Calvin Roderick Carmichael v. Birmingham Saw Works

814 F.2d 590, 1987 U.S. App. LEXIS 4805, 43 Empl. Prac. Dec. (CCH) 37,015

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 13, 1987
• Docket: 85-7665
• Status: Published

Opinions

PER CURIAM:

In this Title VII employment discrimination case, we review the district court’s ruling on attorney’s fees. Finding that the district court failed to follow the mandate of this court in a prior appeal, we vacate the judgment and remand the case.

Procedural History

This is the second appeal arising out of a claim of racial discrimination filed by Calvin Roderick Carmichael against Birmingham Saw Works (Birmingham Saw). Carmichael, a black man, filed this action on February 14, 1979, alleging disparate treatment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17 (1976 and Supp. V. 1981). The district court rejected Carmichael’s claim of discrimination in hiring and promotions, but found that Birmingham Saw violated Title VII by starting him at a lower wage than that paid to white beginning employees. After a hearing, the district court awarded Carmichael $1,211.50, plus interest, in damages, and $5,400 in attorney’s fees. On appeal, we remanded for further proceedings on the hiring and promotion claims. Carmichael v. Birmingham Saw Works, 738 F.2d 1126 (11th Cir.1984) (Carmichael I). We also concluded that remand was appropriate on the attorney’s fee issue because the district court failed to identify the hours it disallowed and failed to explain why it disallowed them. Carmichael I at 1139.

After retrial, the district court ruled for Carmichael on the remanded claims and entered a judgment awarding him $20,-513.69 in backpay. Carmichael filed a motion for attorney’s fees and expenses, and the district court set the matter for hearing before a United States Magistrate. The court also entered an order requiring that Carmichael set forth an itemized statement of fees and expenses within thirty days, and requiring that Birmingham Saw raise any objections to Carmichael’s statement within twenty days. Pursuant to the order, Carmichael timely filed an itemized statement of fees and expenses, but Birmingham Saw did not file an objection. At the hearing, three lawyers testified that they had examined the hours Carmichael’s attorneys expended in the case and found them to be reasonable. Birmingham Saw did not dispute their testimony. On the basis of this evidence, the magistrate found: (1) that the time and labor required to handle the case was not an issue because Carmichael presented a detailed affidavit and Birmingham Saw did not respond; (2) that Carmichael’s attorneys were exceptionally skilled in Title VII practice, and this skill should be a factor in determining the hourly rate; (3) that the hourly rate from 1979 through 1981 was $75 per hour, from 1982 through July, 1984, $90 per hour, from July, 1984, through March 30, 1985, $100 per hour, and from March 30, 1985, to the present, $110 per hour; (4) that the fee was contingent; (5) that the base noncontingent fee should be enhanced due to delay; and (6) that excellent results were obtained. Based on these findings, the magistrate recommended an unenhanced lodestar amount of $25,834.¹ The magistrate recommended that the lodestar amount be enhanced to $31,042.40 due to the contingency arrangement and delay. The magistrate filed his Report and Recommendation on August 20, 1985; it provided that objections had to be filed within ten days. No objection was filed. Notwithstanding Birmingham Saw’s failure to object to the magistrate’s report and recommendation, the district court reduced the recommended fee by 25-percent to $23,-282.25, and held that it found no basis for enhancing the award.

Discussion

On this appeal, Carmichael contends that the 25-percent reduction in compensable hours expended was improper because the district court failed to identify the hours disallowed and failed to explain why it disallowed them as this court mandated on the prior appeal. Carmichael also contends that the district court erred by refusing to enhance the award to account for delay. Birmingham Saw contends that the district court adequately explained its disallowance of hours and articulated legitimate reasons for refusing to enhance the award.

A. Reduction in Compensable Hours Expended

On the first appeal in this case, we vacated and remanded because we found that the district court failed to adequately explain how it evaluated the factors it was required to consider. In remanding the case to the district court for further proceedings, we noted that, without such explanations, the district court’s findings were impossible to review:

The district court is of course empowered to disallow hours it finds excessive or unnecessary. But ‘[i]f the court finds the number of hours excessive, it should identify the hours disallowed and explain why it is disallowing them.’ Fitzpatrick v. Internal Revenue Service, 11 Cir. 1982, 665 F.2d 327, 332. Otherwise, we have no way of reviewing the decision. Johnson v. University College, 11 Cir. 1983, 706 F.2d 1205, 1207-08, cert. denied, 1983, 464 U.S. 994, 104 S.Ct. 489, 78 L.Ed.2d 684.

Carmichael at 1137.²

The district court acknowledged its understanding of our directions to identify the hours disallowed; it refused to do so because, in its view, such a “burden” was “impracticable.” After specifically identifying some “questionable” hours, the district court concluded that “a degree of ex-cessiveness permeates all the claimed hours.” Accordingly, the district court reduced the magistrate’s recommended fee award by 25-percent, stating that its action was based on “common sense and twenty-three years as a lawyer and five and a half years as a judge.”

We find the district court’s “explanation” inadequate and its order insufficient; we are no more able to review the disallowance of attorney’s fees based on judicial intuition, than we are able to review an award based on nothing at all. Given the Fitzpatrick v. Internal Revenue Service, standard, we can seldom, if ever, countenance an across-the-board reduction as ordered by the district court in this case.

It is difficult to understand why the district court insisted on reducing the award in this case without adequate explanation when Birmingham Saw never contested the award — even when explicitly offered the opportunity to do so.³ As we stated in King v. McCord, 707 F.2d 466, 468 (11th Cir.1983), “A trial judge cannot substitute his own judgment for uncontradicted evidence, without explanation and record support.” (Citing Marable v. Walker, 704 F.2d 1219 (11th Cir.1983) (“this court has consistently required district courts to conduct evidentiary hearings [citation omitted] and to enter specific findings of fact and conclusions of law in rendering fee awards where disputes cannot be otherwise resolved.”))

Thus, we are compelled to vacate and remand once again. On remand, the district court shall enter an order adopting the magistrate’s fee award recommendation.

The appellant urges that we adjust the lodestar amount upward due to the delay in its payment. We decline to do so.

REVERSED and REMANDED

1 . The magistrate used the following matrix to arrive at the lodestar:

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2 . On the first appeal we remanded "reluctantly” because we felt Carmichael’s attorneys contributed to the district court’s deficiencies by failing to set forth a precise and explicit fee request. On remand, however, Carmichael's attorneys entered a detailed affidavit in support of attorney’s fees and meticulously itemized the hours expended. Thus, Carmichael, at least, has heeded our admonition to "produce a record of adequate detail to permit meaningful and efficient review.” Carmichael I at 1139.

3 . The district court disagreed with the magistrate’s conclusion that Birmingham Saw did not contest the award. At the conclusion of the hearing, Birmingham Saw’s attorney stated:

I would ask the court to temper your decision with reasonableness ... I have no idea that the court would award the total amount that Mr. Wiggins asks for because, as I say, I believe it’s outrageous____ I am sure the court understands the position of unsuccessful defendants in such cases as this where it is difficult and it is distasteful to contest an attorney’s fee application.

In our view, however, Birmingham Saw cannot be said to have "contested" the award based on this general statement. Contesting in this context entails putting on evidence to rebut the claimed entitlement to compensation.