West v. Potter, 12-5106
| Decision Date | 11 June 2013 |
| Docket Number | No. 12-5106,12-5106 |
| Parties | KEVIN D. WEST, APPELLANT v. JOHN E. POTTER, POSTMASTER GENERAL, U.S. POSTAL SERVICE, APPELLEE |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Teresa W. Murray argued the cause and filed the briefs for appellant.
Richard T. Seymour, Jonathan C. Puth, and Lenore C. Garon were on the brief of amici curiae Metropolitan Washington Employment Lawyers Association, et al. in support of appellant.
Rhonda C. Fields, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Ronald C. Machen Jr., U.S. Attorney, and R. Craig Lawrence and Alan Burch, Assistant U.S. Attorneys.
Before: TATEL, Circuit Judge, WILLIAMS and SENTELLE, Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge SENTELLE.
SENTELLE, Senior Circuit Judge: This case comes before us on Appellant Kevin D. West's appeal of the district court's order refusing to award him any compensation for delayed payment of attorney's fees after his successful Title VII lawsuit against his employer, the United States Postal Service. Although the district court had discretion not to compensate for delay, it applied the wrong legal standard in exercising that discretion. Accordingly, we vacate and remand for the district court to determine, under the correct legal standards, whether compensation for delay is appropriate and, if so, by what means.
West sued USPS, claiming racial discrimination, retaliation, and hostile work environment. On March 14, 2008, a jury returned a verdict in West's favor on some of the retaliation claims and awarded him $90,000 plus costs. West's attorney presumably knew when she took his case on that she would likely not receive any attorney's fees unless West eventually won, which meant that there would probably be a significant delay between the time she rendered legal services to West and the time that she finally received compensation for those services. Compensation received years after services are rendered is less valuable than the same dollar amount received promptly. Copeland v. Marshall, 641F.2d 880, 893 (D.C. Cir. 1980) (en banc) (). To compensate for this lost value caused by delayed payment, West's motion for attorney's fees requested that the district court base his fee award on his attorney's higher current rates instead of the rates she charged at the time legal services were rendered.
The district court referred the attorney's fees issue to a United States magistrate judge, who recommended that West's attorney's fees be calculated based on historic rates and that his recovery should be limited to 75% to reflect West's partial success on the merits. West objected to the magistrate judge's Report and Recommendation, but while it was pending, he also filed an emergency motion for interim attorney's fees. Ten days later, the district court adopted the magistrate judge's Report and Recommendation.
The district court granted West's emergency motion for interim attorney's fees in part. Although the parties still disputed the amount of fees due to West, the district court awarded immediate payment of the undisputed amount—$255,915 (later increased by $23,906 to correct a math error)—noting that under the circumstances, it was better to require "the payment of an amount that is not disputed as quickly as possible rather than to delay the resolution of the parties' dispute regarding interim fees at this time." It added that "there will be an opportunity to adjudicate the difference when a final attorneys' fee award is made." Order 1, n.1, Jan. 13, 2010, ECF No. 132.
On December 21, 2011, the parties filed a status report, which provided that "there are no outstanding issues whichneed to be resolved by the Court." The district court responded with an order "GRANT[ING] in part and DEN[YING] in part as directed in previous orders on the docket" West's motion for an award of attorney's fees. The order stated that "the parties have informed the court that there are no outstanding issues to be resolved in this case." Order, Jan. 1, 2012, ECF No. 176.
West moved for reconsideration, requesting that the district court allow the parties more time to finalize a stipulated settlement agreement. After the parties filed their stipulated settlement agreement, the district court issued a revised supplemental judgment, which explained:
The court retained jurisdiction of the case to resolve post-judgment issues related to equitable remedies and attorney's fees. On December 1, 2011, the court resolved the remaining equitable issues and directed the parties to confer regarding any pending disputes. Order [#169] at 15-16. The parties informed the court that there were no outstanding issues to be resolved in this case and the court entered a supplemental judgment on January 4, 2011 [Docket No. 176]. Although there does not appear to have been any impediment to timely filing a notice of appeal related to any pre-judgment attorney's fees issues, Plaintiff moved to vacate the supplemental judgment pending the filing of the present agreement regarding post-judgment attorney's fees issues [Docket No. 177; Filed January 20, 2012]. While this revised supplemental judgment is arguably unnecessary, IT IS HEREBY ORDERED as follows: (1) Plaintiff's Motion for Reconsideration [Docket No. 177] is GRANTED. (2) Plaintiff's Motion for an Award of Attorney's Fees [Docket No. 66] is GRANTED in partand DENIED in part as directed in previous orders on the docket. Any remaining portion of the Motion is DENIED as moot pursuant to the parties' agreement [Docket No. 178]. . . . This case shall remain closed.
Revised Supplemental J. 1, Feb. 10, 2012, ECF No. 179. West appealed.
As always, before proceeding to the merits of this case, we must assure ourselves that we have jurisdiction to consider them. The Postmaster argues that we lack jurisdiction because the district court has not yet set a final amount of attorney's fees to be awarded. See Gilda Marx, Inc. v. Wildwood Exercise, Inc., 85 F.3d 675, 677 (D.C. Cir. 1996) (). The district court specified that its interim attorney's fees award was non-final, and it never awarded any other amount of fees. Therefore, the argument goes, no final amount of attorney's fees was ever set in the court below. While appellee's argument is certainly not frivolous, we ultimately disagree.
Before issuing its revised supplemental judgment, the district court asked both parties whether any issues remained to be resolved, and both responded that none remained. In its revised supplemental judgment, the district court reentered the interim attorney's fees award as a final award of fees. It even added a sentence denying any remaining portion of West's motion for attorney's fees as moot and declared the case closed. Accordingly, the interim attorney's fees awardbecame final after the district court issued its revised supplemental judgment, and we have jurisdiction to hear this case.
Given West's representation to the district court that the interim fees award resolved all outstanding issues pertaining to attorney's fees, West may well have waived any argument regarding the proper computation of fees at historic rates, an issue arguably left open by the interim fees award. See Order 1, n.1, Jan. 13, 2010, ECF No. 132 (). But West's challenge on appeal is instead to the use of historic rather than current rates to calculate the attorney's fee award, an issue resolved by the district court's adoption of the magistrate judge's Report and Recommendation and not reopened by the interim fees award.
Proceeding to the merits, West argues that the district court was required to award him attorney's fees calculated at current rates to compensate him for delayed payment. The Postmaster argues that the district court did not abuse its discretion by refusing to award the current rates because West failed to meet his burden to show that his request resulted in a reasonable attorney's fees award. We review attorney's fees awards for abuse of discretion, Covington v. District of Columbia, 57 F.3d 1101, 1110 (D.C. Cir. 1995), but we review questions of law decided in the process of determining an award de novo, Almerfedi v. Obama, 654 F.3d 1, 5 (D.C. Cir. 2011).
The reasoning supporting the district court's decision to use historic rates and to provide no compensation for delayedpayment is found in the magistrate judge's Report and Recommendation that the district court accepted before entering the interim fee award. The magistrate judge refused to compensate for delay not because he believed current rates to be an inappropriate means of compensation and the only one West requested. Instead, he concluded that because the delay was neither "unusually long" for a Title VII case nor occasioned by "dilatory or stalling conduct" on the part of the defendant, no compensation for delay was appropriate. Report and Recommendation 16, Oct. 13, 2009, ECF No. 110. In so concluding, the magistrate judge applied the wrong standard for evaluating whether compensation for delayed payment of attorney's fees is necessary.
Title VII provides that prevailing parties may recover a "reasonable attorney's fee as part of the costs." 42 U.S.C. § 2000e-5(k). A reasonable fee is one that is "adequate to attract competent counsel, but that...
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