Filed: January 23, 2014
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 12-2481 (3:11-cv-00646-REP-MHL)
EILEEN MCAFEE,
Plaintiff – Appellee,
v.
CHRISTINE M. BOCZAR,
Defendant – Appellant,
and
JOHN DOE 1; JOHN DOE 2; JOHN DOE 3,
Defendants.
No. 13-1088 (3:11-cv-00646-REP-MHL)
Defendants. No. 13-1356 (3:11-cv-00646-REP-MHL)
O R D E R
Upon consideration of the Motion to Amend or Correct
Opinion filed by the Defendant – Appellant, Christine M. Boczar,
and the Motion to Amend and Correct Opinion filed by the
Plaintiff – Appellee, Eileen McAfee, the Court grants the
motions, with modifications, and amends its opinion filed
December 12, 2013, as follows:
On page 3, section I.A., first line of text, the date
“December 26” is corrected to read “December 28.”
On page 5, lines 8-10, the sentence, “Boczar then
arrested McAfee on the warrant and transported her to the County
2 Sheriff’s Office.” is replaced with the sentence, “McAfee was
arrested on the warrant and transported to the County Sheriff’s
office.”
On page 7, line 10, the word “refuse[d]” is replaced
with “refuses.”
On page 7, lines 13-15, the text, “Boczar had
explained that she could locate the dog, though she did not have
the address where it lived” is replaced with “the latter had
explained that she could locate the house where the dog lived,
though she did not have the address.”
Entered at the direction of Judge King with the
concurrence of Judge Niemeyer and Judge Duncan.
For the Court
/s/ Patricia S. Connor Clerk
3 PUBLISHED
No. 12-2481
No. 13-1088
Defendants. No. 13-1356
Appeals from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge. (3:11-cv-00646-REP-MHL)
Argued: October 30, 2013 Decided: December 12, 2013
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Nos. 13-1356 and 13-1088 affirmed; No. 12-2481 vacated and remanded with instructions by published opinion. Judge King wrote the opinion, in which Judge Niemeyer and Judge Duncan joined.
ARGUED: Henry Keuling-Stout, KEULING-STOUT, PC, Big Stone Gap, Virginia, for Appellant. William H. Hurd, TROUTMAN SANDERS LLP, Richmond, Virginia, for Appellee. ON BRIEF: Michael R. Ward, MORRIS & MORRIS, PC, Richmond, Virginia, for Appellant. Stephen C. Piepgrass, TROUTMAN SANDERS LLP, Richmond, Virginia, for Appellee.
2 KING, Circuit Judge:
Defendant Christine Boczar, a deputy sheriff of Powhatan
County, Virginia, appeals the judgment of damages plus
attorney’s fees entered against her in the Eastern District of
Virginia in this 42 U.S.C. § 1983 proceeding. Boczar presents
two appellate issues: First, she contends that she is entitled
to qualified immunity such that a trial should not have been
conducted; and, second, she maintains that, even should the
jury’s verdict stand, the district court’s award of $322,340.50
in attorney’s fees to plaintiff Eileen McAfee is contrary to
law. As explained below, we reject Boczar’s qualified immunity
contention and affirm the verdict of damages totalling $2943.60.
We vacate the attorney’s fee award, however, and remand for an
award of $100,000, exclusive of costs.
I.
A.
On December 28, 2010, Eileen McAfee accompanied a friend to
a residence in Powhatan County, Virginia, to inspect a dog that
appeared to be in distress. 1 After securing permission from the
1 Insofar as they relate to the qualified immunity issue, we recite the facts in the light most favorable to McAfee. Henry v. Purnell, 501 F.3d 374, 377 (4th Cir. 2007). With respect to facts relating solely to the attorney’s fee award, we accept the facts — unless clearly wrong — as they were set forth by the (Continued) 3 owner, McAfee examined the dog and concluded that it lacked
appropriate shelter but was otherwise in good condition. McAfee
then bought the animal a new doghouse and, on January 7, 2011,
delivered it to the dog and its owner. While setting up the
doghouse, McAfee sought to feed the pet a treat. Unfortunately,
in its eagerness to eat the treat, the dog accidentally bit
McAfee’s hand, causing McAfee to seek medical treatment at a
local hospital. The hospital reported McAfee’s dog bite to the
animal control authorities in Powhatan County.
Deputy Boczar, an animal control officer with the Powhatan
County Sheriff’s Office, received notification of McAfee’s dog
bite and began an investigation. On January 10, 2011, she
inquired by telephone about the incident, asking McAfee where
the dog was housed. McAfee, who was unfamiliar with Powhatan
County, replied that she did not know the owner’s address but
could lead Boczar to the dog’s location. Boczar declined
McAfee’s offer and ended the conversation, which was apparently
the only exchange Boczar ever had with McAfee. Boczar
thereafter contacted two other persons, further seeking to
locate the dog. Both of those persons had spoken to McAfee
district court. See Plyler v. Evatt, 902 F.2d 273, 278 (4th Cir. 1990).
4 about the dog bite incident, but neither had sought to ascertain
from McAfee the location of the dog.
Predicated on these conversations, Boczar determined that
McAfee had refused to disclose to the authorities the location
of the dog, in violation of Virginia Code § 18.2-313.1, which
prohibits the withholding of information about possibly rabid
animals. As a result, on January 13, 2011, Boczar secured an
arrest warrant for McAfee from a state court magistrate. McAfee
was arrested on the warrant and transported to the County
Sheriff’s office. The magistrate thereafter released McAfee on
bond, and a one-day jury trial was conducted in magistrate court
on May 27, 2011. At its conclusion, McAfee was acquitted.
B.
On September 28, 2011, the underlying complaint was filed
in the Eastern District of Virginia, alleging that Boczar had
arrested McAfee without probable cause. The complaint made
three separate claims: first, a claim under 42 U.S.C. § 1983
for violation of McAfee’s Fourth Amendment rights (Count I);
second, a claim for malicious prosecution under state law (Count
II); and, third, a false imprisonment claim under state law
(Count III). In responding to McAfee’s complaint, Boczar moved
for summary judgment on the basis of qualified immunity, which
the court promptly denied. Boczar also sought the dismissal of
Count III under Rule 50 of the Federal Rules of Civil Procedure,
5 which the court granted. A jury trial was thereafter conducted
in Richmond on the allegations in the first two counts of the
complaint.
At the trial’s conclusion on July 6, 2012, the jury
returned a verdict for McAfee on the § 1983 claim and in favor
of Boczar on Count II. At trial, McAfee requested both
compensatory and punitive damages as “determined by the
evidence.” McAfee v. Boczar, 906 F. Supp. 2d 484, 488 (E.D. Va.
2012) (the “Opinion”). In closing argument to the jury, counsel
for McAfee summed up her claims thusly: “[M]oney can never
really compensate for what has been done here, but money is the
only remedy the law has to offer. So what is the right number
to compensate Ms. McAfee? Is it $50,000? Is it $500,000?
Something else? Is it something more? You decide.” J.A. 339. 2
The jury verdict found that McAfee was entitled to recover
$2943.60 in stipulated out-of-pocket expenses relating to her
state court defense, which the jury awarded on her § 1983 claim.
The jury declined to otherwise award McAfee additional
compensatory or any punitive damages.
2 Our citations herein to “J.A. __” refer to the contents of the Joint Appendix filed by the parties in this appeal. As it pertains to the issues herein, the published Opinion addressed and disposed of McAfee’s § 1988 fee petition without revisiting the district court’s decision to deny Boczar qualified immunity.
6 After the jury returned its verdict, Boczar made a renewed
motion for qualified immunity on the § 1983 claim. The district
court again denied the motion, explaining that Boczar’s conduct
in arresting McAfee lacked probable cause and “fails to meet the
test of objective reasonableness” required for the protection of
qualified immunity. McAfee v. Boczar, No. 3:11-cv-00646, 2012
WL 3525619, at *2 (E.D. Va. Aug. 15, 2012). In so ruling, the
court focused on Boczar having secured McAfee’s arrest warrant
on the basis of false statements. Indeed, Boczar represented to
the magistrate that McAfee “refuses” to give any information
about the dog’s whereabouts. Id. at *3. At trial, however, it
was established that this statement was untrue. Boczar
testified that, in her only conversation with McAfee, the latter
had explained that she could locate the house where the dog
lived, though she did not have the address. Neither of the
other two persons Boczar interviewed about the dog bite incident
told Boczar that McAfee had refused to give the location of the
dog. As a result, the court concluded that Boczar lied to the
magistrate to secure the arrest warrant, and that such conduct
“does not give rise to qualified immunity.” Id.
After the court accepted the verdict and entered judgment
thereon, McAfee filed a petition pursuant to 42 U.S.C. § 1988,
seeking a total of $365,027 in attorney fees, plus $10,305.51 in
costs (the “Fee Petition”). Though acceding to the full amount
7 of the documented costs, Boczar complained that the requested
fees were unreasonable and countered with a fee proposal
awarding $15,000. The district court then referred the Fee
Petition to a federal magistrate judge for settlement
negotiations. A settlement conference was conducted on
September 19, 2012, but the parties were unable to reach an
accord. The magistrate judge reported to the district court
that the state’s Division of Risk Management, which was
responsible for the damages award, had refused to negotiate in
good faith.
Because the settlement negotiations failed, the district
court independently evaluated the Fee Petition to determine
whether the request was reasonable under 42 U.S.C. § 1988, which
provides that “the court, in its discretion, may allow the
prevailing party, other than the United States, a reasonable
attorney’s fee” with respect to a claim, inter alia, made
pursuant to § 1983. Applying the familiar “lodestar” method,
the court granted the Fee Petition in part. By its Opinion, the
court determined that the hourly rates of McAfee’s lawyers were
reasonable and that, applying a ten percent reduction in the
hours logged to account for “block billing,” the amount of time
devoted to the case by counsel was also reasonable. As a
result, the court awarded McAfee $322,340.50 in attorney’s fees,
8 plus the $10,305.51 in agreed costs. See McAfee, 906 F. Supp.
2d at 505.
Boczar has timely appealed, challenging the district
court’s denial of qualified immunity and its related decision to
conduct a trial, and also seeking to vacate the attorney’s fee
award. We possess jurisdiction pursuant to 28 U.S.C. § 1291. 3
II.
McAfee alleged that Boczar violated her Fourth Amendment
rights by subjecting her to arrest without probable cause. In
seeking relief from McAfee’s allegations of liability pursuant
to 42 U.S.C. § 1983, Boczar unsuccessfully asserted qualified
immunity. We review de novo a district court's denial of
3 Boczar filed three notices of appeal. The first (No. 12- 2481) was from the district court’s November 2, 2012 Order granting McAfee’s initial fee petition and awarding her $332,646.01. The second (No. 13-1088) was from the court’s Order filed December 19, 2012, disposing of McAfee’s supplemental petition in which she requested an additional $59,021.00 in attorney’s fees incurred post-trial, including fees for preparation of the initial fee petition. The court granted the supplemental petition, but, after substantial reductions in the amount claimed, awarded only $12,628. The supplemental award has gone virtually unchallenged here, and we therefore affirm it. The third notice of appeal (No. 13-1356) was from the court’s judgment of February 22, 2013, awarding McAfee $2943.60 in damages. The court had delayed its entry of judgment pending final resolution of Boczar’s renewed qualified immunity defense.
9 qualified immunity. Merchant v. Bauer, 677 F.3d 656, 661 (4th
Cir. 2012). 4
In this case, Boczar invoked qualified immunity in the
district court prior to trial by way of a summary judgment
request. In some circuits, a defendant’s failure to follow the
procedures set forth in Rule 50 — beginning with a Rule 50(a)
motion and then renewing the contention under Rule 50(b) —
constitutes a waiver of the qualified immunity claim. See,
e.g., Parker v. Gerrish, 547 F.3d 1, 12 (1st Cir. 2008) (“[W]e
have held that even if a defendant raises qualified immunity at
summary judgment, the issue is waived on appeal if not pressed
in a Rule 50(a) motion.”); Sykes v. Anderson, 625 F.3d 294, 304
(9th Cir. 2010) (“The Defendants' failure to make a pre-verdict
motion for judgment as a matter of law under Rule 50(a) on the
grounds of qualified immunity precluded them from making a post-
4 Boczar has proceeded with her qualified immunity argument in an arguably unconventional manner. She first asserted qualified immunity in a motion for summary judgment under Rule 56. After the district court denied the motion, McAfee’s case proceeded to trial. Boczar did not raise qualified immunity again until after the jury verdict. Although a post-verdict motion for judgment as a matter of law is acceptable under Rule 50(b), it is usually preceded by one or more motions under Rule 50(a), typically made at the close of the plaintiff’s case-in- chief and again after all the evidence has been presented. See Fed. R. Civ. P. 50(a) (authorizing a party to seek judgment as a matter of law at any time before the case is submitted to the jury). A party is permitted to renew a Rule 50(a) motion after trial. See Fed. R. Civ. P. 50(b).
10 verdict motion under Rule 50(b) on that ground.”). Here,
however, we need not decide whether Boczar’s unusual approach
has worked a waiver of qualified immunity, because we are amply
satisfied that no such immunity was warranted.
Qualified immunity serves to protect a government official
from liability for civil damages unless the facts alleged show a
violation of a clearly established constitutional right.
Merchant, 677 F.3d at 662. Here, McAfee asserts her right under
the Fourth Amendment to be free from arrest absent probable
cause to believe that she had committed a crime. We have
consistently explained that probable cause has been shown “when
the facts and circumstances within an officer’s knowledge — or
of which he possesses reasonably trustworthy information — are
sufficient in themselves to convince a person of reasonable
caution that an offense has been or is being committed.”
Wadkins v. Arnold, 214 F.3d 535, 539 (4th Cir. 2000).
In this situation, it is clear that Boczar lacked
sufficient knowledge about McAfee’s dog bite to reasonably
believe that McAfee contravened Virginia law. Boczar had
interviewed only three persons, and none had suggested that
McAfee was refusing to disclose the dog’s location. With such
limited knowledge, a law officer of reasonable caution would not
believe that McAfee had violated § 18.2-313.1. Indeed, that
Boczar made false statements to the state magistrate in seeking
11 McAfee’s arrest suggests that Boczar understood that the
evidence failed the probable cause standard.
By securing a warrant that lacked adequate evidentiary
support, Boczar infringed McAfee’s Fourth Amendment right to be
free from capricious arrest. And this constitutional right is
clearly established. See Miller v. Prince George's Cnty., 475
F.3d 621, 627 (4th Cir. 2007) (“Unquestionably, [t]he Fourth
Amendment prohibits law enforcement officers from making
unreasonable seizures, and seizure of an individual effected
without probable cause is unreasonable.” (internal quotation
marks omitted)). Therefore, Boczar cannot shield herself from
damages liability by invoking qualified immunity.
The more difficult issue in this appeal is whether the
district court’s § 1988 attorney’s fee award is “reasonable.”
The threshold requirement for such an award is, of course, that
the § 1983 plaintiff be a “prevailing party.” Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983). The designation of a party
as “prevailing” is a legal question that we review de novo. See
Grissom v. The Mills Corp., 549 F.3d 313, 318 (4th Cir. 2008).
For purposes of § 1988, “a party in whose favor a judgment is
rendered, regardless of the amount of damages awarded,” is the
prevailing party. Id. More specifically, a party has prevailed
if there has been a “material alteration of the legal
12 relationship of the parties,” and there is a “judicial
imprimatur on the change.” Id.
Neither party disputes the proposition that McAfee was the
prevailing party on the § 1983 claim. The jury’s verdict of
$2943.60 created a material alteration of the legal relationship
between McAfee and Boczar, and the district court’s power to
enforce that award provides the requisite judicial imprimatur.
Because McAfee is a prevailing party under § 1988, we must
determine whether the attorney’s fee award is a reasonable one.
C.
We review for abuse of discretion a district court’s award
of attorney’s fees, but, we will only reverse such an award if
the district court is “clearly wrong” or has committed an “error
of law.” Brodziak v. Runyon, 145 F.3d 194, 196 (4th Cir. 1998).
The proper calculation of an attorney’s fee award involves a
three-step process. First, the court must “determine the
lodestar figure by multiplying the number of reasonable hours
expended times a reasonable rate.” Robinson v. Equifax Info.
Servs., LLC, 560 F.3d 235, 243 (4th Cir. 2009). To ascertain
what is reasonable in terms of hours expended and the rate
charged, the court is bound to apply the factors set forth in
Johnson v. Georgia Highway Express Inc., 488 F.2d 714, 717–19
13 (5th Cir. 1974). 5 Id. at 243–44. Next, the court must “subtract
fees for hours spent on unsuccessful claims unrelated to
successful ones.” Id. at 244. Finally, the court should award
“some percentage of the remaining amount, depending on the
degree of success enjoyed by the plaintiff.” Id. Although the
district court in this case adequately performed the first two
steps, it erred on the third. That is, it overstated McAfee’s
success. 6
5 Our Court has characterized the twelve Johnson factors as follows:
(1) The time and labor expended; (2) the novelty and difficulty of the questions raised; (3) the skill required to properly perform the legal services rendered; (4) the attorney’s opportunity costs in pressing the instant litigation; (5) the customary fee for like work; (6) the attorney’s expectations at the outset of the litigation; (7) the time limitations imposed by the client or circumstances; (8) the amount in controversy and the results obtained; (9) the experience, reputation, and ability of the attorney; (10) the undesirability of the case within the legal community in which the suit arose; (11) the nature and length of the professional relationship between attorney and client; and (12) attorneys’ fees awards in similar cases.
See Barber v. Kimbrell’s Inc., 577 F.2d 216, 226 n.28 (4th Cir. 1978) (adopting twelve factors for determining the reasonableness of attorney’s fees that Fifth Circuit identified in Johnson). 6 Boczar argues on appeal that McAfee secured only a “nominal” award from the jury, and so the district court should not have awarded an attorney’s fee at all. This contention fails, however, because the damages award, though small in dollar amount, is not nominal. An award of nominal damages signifies that a plaintiff has established a violation of his (Continued) 14 1.
The Supreme Court has indulged a “strong presumption” that
the lodestar number represents a reasonable attorney’s fee. The
Court recently explained that this presumption can only be
overcome “in those rare circumstances where the lodestar does
not adequately take into account a factor that may properly be
considered in determining a reasonable fee.” See Perdue v.
Kenny A. ex rel. Winn, 130 S. Ct. 1662, 1673 (2010). Consistent
with the prescribed methodology, the district court addressed
the attorney’s fee issue by calculating the lodestar number. In
so doing, the court relied on the Johnson factors to determine
the applicable multipliers.
The Opinion’s application of the Johnson factors warrants a
brief discussion. As the district court recognized, we have
reviewed attorney’s fee awards primarily by use of the lodestar
method, with “substantial reliance” on the Johnson factors,
“sometimes to inform the calculation of the lodestar, sometimes
to make upward or downward adjustments to it, and sometimes for
both purposes.” 906 F. Supp. 2d at 490. The Opinion explained,
right but has not proved actual loss. See Farrar v. Hobby, 506 U.S. 103, 112 (1992). Here, the damages awarded represented the “entirety of McAfee’s out-of-pocket expenses.” McAfee, 906 F. Supp. 3d at 503. As such, the jury’s award cannot be classified as nominal.
15 however, that unquestioning reliance on Johnson is not justified
in the post-Perdue world because that Supreme Court decision
“teaches so clearly that departures from the lodestar figure are
to occur rarely and only in extraordinary cases.” Id. at 491.
Moreover, as the Opinion relates, the Perdue Court emphasized
that “an enhancement may not be awarded based on a factor that
is subsumed in the lodestar calculation.” Id. (quoting Perdue,
130 S. Ct. at 1673). Accordingly, the court determined that its
consideration of certain of the Johnson factors was foreclosed
by the lodestar calculation. See id. at 490.
At the outset, the district court decided that the number
of hours reasonably expended by McAfee’s lawyers — the first
multiplier in the lodestar calculation — encompasses at least
three Johnson factors — Factor 1 (time and labor expended),
Factor 2 (novelty and difficulty of question raised), and Factor
7 (time limitations imposed by the client or circumstances).
See id. at 492. As such, those three factors did not warrant
further consideration in calculating the attorney’s fee award.
The court then explained that the reasonable hourly rate — the
second multiplier in the lodestar calculation — subsumes five
additional Johnson factors: Factor 3 (skill required to
properly perform legal services); Factor 4 (attorney’s
opportunity cost); Factor 5 (customary fee); Factor 6
(attorney’s expectations at outset of litigation); and Factor 9
16 (experience, reputation, and ability of attorney). See id. As
a result, according to the court, those five factors also
collapse into the lodestar calculation. Ultimately, pursuant to
the court’s lodestar analysis, Perdue reserved four Johnson
factors for use in adjusting the lodestar fee amount: Factor 8
(amount in controversy and results obtained); Factor 10
(undesirability of case within legal community); Factor 11
(nature and length of professional relationship between attorney
and client); and Factor 12 (attorneys’ fee awards in similar
cases). See id.
We have indeed recognized that, consistent with the
district court’s analysis, “to the extent that any of [the
Johnson factors] has already been incorporated into the lodestar
analysis, we do not consider [those factors] a second time.” E.
Associated Coal Corp. v. Dir., OWCP, 724 F.3d 561, 570 (4th Cir.
2013) (citing Perdue, 130 S. Ct. at 1673). We have never ruled,
however, that when certain Johnson factors have merged into the
lodestar calculation, they are not to be otherwise considered to
adjust the lodestar amount. Although some of our sister
circuits agree that any Johnson factor subsumed in the lodestar
calculation should in no other way affect the determination of
an attorney’s fee award, few have explicitly identified specific
17 factors to which such a principle might apply. 7 For example, the
Fifth Circuit has held that a bankruptcy court abused its
discretion in using four of the Johnson factors “to justify its
substantial upward departure from the lodestar” because the
lodestar amount already accounted for those factors. See Matter
of Fender, 12 F.3d 480, 488 (5th Cir. 1994). And the Second
Circuit recently held that a district court erred in adjusting
the initial lodestar figure on the basis of Johnson factors
already included. See Millea v. Metro-N. R.R. Co., 658 F.3d
154, 167–68 (2d Cir. 2011).
In any event, we need not further assess or identify which
of the Johnson factors might be subsumed by the lodestar
calculations. In its Perdue decision, the Supreme Court was
addressing the enhancement of a lodestar attorney’s fee. 130 S.
Ct. at 1673. In this case, however, the district court did not
enhance the lodestar fee calculation — it simply reduced that
7 At least three of our sister circuits have also evaluated the relationship between Perdue and Johnson. See, e.g., Black v. SettlePou, P.C., 732 F.3d 492, 502 (5th Cir. 2013) (“The lodestar may not be adjusted due to a Johnson factor that was already taken into account during the initial calculation of the lodestar.”); Millea v. Metro-N. R.R. Co., 658 F.3d 154, 167 (2d Cir. 2011) (“[A] court may not adjust the lodestar based on factors already included in the lodestar calculation itself because doing so effectively double-counts those factors.”); Anchondo v. Anderson, Crenshaw & Assocs., L.L.C., 616 F.3d 1098, 1103 (10th Cir. 2010) (determining that Perdue “appears to significantly marginalize the twelve-factor Johnson analysis”).
18 calculation by $42,600. Predicated on these distinctions, we
limit our analysis to ensuring that the court’s application of
the Johnson factors was a reasonable one and that it did not
inappropriately weigh any particular factor.
Returning to step one — calculation of the lodestar fee
amount — we will not disturb the district court’s determination
of the lodestar multipliers. We explain further below.
In her Fee Petition, McAfee requested an award for 996.7
hours of legal work by her lawyers. McAfee, 906 F. Supp. 2d at
496. The district court reduced the hours of her two lead
attorneys by ten percent each, because they had used a “block
billing” system (lumping tasks together in time entries rather
than making such entries task-by-task). Id. at 500. The court
also eliminated the hours recorded by the “client originator”
because his time overlapped that of the lead attorneys. Id. at
501. Neither of the parties disputes these calculations, and
they are not further addressed.
In determining whether the time expended by McAfee’s
lawyers was reasonable, the Opinion referred to Boczar’s
unwillingness to entertain settlement on the attorney’s fee
issues. See McAfee, 906 F. Supp. 2d at 502. The court observed
that failure to contemplate a settlement strategy “makes for
expensive litigation,” and the defendant must bear the
19 consequences. Id. at 501–02. Boczar asserts that the court, by
taking her settlement position into account, abused its
discretion and punished Boczar for her recalcitrance. Boczar’s
argument falls short in two respects. First, a district court
“has discretion to consider settlement negotiations in
determining the reasonableness of fees but it is not required to
do so.” Thomas v. Nat'l Football League Players Ass'n, 273 F.3d
1124, 1130 n.9 (D.C. Cir. 2001); see also Sands v. Runyon, 28
F.3d 1323, 1334 (2d Cir. 1994) (concluding that a district court
can consider settlement offers in making a fee award). Second,
although the court expressed disapproval of Boczar’s apparent
failure to seriously engage in settlement negotiations, the
court did not alter its lodestar calculations to reflect that
disapproval. The court simply observed that any prolonged
litigation caused by a failure to settle would be “subsumed” in
the time component of the lodestar calculation. McAfee, 906 F.
Supp. 2d at 502 n.17. In other words, the court’s assessment of
the settlement negotiations could not have had a measurable
impact on the lodestar calculation. In these circumstances, the
court did not abuse its discretion in calculating the hours
expended by McAfee’s lawyers.
McAfee's lead counsel charged an hourly rate of $585, and
his senior associate charged $365 per hour. McAfee, 906 F.
20 Supp. 2d at 496. As the fee applicant, McAfee bore the burden
of establishing the reasonableness of those hourly rates. See
Plyler v. Evatt, 902 F.2d 273, 277 (4th Cir. 1990). A fee
applicant is obliged to show that the requested hourly rates are
consistent with “the prevailing market rates in the relevant
community for the type of work for which [s]he seeks an award.”
Id. The evidence we have deemed competent to show prevailing
market rates includes “affidavits of other local lawyers who are
familiar both with the skills of the fee applicants and more
generally with the type of work in the relevant community.”
Robinson, 560 F.3d at 245.
Boczar contends that McAfee failed to provide the essential
evidence on the hourly rate issue. The opinion, however,
concluded that the affidavits of two experts were sufficient to
substantiate the hourly rates of McAfee’s lawyers, and so
“McAfee has more than met her burden of establishing the
reasonable hourly rate for her counsel.” McAfee, 906 F. Supp.
2d at 496. Although those rates would appear excessive to
almost any lay observer, and some members of the judiciary would
deem them exorbitant, the district court’s findings to the
contrary are entitled to our deference. As a result, we are
21 unable to disturb its finding that the requested hourly rates
are reasonable. 8
2.
After determining that the hours expended and the attendant
rates requested by a lawyer for a prevailing party are
reasonable, a court is obliged to “subtract fees for hours spent
on unsuccessful claims unrelated to the successful ones.”
Grissom, 549 F.3d at 321. Of the three counts alleged, McAfee
prevailed on solely her § 1983 claim, and then only with respect
to a single category of damages, that is, general damages
reimbursing McAfee for her out-of-pocket expenses. The other
two categories of damages McAfee sought in connection with her
§ 1983 claim — special damages plus punitive damages — were
wholly rejected. 9
8 We observe that the hourly rates of court-appointed counsel in federal criminal cases are substantially less than those being sought here. Compensation paid to appointed counsel for time expended in or out of court or before a magistrate judge may not exceed $125 per hour. See 7A Admin. Office of U.S. Courts, Guide to Judiciary Policy § 230.16(a) (2013). Furthermore, the maximums for representation of a criminal defendant in a federal felony case are $9700 for the trial court level and $6900 for the appeal. Id. § 230.23.20. Viewed from that perspective, McAfee’s lawyers may be said to have received a hefty premium for their legal services. 9 See Slaughter v. Valleydale Packers, Inc., of Bristol, 94 S.E.2d 260, 266 (Va. 1956) (reciting that “there are two general classes of compensatory damages . . . : (1) general damages, or those which the law presumes to be the natural, proximate, and necessary result of the [tort]; and (2) special damages, or (Continued) 22 By its Opinion, the district court agreed with McAfee’s
lawyers that a six percent reduction for prevailing on one of
three counts in the complaint was a reasonable reduction because
McAfee’s counsel “identified the work that was performed in
furtherance of the unsuccessful counts” and “deducted those
hours, on a line-by-line basis, from the work performed.”
McAfee, 906 F. Supp. 2d at 497. Moreover, the Opinion explained
that the three counts in the complaint involved a common core of
facts, and therefore “[m]uch of counsel’s time [was] devoted
generally to the litigation as a whole.” Id. at 502 (quoting
Hensley, 461 U.S. at 435). Reducing the number of hours
expended by six percent and multiplying it by the hourly rate,
the court calculated McAfee’s lodestar fee as $322,340.50.
We will not dispute the district court’s six percent
reduction to account for the commonality of effort expended on
unsuccessful Counts II and III. We are concerned, however, that
those which, although a natural and probable consequence thereof, are not assumed to be necessary or inevitable, and must be shown by allegation and proof” (citation and internal quotation marks omitted)). McAfee’s complaint and contentions at trial identified three categories of damages being sought under § 1983: (1) general compensatory damages for out-of-pocket expenses incurred in defending state criminal charges; (2) special compensatory damages for deprivation of liberty, humiliation and embarrassment, inconvenience, and mental anguish; and (3) punitive damages. See J.A. 28–29 & 338–39. The jury instructions conveyed these categories of potential damages to the jury. See id. at 353.
23 the court failed to properly consider McAfee’s failure to
receive an award on her § 1983 claim, except for her undisputed
out-of-pocket expenses. We will further explain those concerns.
3.
In the final step before making an attorney’s fee award
under § 1988, a district court must “consider the relationship
between the extent of success and the amount of the fee award.”
The court will reduce the award if “the relief, however
significant, is limited in comparison to the scope of the
litigation as a whole.” Hensley, 461 U.S. at 439–40. Indeed,
the Supreme Court has recognized that the extent of a
plaintiff’s success is “the most critical factor” in determining
a reasonable attorney’s fee under 42 U.S.C. § 1988. Id. at 436.
What the court must ask is whether “the plaintiff achieve[d] a
level of success that makes the hours reasonably expended a
satisfactory basis for making a fee award.” Id. at 434.
Although McAfee’s success in recovering her general out-of-
pocket expenses must be accorded respect, it does not justify a
fee award of over $300,000 — approximately 109 times the verdict
— when McAfee’s failure to recover any special compensatory
damages, or any punitive damages at all, is taken into account.
Though Congress intended § 1988 fee awards to be “adequate to
attract competent counsel,” it also wanted to avoid “produc[ing]
windfalls to attorneys.” City of Riverside v. Rivera, 477 U.S.
24 561, 580 (1986). The district court’s erroneous view of
McAfee’s success — best illustrated by comparing McAfee’s lofty
expectations with the jury’s paltry damages award — produced an
excessive fee award that would, in our view, constitute a
windfall.
We have recognized that, “[w]hen considering the extent of
the relief obtained, we must compare the amount of damages
sought to the amount awarded.” Mercer v. Duke Univ., 401 F.3d
199, 204 (4th Cir. 2005). If a § 1983 plaintiff achieves only
part of the success she sought, the lodestar amount may be
excessive. See Farrar v. Hobby, 506 U.S. 103, 114 (1992). For
example, in Farrar, the plaintiffs sought $17 million in
compensatory damages, but the jury awarded only the meager sum
of one dollar. Id. Because the district court failed to
compare the plaintiff’s damages request with the nominal jury
verdict, the Court reversed a fee award of $280,000. Id. at
115–16. In her concurrence, Justice O’Connor elaborated: “[A]
substantial difference between the judgment recovered and the
recovery sought suggests that the victory is in fact purely
technical.” Id. at 121 (O’Connor, J., concurring) (emphasis
added). In Farrar, the plaintiff “asked for a bundle” ($17
million) and “got a pittance” ($1). Id. at 120. As such, the
25 Court ruled that any award of attorney’s fees was unjustified.
Id. at 116.
To accurately gauge McAfee’s success, the district court,
in accordance with Mercer and Farrar, should have compared what
she sought with what was awarded. Although McAfee downplays her
attempts to recover anything beyond her out-of-pocket expenses,
the record below suggests her pursuit of a bigger payday was
sincere, even pointed. Indeed, McAfee conceded at trial that
“[t]here are out-of-pocket expenses[, b]ut that’s not what this
case is really about.” J.A. 338. In particular, McAfee
requested special compensatory damages for “deprivation of
liberty,” “great inconvenience,” “great insult and humiliation,”
and “mental anguish.” Id. at 338–39. Counsel for McAfee
rhetorically inquired of the jury, “What is the right number to
compensate Ms. McAfee? Is it $50,000? Is it $500,000?
Something else? Is it something more?” Id. at 339 (emphasis
added). McAfee’s arrest, according to her lawyers, caused her
to lose weight and forgo sleeping, diminishing her energy. See
id. McAfee’s lawyers therefore strongly encouraged the jury to
compensate her for these special injuries. See id. In the face
of McAfee’s effort to secure a damages verdict of $500,000 or
even “something more,” the jury awarded only $2943.60.
It is also important to our analysis that McAfee strongly
advocated for a punitive damages award. At trial, McAfee’s
26 lawyer supported the effort by stressing that “deprivation of
[her] liberty” calls for “some punishment upon the wrongdoer.”
J.A. 338–39 (emphasis added). And the jury fully understood
that it could award punitive damages, for both punishment and
deterrence. See J.A. 355–56. But, as Justice Powell explained
in a § 1988 setting, “[w]here recovery of private damages is the
purpose of a civil rights litigation, a district court, in
fixing fees, is obligated to give primary consideration to the
amount of damages awarded as compared to the amount sought.”
Rivera, 477 U.S. at 585 (Powell, J., concurring). Put simply,
the jury verdict was puritanically modest, and the attorney’s
fee award fails to reflect that reality.
In justifying its award of attorney’s fees, the Opinion
accorded great weight to the deterrent effect of the judgment
and the verdict’s reaffirmation of McAfee’s Fourth Amendment
rights. See McAfee, 906 F. Supp. 2d at 505. According to the
Opinion, the verdict “vindicated important civil and
constitutional rights that cannot be valued solely in monetary
terms.” Id. at 503 (quoting Rivera, 477 U.S. at 574). In so
ruling, the court explained that “the hours expended were
reasonable and necessary to vindicate, for McAfee and other
citizens of Virginia, a most important right secured by the
Fourth Amendment of the United States Constitution.” Id.
27 The jury’s forbearance of a punitive damages award,
however, reveals that deterrence and vindication may not be so
important here. The point of punitive relief is to “punish what
has occurred and to deter its repetition.” Pac. Mut. Life Ins.
Co. v. Haslip, 499 U.S. 1, 21 (1991). Because the jury did not
approve punitive damages, the court’s reliance on deterrence and
vindication in its calculation of McAfee’s success is
substantially undermined. 10 Cf. Rivera, 477 U.S. at 595
(Rehnquist, J., dissenting) (“In short, this case shares none of
the special aspects of certain civil rights litigation [that]
would justify an award of attorney’s fees totally divorced from
the amount of damages awarded by the jury.”).
The Supreme Court has rejected the proposition that a
§ 1988 fee award must invariably be proportionate to the amount
of damages a civil rights plaintiff actually recovers. See
Rivera, 477 U.S. at 574. In Rivera, the Court affirmed an
attorney’s fee award of $245,456, which was slightly in excess
10 In Lewis v. Kendrick, 944 F.2d 949 (1st Cir. 1991), the plaintiff sought $300,000 in damages and only recovered $1000. Id. at 951. The plaintiff initially requested $132,778 in attorney’s fees, id. at 951 n.1, of which the district court awarded $49,685.90. Id. at 951. The court of appeals rejected the fee award, concluding that “[t]o turn a single wrongful arrest into a half year’s work, and seek payment therefor, with costs, amounting to 140 times the worth of the injury, is, to use a benign word, inexcusable.” Id. at 956. The Court conceded, however, that “had there been punitive damages found,” attorney’s fees “would have been another matter.” Id. at 954.
28 of seven times the plaintiff’s recovery of compensatory and
punitive damages, amounting to $33,350. See id. at 565-67. In
this case, however, we cannot ignore the pronounced
disproportionality between the verdict for less than $3000, and
the fee award more than 100 times that amount. Such a disparity
may well be unprecedented in this Circuit, notwithstanding
Mercer, which affirmed an award of attorney’s fees amounting to
almost $350,000 on a verdict for nominal compensatory damages of
just $1. The plaintiff in Mercer, though, was also found
entitled to $2,000,000 in punitive damages, see 401 F.3d at 202,
rendering the fee award a fraction — not a multiple — of the
damages obtained. 11
Although a substantial disproportionality between a fee
award and a verdict, standing alone, may not justify a reduction
in attorney’s fees, a lack of litigation success will. In
short, the limited success achieved by McAfee — reflected by the
jury’s decision not to award anything for deprivation of
liberty, great inconvenience, great insult and humiliation, and
mental anguish, or make an award of punitive damages —
undermines the attorney’s fee award being appealed.
11 The punitive damages award in Mercer was later vacated on the basis of Barnes v. Gorman, 537 U.S. 181 (2002), because punitive damages are not legally available for private actions under Title IX. Mercer, 401 F.3d at 202.
29 D.
Because the district court overstated McAfee’s degree of
success, it erred in not making an attorney’s fee award that
would properly reflect her success in this case. Under such
circumstances, we typically would remand this case for further
work by the district court and the lawyers. We have also
recognized, however, that “[a] request for attorney’s fees
should not result in a ‘second major litigation.’” Rum Creek
Coal Sales, Inc. v. Caperton, 31 F.3d 169, 181 (4th Cir. 1994)
(citing Hensley, 461 U.S. at 437 n.12). Consistent with Rum
Creek, and to avoid further expense and the nonessential use of
judicial resources associated with remand proceedings and other
appeals, we are satisfied to vacate the attorney’s fee award and
direct that it be reduced by approximately two-thirds, that is,
to $100,000, exclusive of costs. See id. (modifying award of
attorney’s fees “[t]o avoid further litigation expenses that
would follow a remand and the risk of yet a fourth appeal”).
III.
Pursuant to the foregoing, we affirm the judgment with
respect to the verdict, vacate the attorney’s fee award, and
30 direct that an attorney’s fee award of $100,000, exclusive of
costs, be entered by the district court on remand.
No. 13-1356 AFFIRMED No. 13-1088 AFFIRMED No. 12-2481 VACATED AND REMANDED WITH INSTRUCTIONS