Flitton v. Primary Residential Mortgage

Filing

[9786179] Affirmed.Terminated on the merits after oral hearing. Written, signed, published. Judges Tacha (authoring), McKay (Concurring in part and dissenting in part) and Gorsuch (concurring in part and dissenting in part). Mandate to issue. [09-4108, 09-4120]

Flitton v. Primary Residential Mortgage

Case: 09-4108

Document: 01018471943

FILED Date Filed: 08/05/2010 Page: 1

Doc. 0

U n i t e d States Court of Appeals T e n t h Circuit

A u g u s t 5, 2010
PUBLISH U N I T E D STATES COURT OF APPEALS T E N T H CIRCUIT
E l i s a b e t h A. Shumaker C l e r k of Court

Y V O N N E FLITTON, Plaintiff-CounterD e f e n d a n t - Appellee/ C r o s s - Appellant, v. P R I M A R Y RESIDENTIAL M O R T G A G E , INC., Defendant-CounterC l a i ma n t - Appellant/ C r o s s - Appellee.

N o . 09-4108 & 09-4120

A P P E A L FROM THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF UTAH ( D . Ct. No. 2:03-CV-00481-DAK) D a r r y l J. Lee (Richard J. Armstrong, with him on the briefs), Wood Crapo, LLC, S a l t Lake City, Utah, appearing for Appellant. B l a k e S. Atkin (Joseph H. Pugsley, with him on the briefs), Atkin Law Offices, P . C . , Bountiful, Utah, appearing for Appellee. B e f o r e TACHA, MCKAY, and GORSUCH, Circuit Judges. T A C H A , Circuit Judge. D e f e n d a n t - a p p e l l a n t Primary Residential Mortgage, Inc. ("PRMI") appeals

Dockets.Justia.com

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f r o m the district court's order awarding plaintiff-appellee Yvonne Flitton $ 3 6 7 , 6 8 9 . 0 0 in attorney's fees as a prevailing party in a Title VII lawsuit. Ms. F l i t t o n cross-appeals from the same order, challenging the district court's c o n c l u s i o n that it lacked jurisdiction to award her appellate attorney's fees b e c a u s e she failed to first request such fees in this court. We have jurisdiction u n d e r 28 U.S.C. § 1291 and AFFIRM. I. BACKGROUND I n 2003, Ms. Flitton filed suit against PRMI alleging, inter alia, d i s c r i mi n a t o r y and retaliatory discharge in violation of Title VII, and seeking b o t h compensatory and punitive damages for these alleged violations. At the c l o s e of Ms. Flitton's case, the district court partially granted PRMI's motion for j u d g me n t as a matter of law ("JMOL") and dismissed Ms. Flitton's discrimination a n d punitive damages claims. The court, however, allowed Ms. Flitton's r e t a l i a t i o n claim to go to the jury, which returned a verdict in her favor and a w a r d e d her $50,000 in emotional distress damages. The district court then g r a n t e d PRMI's renewed motion for JMOL, vacated the jury's verdict, and e n t e r e d judgment in PRMI's favor on the retaliation claim. On appeal, this court reversed the district court's decisions, remanded the c a s e for a new trial on Ms. Flitton's discrimination and punitive damages claims, a n d reinstated the jury's verdict on Ms. Flitton's retaliation claim. Ms. Flitton d i d not ask, and has never asked, this court to award her appellate attorney's fees.
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O n remand, the second trial was divided into a jury trial portion for Ms. F l i t t o n ' s discrimination and punitive damages claims and a bench trial portion to d e t e r mi n e whether she was entitled to, and the amount of, front pay and back pay d a ma g e s on her retaliation claim. The jury found in favor of PRMI on Ms. F l i t t o n ' s discrimination and punitive damages claims, and the district court a w a r d e d her $354,703.05 in back pay based on the first jury's verdict in her favor. Ms. Flitton then sought attorney's fees for her counsel's work in the first t r i a l , the appeal to this court, and the second trial. After conducting a thorough r e v i e w of the parties' submissions and arguments relating to Ms. Flitton's fees, t h e district court ultimately awarded her $367,689.00 in fees. In explaining the f e e amount, the district court rejected PRMI's contention that Ms. Flitton was not e n t i t l e d to any fees related to the second trial, or, in the alternative, that the fee a mo u n t should be reduced to reflect Ms. Flitton's "limited" success on her claims. The court also rejected Ms. Flitton's argument that she was entitled to appellate f e e s , instead concluding that it lacked jurisdiction to order such an award because M s . Flitton had never requested fees from this court. Finally, in calculating the p r e c i s e amount of the fee, the court refused to include fees that it found were u n r e a s o n a b l y high or excessive, or were for clerical work, background research, o r were supported by vague billing descriptions. PRMI now appeals the amount o f the award and Ms. Flitton cross-appeals, claiming the district court erroneously
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c o n c l u d e d that it lacked jurisdiction to award her appellate fees. II. DISCUSSION In Title VII cases, a district court, "in its discretion, may allow the p r e v a i l i n g party . . . a reasonable attorney's fee." 42 U.S.C. § 2000e-5(k). Thus, t o obtain attorney's fees, "a claimant must prove two elements: (1) that the c l a i ma n t was the `prevailing party' in the proceeding; and (2) that the claimant's f e e request is `reasonable.'" Robinson v. City of Edmond, 160 F.3d 1275, 1280 ( 1 0 t h Cir. 1998). Here, PRMI does not contest Ms. Flitton's status as a prevailing p a r t y ; rather, it only challenges the reasonableness of the district court's fee a w a r d . Because the district court "is in a better position than an appellate court to d e t e r mi n e the amount of effort expended and the value of the attorney's services," w e review an attorney's fee award for abuse of discretion. Starrett v. Wadley, 8 7 6 F.2d 808, 825 (10th Cir. 1989). "The most useful starting point for determining the amount of a reasonable f e e is the number of hours reasonably expended on the litigation multiplied by a r e a s o n a b l e hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); see also R o b i n s o n , 160 F.3d at 1281 ("[A] court must begin by calculating the so-called ` l o d e s t a r amount' of a fee, . . . [which] is the product of the number of attorney h o u r s `reasonably expended' and a `reasonable hourly rate.'"). This calculation, h o w e v e r , does not end the district court's inquiry when, as in this case, the p r e v a i l i n g party succeeds on only some of her claims. Hensley, 461 U.S. at 434.
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I n d e e d , the Supreme Court has instructed that in such cases, two additional q u e s t i o n s must be considered: (1) whether the plaintiff's successful and u n s u c c e s s f u l claims were related; and (2) whether the plaintiff's overall level of s u c c e s s justifies a fee award based on the hours expended by plaintiff's counsel. Id. A. T h e District Court Did Not Abuse Its Discretion by Awarding Ms. Flitton F e e s for the Second Jury Trial P R M I first argues that the district court should not have awarded Ms. F l i t t o n any fees associated with her counsel's work on the second jury trial b e c a u s e that trial resulted in a "complete defense verdict," and the discrimination a n d punitive damages claims litigated therein are completely unrelated to Ms. F l i t t o n ' s successful retaliation claim. "Where the plaintiff has failed to prevail on a claim that is distinct in all respects from his successful claims, the hours spent o n the unsuccessful claim should be excluded in considering the amount of a r e a s o n a b l e fee." Id. at 440. If, however, a plaintiff presents multiple related c l a i ms , "failure on some claims should not preclude full recovery [of attorney's f e e s ] if [the] plaintiff achieves success on a significant, interrelated claim." Jane L . v. Bangerter, 61 F.3d 1505, 1512 (10th Cir. 1995). Indeed, "[w]here a lawsuit c o n s i s t s of related claims, a plaintiff who has won substantial relief should not h a v e his attorney's fee reduced simply because the district court did not adopt e a c h contention raised." Hensley, 461 U.S. at 440; see also Robinson, 160 F.3d at
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1 2 8 3 (recognizing that many civil rights suits involve related claims and holding t h a t "[i]n such cases, it is inappropriate for a district court to evaluate the i n d i v i d u a l claims as though they were discrete and severable"). In the context of f e e awards, we have held that claims are related if they are based on a common c o r e of facts or are based on related legal theories. Jane L., 61 F.3d at 1512. The district court concluded that Ms. Flitton's successful retaliation claim a n d her unsuccessful discrimination and punitive damages claims were i n t e r r e l a t e d . We agree. As the district court pointed out, in the second jury trial M s . Flitton pursued punitive damages for the retaliation claim on which she had o b t a i n e d a jury verdict in the first trial. In these circumstances, it is difficult to d i s t i n g u i s h between the time Ms. Flitton's attorneys spent on the retaliation claim g e n e r a l l y and the time they spent on her claim for punitive damages based on P R M I ' s unlawful retaliation. See Hensley, 461 U.S. at 435 ("Much of counsel's t i me will be devoted generally to the litigation as a whole, making it difficult to d i v i d e the hours expended on a claim-by-claim basis."). Furthermore, during the s e c o n d jury trial, Ms. Flitton alleged that her termination was discriminatory. This claim concerns a crucial underlying fact that was also addressed in Ms. F l i t t o n ' s successful retaliation claim--the reason for her termination. Thus, the u n s u c c e s s f u l claims raised by Ms. Flitton in the second jury trial were not distinct i n all respects from the successful claims she pursued in the first jury trial, and t h e district court did not abuse its discretion by refusing to exclude the fees
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a c c r u e d during the second jury trial from Ms. Flitton's ultimate fee award. B. T h e District Court Did Not Abuse Its Discretion by Refusing to Reduce Ms. F l i t t o n ' s Fee Award Based on Her Degree of Success P R M I also contends that the district court erred by not reducing Ms. F l i t t o n ' s fee award based on her degree of overall success in this lawsuit. The S u p r e me Court has instructed that in calculating a reasonable fee award, "the mo s t critical factor is the degree of success obtained." Id. at 436. Although " [ t ]h e r e is no precise rule or formula" for assessing the plaintiff's degree of s u c c e s s , "[a] reduced fee award is appropriate if the relief, however significant, is l i mi t e d in comparison to the scope of the litigation as a whole." Id. at 436, 440. PRMI contends that because Ms. Flitton succeeded on only one out of five c a u s e s of action listed in her initial complaint and received only $354,703.05 in t o t a l damages out of the $27,902,065.58 she sought, she obtained a limited degree o f overall success and her fee award should have been reduced accordingly. Indeed, PRMI repeatedly emphasizes that Ms. Flitton ultimately received only a b o u t one percent of the total damages she sought. We have rejected the mechanical approach to assessing a plaintiff's degree o f overall success that PRMI endorses. In Jane L., we reversed a district court's d e c i s i o n to reduce the lodestar by seventy-five percent based on the plaintiff's s u c c e s s on only two out of eight claims. Jane L., 61 F.3d at 1511; see also H e n s l e y , 461 U.S. at 435 n.11 ("We agree with the District Court's rejection of a
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ma t h e ma t i c a l approach comparing the total number of issues in the case with t h o s e actually prevailed upon.") (quotations omitted). There, we held that "the d i s t r i c t court must make a qualitative assessment to determine what less-thanp e r f e c t results are `excellent,' justifying full recovery, or to what extent p l a i n t i f f s ' `limited success' should effect a reduction in the lodestar." Jane L., 61 F . 3 d at 1511. H e r e , the district court rejected PRMI's request for a reduction of the fee a w a r d based on Ms. Flitton's level of success, concluding that Ms. Flitton " o b t a i n e d substantial success from the first jury trial," and that "she obtained a s u b s t a n t i a l amount of damages." Flitton v. Primary Residential Mortgage, Inc., N o . 2:03-CV-481-DAK, 2009 WL 13572006, at *5, *8 (D. Utah May 7, 2009). Although Ms. Flitton's ultimate award did not approach the amount of damages s h e sought, her award of over $350,000 in this Title VII suit was not i n c o n s e q u e n t i a l . See Hensley, 461 U.S. at 435 n.11 ("Nor is it necessarily s i g n i f i c a n t that a prevailing plaintiff did not receive all the relief requested."). Accordingly, the district court's assessment of her overall level of success was n o t an abuse of discretion. C. T h e District Court Did Not Abuse Its Discretion by Refusing to Reduce Ms. F l i t t o n ' s Fee Award Based on Her Attorneys' Billing Entries P R M I next argues that the district court erred by not reducing Ms. Flitton's f e e award based on her attorneys' allegedly vague and nondescript billing entries.
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" P l a i n t i f f s ' burden in an application for attorneys fees is to `prove and establish t h e reasonableness of each dollar, each hour, above zero.'" Jane L., 61 F.3d at 1 5 1 0 (quoting Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1210 (10th Cir. 1 9 8 6 ) ) . "Plaintiff's counsel, of course, is not required to record in great detail h o w each minute of his time was expended. But at least counsel should identify t h e general subject matter of his time expenditures." Hensley, 461 U.S. at 437 n . 1 2 . When examining the adequacy of an attorney's billing entries, we are p r i ma r i l y concerned with the district court's ability to evaluate the propriety of t h e fee request based on the specific billing entries. See Crumpacker v. Kan. D e p ' t of Human Res., 474 F.3d 747, 757 (10th Cir. 2007) ("The law does not r e q u i r e the district court to reduce its fee award where it finds no difficulty in e v a l u a t i n g the propriety of an attorney's billing."). Indeed, in Crumpacker, we a f f i r me d the district court's fee award, which included fees for six billing entries t h a t were entirely blacked out and unreadable, because "the district court s p e c i f i c a l l y found that the blacked out entries cause no problems in determining t h e validity or propriety of the work performed." Id. (quotations and alterations o mi t t e d ) . Here, the district court conducted a thorough review of Ms. Flitton's a t t o r n e y s ' billing entries and reduced the fee award based on the inadequacy of e l e v e n specific entries. Furthermore, the district court stated, "[w]hile the court d o e s not believe that the entries of Plaintiff's counsel are ideal, it finds most of
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t h e entries adequately descriptive for purposes of reviewing the fee application." F l i t t o n , 2009 WL 1357206, at *6. Accordingly, the district court concluded that i t was able to make a fair assessment of the reasonableness of Ms. Flitton's c l a i me d fees based on the majority of the billing entries she submitted, and it r e f u s e d to award her fees based on specific inadequate entries. After examining t h e allegedly vague and nondescript entries emphasized by PRMI, we conclude t h a t the district court did not abuse its discretion by refusing to further reduce Ms. F l i t t o n ' s fee award based on her attorneys' billing entries. D. T h e District Court Correctly Concluded that It Lacked Jurisdiction to A w a r d Ms. Flitton Appeal-Related Fees I n her cross-appeal, Ms. Flitton argues that the district court erred by c o n c l u d i n g that it lacked jurisdiction to award her appeal-related fees because she f a i l e d to first request those fees in this court. In Hoyt v. Robson Cos., Inc., 11 F . 3 d 983, 985 (10th Cir. 1993), we recognized that "an appellate court has d i s c r e t i o n to award attorney's fees on appeal." Accordingly, we established the g e n e r a l rule that in order for a prevailing party to obtain appeal-related fees, "an a p p l i c a t i o n for [such] fees must first be made to our court." Id. Indeed, we c o n c l u d e d that a district court generally lacks jurisdiction to consider the p r o p r i e t y of appeal-related fees if the prevailing party does not first seek such

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f e e s on appeal. 1 Id. In Crumpacker, we reaffirmed the Hoyt rule, stating that "appeal-related f e e s . . . must generally be awarded by us." 474 F.3d at 756. Nevertheless, we r e c o g n i z e d a narrow exception for interlocutory appeal-related fees in cases b r o u g h t under Title VII or other fee-shifting statutes. Id. Under these limited c i r c u ms t a n c e s , we held that "parties who prevail on interlocutory review in this c o u r t , and who subsequently become prevailing parties under Title VII or another f e e - s h i f t i n g provision at the conclusion of merits proceedings, are implicitly e n t i t l e d to reasonable attorneys' fees related to the interlocutory appeal." Id. Ms. Flitton asks us to extend Crumpacker beyond interlocutory appeals. She contends that, after Crumpacker, all prevailing parties under Title VII are e n t i t l e d , as a matter of law, to all appeal-related fees; therefore, requesting such f e e s from this court in the first instance is not necessary. We reject this broad r e a d i n g of Crumpacker. First, this extension of Crumpacker is inconsistent with W e respectfully cannot agree with the dissent's contention that Hoyt can s i mp l y be disregarded by this subsequent panel. In Hoyt, we noted that "[t]hough w e have addressed awards of appeal-related attorneys' fees pursuant to a u t h o r i z i n g statutes, we have not previously confronted the jurisdictional r e q u i r e me n t s applicable in applying such fees." 11 F.3d at 984 (emphasis added). Considering, for the first time in Hoyt, the jurisdictional requirements applicable i n applying for appellate fees, we went on to "hold that the district court did not h a v e jurisdiction to award appeal-related attorneys' fees in this case." Id. at 985 ( e mp h a s i s added). Regardless of the propriety of Hoyt's jurisdictional ruling, we a r e bound by that prior decision. See Crumpacker, 474 F.3d at 755­56 ( r e c o g n i z i n g that Hoyt is "the law of this circuit," and that "the rule of Hoyt binds u s " ) ; see also United States v. Walling, 936 F.2d 469, 472 (10th Cir. 1991) ("One p a n e l of the court cannot overrule circuit precedent.").
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t h e narrow language used in that case. Nowhere in Crumpacker did we state or s u g g e s t that its rule applies to cases other than those in which a party succeeds on i n t e r l o c u t o r y appeal and subsequently becomes a prevailing party. Those are not t h e circumstances of Ms. Flitton's case. Second, Ms. Flitton's reading of C r u m p a c k e r would effectively strip this court of its discretion to award appealr e l a t e d fees in all Title VII cases. That discretion, however, was the fundamental p r e mi s e on which the Hoyt rule was based, see Hoyt, 11 F.3d at 985 ("[I]n order f o r us to properly exercise our discretion, an application for appeal-related a t t o r n e y s ' fees must first be made to our court."), and Crumpacker did not (and c o u l d not) eviscerate it. See Crumpacker, 474 F.3d at 755­56 (recognizing that H o y t is "the law of this circuit," and that "the rule of Hoyt binds us"); see also U n i t e d States v. Walling, 936 F.2d 469, 472 (10th Cir. 1991) ("One panel of the c o u r t cannot overrule circuit precedent."). Accordingly, as we stated in C r u m p a c k e r , "[i]t is the law of this circuit that `absent an explicit statutory p r o v i s i o n , in order for us to properly exercise our discretion, an application for a p p e a l - r e l a t e d attorneys' fees must first be made to our court.'" Crumpacker, 474 F . 3 d at 755 (quoting Hoyt, 11 F.3d at 985) (alterations omitted). Ms. Flitton n e v e r requested appeal-related fees from this court during her prior appeal and s h e has not requested them at any point during this appeal. Therefore, the district c o u r t correctly concluded that it was without authority to grant such fees in the f i r s t instance.
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I I I . CONCLUSION F o r the foregoing reasons, we AFFIRM the decision of the district court.

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09-4108, 09-4120, Flitton v. Primary Residential Mortgage, Inc. M c K A Y , concurring in part and dissenting in part. I respectfully dissent from Section II.A of the majority opinion, in which t h e court holds that Ms. Flitton was appropriately awarded fees for the u n s u c c e s s f u l claims she raised in the second jury trial because these claims were i n t e r r e l a t e d to the successful claims she had pursued in the first jury trial. I d i s a g r e e with this analysis and therefore would reverse and remand for the district c o u r t to impose an award excluding fees accrued during Ms. Flitton's entirely u n s u c c e s s f u l second jury trial. A fee award in a Title VII case is anchored in prevailing party status, 42 U . S . C . § 2000e-5(k), which means that a plaintiff must succeed on at least some s i g n i f i c a n t claim for relief to be entitled to attorney fees. See Hensley v. E c k e r h a r t , 461 U.S. 424, 433 (1983). Where a plaintiff does not obtain success o n all of her claims, "[t]he extent of a plaintiff's success is a crucial factor that t h e district courts should consider carefully in determining the amount of fees to b e awarded," id. at 438 n.14, and "no fee may be awarded for services" on an u n s u c c e s s f u l claim that is distinctly different from the successful claims for r e l i e f , id. at 435. However, when a plaintiff achieves only partial success on i n t e r r e l a t e d claims, it would be unmanageable or unworkable to separate the hours s p e n t on successful and unsuccessful claims. See id. (holding that it may be i n a p p r o p r i a t e to limit a fee award where claims are interrelated because in such c a s e s it will be "difficult to divide the hours expended on a claim-by-claim

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b a s i s " ) . The courts have therefore developed the interrelatedness rule to cut the G o r d i a n knot, permitting fees to be awarded for the full time spent on the i n t e r r e l a t e d claims rather than requiring the difficult or even impossible task of s e p a r a t i n g the time spent on interrelated successful and unsuccessful claims. In the usual case, this interrelatedness rule is eminently sound. Where the t i me spent on interrelated claims is inherently separable, however, the application o f this rule strikes me as both unnecessary and inconsistent with the purpose b e h i n d the statutory provision for fees. I agree with the majority that the claims in this case are interrelated and, t h e r e f o r e , that Ms. Flitton should be compensated for all of the time her attorneys s p e n t preparing for the first trial, even the time spent on the claims that ultimately t u r n e d out to be unsuccessful. In preparing for the first trial, Ms. Flitton's a t t o r n e y s worked on interrelated successful and unsuccessful claims, and it would b e difficult to distinguish between the time spent on the successful retaliation c l a i m and the time spent on the unsuccessful punitive damages and discrimination c l a i ms . However, I am not persuaded that Ms. Flitton should be further c o mp e n s a t e d for the completely unsuccessful pursuit of her punitive damages and d i s c r i mi n a t i o n claims on remand. Following our decision on appeal, Ms. Flitton b e g a n what was, in effect, a second lawsuit on the remanded claims--an action in w h i c h she did not prevail. The fact that these claims were interrelated to another c l a i m on which she had previously succeeded in another proceeding is irrelevant, -2-

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i n my view, to the question of whether she should be awarded fees for the i n h e r e n t l y separable fees incurred during this unsuccessful proceeding. Under the c i r c u ms t a n c e s of this case, I would hold that the district court abused its d i s c r e t i o n by awarding fees for a proceeding in which Ms. Flitton was entirely unsuccessful. I concur with the remainder of the majority's opinion. I note in particular t h a t , although I find persuasive Judge Gorsuch's argument that the rule stated in H o y t would be more appropriately treated as a procedural rule rather than a j u r i s d i c t i o n a l barrier, I agree with Judge Tacha that we are not free to ignore our t r e a t me n t in Hoyt of this issue as a jurisdictional one. This issue may warrant f u r t h e r consideration by the en banc court, but this panel is currently bound by H o y t ' s holding that a district court lacks jurisdiction to award appellate fees in t h i s type of case.

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09-4108, 09-4120, Flitton v. Primary Residential Mortgage, Inc. G O R S U C H , J., concurring in part and dissenting in part.

I am in full agreement with the bulk of the court's thoughtful opinion. My d i s a g r e e me n t is confined to the holding in Section II.D, where the court affirms t h e district court's determination that it lacked jurisdiction over Ms. Flitton's r e q u e s t for appellate attorney fees. Respectfully, I would hold that the district c o u r t possessed jurisdiction over Ms. Flitton's fee request and so would reverse i t s judgment. Facts T h e critical facts are these. Ms. Flitton brought claims for discrimination a n d retaliation under Title VII. The district court granted judgment as a matter of l a w (JMOL) against Ms. Flitton on her discrimination claim before the conclusion o f trial but at the same time allowed her retaliation claim to go to the jury. After t h e jury found for Ms. Flitton and awarded $50,000 in damages on her retaliation c l a i m, the district court reversed course, however, and decided to grant JMOL a g a i n s t Ms. Flitton on that claim, too. Ms. Flitton appealed and we reversed the d i s t r i c t court's JMOL decisions on both the discrimination and retaliation claims. We also reversed its JMOL decision that she wasn't entitled to punitive damages a s a matter of law. But the upshot of our decision was hardly a final judgment; mu c h remained to be done on remand. On Ms. Flitton's discrimination claim, a j u r y still had to decide its merits (she eventually lost). On her retaliation claim,

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w e restored the $50,000 verdict she'd won but Ms. Flitton still had to pursue back a n d front pay questions (she eventually won an additional $304,703.05 in back p a y ) . And the question of punitive damages was revived and left for the jury to d e c i d e . When all these matters were finally said and done, Ms. Flitton sought a t t o r n e y fees as a prevailing party. The district court granted fees for work done b y her attorneys in that court, but it held that it lacked jurisdiction to award any f e e s associated with Ms. Flitton's appeal. The Jurisdictional Misnomer T h e court today agrees with and affirms the district court's jurisdictional h o l d i n g . But how can this be so? How did the district court lack jurisdiction to a w a r d fees associated with the appeal that led to the restoration of Ms. Flitton's c l a i ms and her eventual partial success on remand? The terms of Title VII don't a p p e a r to compel such a result. See 42 U.S.C. § 2000e-5(k) (instructing simply t h a t "the court, in its discretion, may allow the prevailing party . . . a reasonable a t t o r n e y ' s fee"). And, to make the assessment of a reasonable fee, courts t r a d i t i o n a l l y wait until the end of the case, when the dust has settled and they can s e n s i b l y assess the "results obtained" and the degree of success achieved by the p l a i n t i f f . Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). So where is it written t h a t a district court lacks jurisdiction to award fees, in the normal course at the c a s e ' s end, for the plaintiff's reasonable efforts in an intervening appeal that was c r u c i a l to the ultimate success she eventually obtained in the case? -2-

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T h e district court and this court submit that Hoyt v. Robson Cos., 11 F.3d 9 8 3 (10th Cir. 1993), laid down such a rule. But Hoyt merely held that, after w i n n i n g at trial and successfully defending that victory on appeal, the plaintiff s h o u l d seek fees associated with the appeal in this court rather than the district c o u r t . Id. at 984-85. There may be nothing wrong with such a rule as a matter of s o u n d judicial administration and this court's supervisory authority; indeed, at l e a s t the Eighth and Eleventh Circuits have adopted a variation of it in their local r u l e s . See Little Rock Sch. Dist. v. Arkansas, 127 F.3d 693, 696-97 (8th Cir. 1 9 9 7 ) ; Gray ex rel. Alexander v. Bostic, No. 08-15152, slip op. at 14-15 (11th C i r . Aug. 2, 2010). But such a claims processing rule "cannot and does not affect t h e jurisdiction of the district courts." Little Rock Sch. Dist., 127 F.3d at 696. The jurisdiction of the federal courts is governed by the articles of the C o n s t i t u t i o n and Acts of Congress, not by administrative claims processing rules. T o be sure, Hoyt uses the word "jurisdiction[al]" to describe the nature of i t s holding, though it does so in passing and without explanation. See 11 F.3d at 9 8 4 - 8 5 . And the excessively exuberant use of the word "jurisdiction" to mean ma n y things other than the absence of constitutional or statutory power to a d j u d i c a t e a matter is by now well known. See Steel Co. v. Citizens for a Better E n v ' t , 523 U.S. 83, 90 (1998) ("`Jurisdiction', it has been observed, is a word of ma n y , too many, meanings . . . ." (quotation marks omitted)); Rumsfeld v. Padilla, 5 4 2 U.S. 426, 434 n.7 (2004) ("The word `jurisdiction,' of course, is capable of -3-

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d i f f e r e n t interpretations."); Dartt v. Shell Oil Co., 539 F.2d 1256, 1260 (10th Cir. 1 9 7 6 ) (noting the "conceptional difficulties . . . caused by an overly broad usage o f the term `jurisdictional'"). Neither can the misuse of that term transform what a t most might be an administrative error into ultra vires conduct. We have p r e v i o u s l y recognized as much in this very context, holding that the failure to f o l l o w administrative rules governing fee applications may be error but not extraj u r i s d i c t i o n a l behavior. See Huffman v. Saul Holdings Ltd. P'ship, 262 F.3d 1 1 2 8 , 1133 (10th Cir. 2001) (holding "the district court lacked authority, not j u r i s d i c t i o n , to award appellate fees" already denied by this court (emphasis a d d e d ) ) ; see also Little Rock Sch. Dist., 127 F.3d at 697 (analyzing failure to f o l l o w administrative rule for abuse of discretion, not for lack of jurisdiction). From all this, it seems plain that, if any problem lurks here, it can't be a j u r i s d i c t i o n a l one. Congress's statute does not deprive the district court of a u t h o r i t y to issue an award of appellate fees. To the contrary, Title VII's very p o i n t is to entitle prevailing civil rights plaintiffs to their reasonable attorney f e e s . It is not for us to undo that legislative judgment by erecting new and d u b i o u s faux-jurisdictional hurdles to recovery. Because the district court erred i n holding itself without jurisdiction to award fees, I would reverse and r e s p e c t f u l l y cannot join Section II.D. of the majority's opinion today. From Jurisdiction to Claims Processing R e c o g n i z i n g that the district court's holding that it lacked jurisdiction is in -4-

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e r r o r , one might try to re-conceive its decision as resting on the claims processing r u l e that appellate fees should be awarded by the court of appeals, not the district c o u r t . Of course this isn't the basis of the district court's holding or the court's d e c i s i o n today. But even if it were, it would be insufficient to sustain the denial o f fees in this particular case. W h e n it comes to the questions whether and when a plaintiff may seek a p p e l l a t e fees from district courts, we've sent mixed messages. In Hoyt, the p l a i n t i f f won in the district court and successfully defended her judgment on a p p e a l . Because of this, everything needed to determine whether plaintiff q u a l i f i e d as a prevailing party as well as the degree of her success and whether s h e achieved success on all of her claims, the critical Hensley inquiries, was b e f o r e us. We were well equipped in these circumstances to deal with a fee r e q u e s t for work done in connection with the appeal and we held that, in these c i r c u ms t a n c e s , appellate fee award applications are best directed to us. Yet, in C r u m p a c k e r v. Kansas Department of Human Resources, 474 F.3d 747, 756 (10th C i r . 2007), we affirmed a district court's fee award that included fees associated w i t h the plaintiff's defense of an interlocutory appeal. We did so explaining that t h e appeal in question didn't come at the end of the case (as in Hoyt) but in the mi d d l e of things, before the case reached its end and before the Hensley inquiries ( w a s plaintiff a prevailing party? what degree of success did she achieve?) could b e completed, or even begun. In these circumstances, we held it was appropriate -5-

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f o r the district court to award appellate fees. Id. at 756. G i v e n the mixed messages we've sent about the propriety of district courts a w a r d i n g appellate fees, what is a plaintiff -- or a district court -- to do? Especially where, as here, the case falls somewhere in between Hoyt and C r u m p a c k e r ? Unlike Hoyt, the appeal in this case didn't come at the end of all t r i a l court proceedings, when all the information necessary to undertake the H e n s l e y inquiries was before us. In Ms. Flitton's appeal, there's simply no way w e could've awarded fees; too much remained to be done on remand before a n y o n e could know what degree of success she would ultimately obtain. But u n l i k e Crumpacker, the appeal in this case did resolve at least one Hensley q u e s t i o n : it made clear that Ms. Flitton was a prevailing party by reinstating the j u r y ' s verdict in her favor on the retaliation claim, even though the degree of her s u c c e s s couldn't be ascertained until after further proceedings on remand. No d o u b t , a great many other appeals from JMOL decisions -- or summary judgment, o r dismissals under Fed. R. Civ. P. 12(b) -- will fall in the cracks between Hoyt a n d Crumpacker, as this one does. Our mixed messages, then, leave a great many c a s e s in a legal limbo. W h i l e certain other circuits, like the Eighth and Eleventh, have adopted f o r ma l rules of court to alert potentially prevailing parties where to file their a t t o r n e y fee claims, we haven't. Perhaps we should. But in the absence of a clear c l a i ms processing rule or case law precedent controlling the plaintiffs' -6-

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c i r c u ms t a n c e s , we should not strain to deny fees. Congress has directed the f e d e r a l courts to calculate a fair award for the prevailing party in civil rights c a s e s . It would be a "procedural contortion," in defiance of that statutory ma n d a t e to deny a prevailing plaintiff her fees simply for failing to imagine in a d v a n c e what administrative claims processing rule we might adopt. Little Rock S c h . Dist., 127 F.3d at 697. If the plaintiff hasn't defied a clearly applicable rule o r precedent, she should not be denied the fees Congress has authorized. Unless w e afford litigants the benefit of clarity, they should receive the benefit of the doubt. Not only do we lack any precedent or rule requiring plaintiffs in Ms. F l i t t o n ' s circumstance to seek fees in the first instance from us. Neither is it at a l l clear why we should want to adopt such a claims processing procedure. While M s . Flitton's appeal did answer the threshold Hensley inquiry, establishing her as a prevailing party, it left the question what claims she would ultimately succeed o n , as well as the degree of success she'd ultimately achieve, undecided -- d i s c e r n a b l e only after extensive further proceedings in the district court. In such c i r c u ms t a n c e s (unlike those in Hoyt), a rule requiring a plaintiff to apply for a p p e l l a t e fees from us would be pointless. We could do no more than remand the f e e matter, along with the merits, to the district court for resolution at the end of i t s proceedings. We could order, then, no more than what Ms. Flitton herself s o u g h t when she applied for fees at the conclusion of her case. The law does not -7-

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n o r ma l l y require people to do pointless things -- and surely it shouldn't do so. Yet, requiring a plaintiff in Ms. Flitton's shoes to file a piece of paper with us s e e k i n g fees at the time of her appeal could be no more than that: at best, a p o i n t l e s s exercise; at worst, a hidden trap to ensnare the unwary and deny them w h a t Congress has said they should receive. The court today worries that allowing a district court to award appellate f e e s in this case would risk "strip[ping] this court of its discretion to award a p p e a l - r e l a t e d fees." Maj. Op. at 12. But the court's concern seems to presume t h a t this court has some rule absolutely forbidding district courts from c o n s i d e r i n g appellate fees, which Crumpacker makes manifest we don't. And its w o r r y proves too much because it would require us not just to deny fees here but a l s o to overrule Crumpacker, which we can't. Besides, allowing the district court t o assess fees in this case would hardly leave this court powerless: we always p o s s e s s the power to review on appeal the reasonableness of any award the d i s t r i c t court may authorize (indeed, in Crumpacker we held that we will review t h e district court's award of appellate fees de novo, 474 F.3d at 756). It's unclear w h a t ' s wrong with that arrangement. F r o m Section II.D, I respectfully dissent.

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