¹ These matters have been fully briefed and are ripe for determination.

I. FACTUAL & PROCEDURAL BACKGROUND

Miller filed this lawsuit on March 6, 2009, alleging that Raytheon terminated him because of his age. See Pl.'s Original Compl., ECF No. 1. Miller was 53 years old at the time he wasreleased and had worked for Raytheon, or a predecessor company, for almost 29 years. Id. He asserted a claim for age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), and an age discrimination claim under the Texas Commission on Human Rights Act ("TCHRA"). Id. Miller sought compensatory damages, punitive damages, equitable relief, attorneys' fees, expert fees, and costs of suit. Id. Raytheon defended its decision to release Miller by arguing that it was facing a severe budget short fall, and he was one of many employees included in a reduction in force. See Br. Supp. Mot. Summ. J., ECF No. 39-2. The case was submitted to a jury, which found for Miller and awarded him actual, mental anguish, and punitive damages on both claims. See Jury Verdict, ECF No. 102.

The Parties filed post-trial briefs in which Defendant argued that the jury's verdict should be set aside, certain damage amounts remitted, or a new trial ordered. See Order 2, May 13, 2011, ECF No. 168. Plaintiff contended that judgment should be awarded in his favor in the amount specified by the jury. Id. The Court affirmed the jury's verdict of willful age discrimination, held past pension benefits were an element of back pay rather than front pay, awarded liquidated damages, ordered a remitted amount of emotional distress damages, declined to award punitive damages, and awarded approximately $186,628 for one year's front pay. Id. After the Court entered judgment, Miller moved for $711,323 in attorneys' fees. See Pl.'s Mot. Fees 1, ECF No. 169. The Court granted Miller's motion in part and awarded $488,437.08, after reducing the hours worked and the hourly rate. See Order, Sept. 15, 2011, ECF No. 187.

Thereafter, both parties appealed. Raytheon asserted this Court erred in: (1) denying judgment as a matter of law, (2) not granting its motion for new trial, (3) concluding the evidence supported a finding of willful discrimination, (4) allowing the jury to consider the loss of pensionbenefits as a component of back pay, and (5) concluding the evidence supported a finding of mental anguish. Miller, 716 F.3d at 143. Miller argued the Court erred in: (1) denying recovery for both liquidated damages under the ADEA and for punitive damages under the TCHRA, (2) concluding that the non-economic damages cap of the TCHRA is constitutional, (3) awarding front pay from the date of the verdict instead of the date of the judgment, (4) denying pre-judgment interest, and (5) reducing attorneys' fees. Id. at 143-44.

Raytheon prevailed on its fourth and fifth points of error, and Miller did not prevail on any of his points of error. See generally id. Specifically, the Fifth Circuit held the past pension benefits must be treated as front pay and the self-serving testimony of Plaintiff and his wife was legally insufficient to support mental anguish damages. Id. at 146-47. Ultimately, the Fifth Circuit vacated the liquidated damages award for past pension benefits, vacated the mental anguish award, and remanded for reconsideration of the front pay award. Id. at 142. After the Fifth Circuit issued its opinion, Plaintiff filed an opposed motion to transfer consideration of appellate attorneys' fees to this Court. Order, Aug. 29, 2013, ECF No. 199. The Fifth Circuit granted the motion, and following remand, Plaintiff filed its motion for attorneys' fees in this Court (ECF No. 206).

Additionally, the Court required the parties to confer and file a joint status report with the Court addressing how the case should proceed on remand. See Order, Aug. 15, 2013, ECF No. 197. In their joint report, the parties disputed the propriety of post-remand discovery concerning the calculation of front pay. See Joint Status Report, Sept. 6, 2013, ECF No. 201. Ultimately, the Court denied Plaintiff's discovery request and ordered the parties to brief the issues raised in their joint report: (1) the calculation of front pay, (2) the discounting of pension benefits to present value, and (3) the calculation of interest.² See Order, Oct. 9, 2013, ECF No. 205. The Court will now address Plaintiff's motion for attorneys' fees and the parties' post-remand briefs in turn.

II. ATTORNEYS' FEES

A. Legal Standard

It is within the court's discretion to award attorneys' fees to a prevailing party for the appeal of an ADEA case. Weaver v. Amoco Prod. Co., 66 F.3d 85, 89 (5th Cir. 1995) (citing Hedrick v. Hercules, Inc., 658 F.2d 1088, 1097-98 (5th Cir.1981)); see also Tyler v. Union Oil Co. of Cal., 304 F.3d 379, 404 (5th Cir. 2002). Generally, a prevailing party is one who receives "some relief on the merits." Tyler, 304 F.3d at 404 (citing Farrar v. Hobby, 506 U.S. 103, 111 (1992)). On appeal, a party is a "prevailing party," even if they lose on certain issues, so long as their "losses are not of such magnitude as to deprive [the party] of prevailing party status." Bode v. United States, 919 F.2d 1044, 1052 (5th Cir. 1990) (quoting Leroy v. City of Hous., 906 F.2d 1068, 1082 n.24 (5th Cir.1990)) (internal quotation marks omitted).

The Fifth Circuit employs a two-step process when determining an award of attorneys' fees. Jimenez v. Wood Cnty., Tex., 621 F.3d 372, 379 (5th Cir. 2010) (citing Rutherford v. Harris Cnty., Tex., 197 F.3d 173, 192 (5th Cir. 1999)). The first step is the lodestar calculation, "which is equal to the number of hours reasonably expended multiplied by the prevailing hourly rate in the community for similar work." Id.; see also Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Black v. SettlePou, P.C., 732 F.3d 492, 502 (5th Cir. 2013). In evaluating the reasonableness of the number of hours expended, courts determine "whether the total hours claimed are reasonable [and] alsowhether particular hours claimed were reasonably expended." La. Power & Light Co. v. Kellstrom, 50 F.3d 319, 325 (5th Cir. 1995) (quoting Alberti v. Klevenhagen, 896 F.2d 927, 932 (5th Cir. 1990), modified on other grounds, 903 F.2d 352 (5th Cir. 1990)).

Any duplicative, excessive, or inadequately documented time should be excluded from the lodestar calculation. Jimenez, 621 F.3d at 379-80. In ascertaining the compensable time, courts determine the appropriate hourly rate based on the prevailing community standards for attorneys of similar experience in similar cases. McClain v. Lufkin Indus., Inc., 649 F.3d 374, 381 (5th Cir. 2011). The burden is on the applicant to establish the reasonableness of the award. See Dodge, 174 F. Supp. 2d at 508 (citing Riley v. City of Jackson, Miss., 99 F.3d 757, 760 (5th Cir. 1996); La. Power & Light Co., 50 F.3d at 324; In re Smith, 966 F.2d 973, 978 (5th Cir. 1992)).

After calculating the lodestar, the court may adjust the award based on the factors set out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir. 1974).³ See Jimenez, 621 F.3d at 380. To adjust the award, the district court must "articulate and clearly apply the Johnson criteria." Dodge, 174 F. Supp. 2d at 508; see also Jimenez, 621 F.3d at 380 (quoting Perdue, 559 U.S. at 558) (noting district courts must provide "a reasonably specific explanation for all aspects of a fee determination"). Applying these standards, the Court now considers Plaintiff's motion.

B. Analysis

Miller seeks $166,452 in attorneys' fees for services rendered on appeal and remand.⁴ See Pl.'s Reply Def.'s Obj. 10, ECF No. 218. Raytheon contends Miller is not entitled to attorneys' fees, and if the Court finds he is entitled to fees, the amount requested must be reduced. See generally Def.'s Obj. Pl.'s Mot. Att'ys' Fees & Costs, ECF No. 211. The Court will address each objection in turn.

1. Entitlement to Attorneys' Fees

Raytheon contends Miller is not entitled to attorneys' fees for the following reasons: (1) the Court lacks jurisdiction to award appellate attorneys' fees because Plaintiff did not make its request on appeal, (2) the Fifth Circuit's mandate did not provide for attorneys' fees, (3) Plaintiff was not the "prevailing party" on appeal, and (4) Plaintiff would receive an unfair windfall if allowed appellate attorneys' fees. See generally Def.'s Obj. Pl.'s Mot. Att'ys' Fees & Costs, ECF No. 211.

For its first contention, Raytheon cites two cases from the United States Court of Appeals for the Tenth Circuit. See Def.'s Obj. 3, ECF No. 211 (citing Flitton v. Primary Residential Mortg., Inc., 614 F.3d 1173, 1179-80 (10th Cir. 2010); Hoyt v. Robson Cos., Inc., 11 F.3d 983, 985 (10th Cir. 1993)). In Flitton, the Tenth Circuit addressed its "general rule" that a prevailing party seeking appellate fees must first make its request in the appellate court. 614 F.3d at 1179 ("Indeed, we concluded that a district court generally lacks jurisdiction to consider the propriety of appeal-relatedfees if the prevailing party does not first seek such fees on appeal."). Nevertheless, the Court is not bound by the Tenth Circuit's rule and finds Circuit Judge Gorsuch's partial concurrence and dissent in Flitton is the better approach:

Congress has directed the federal courts to calculate a fair award for the

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