Eileen McAfee v. Christine Boczar
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 3:11-cv-00646-REP-MHL. [999257569]. [12-2481, 13-1088, 13-1356]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2481
EILEEN MCAFEE,
Plaintiff – Appellee,
v.
CHRISTINE M. BOCZAR,
Defendant – Appellant,
and
JOHN DOE 1; JOHN DOE 2; JOHN DOE 3,
Defendants.
No. 13-1088
EILEEN MCAFEE,
Plaintiff – Appellee,
v.
CHRISTINE M. BOCZAR,
Defendant – Appellant,
and
JOHN DOE 1; JOHN DOE 2; JOHN DOE 3,
Defendants.
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No. 13-1356
EILEEN MCAFEE,
Plaintiff – Appellee,
v.
CHRISTINE M. BOCZAR,
Defendant – Appellant,
and
JOHN DOE 1; JOHN DOE 2; JOHN DOE 3,
Defendants.
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
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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.
two appellate issues:
Boczar presents
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 26, 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
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owner,
McAfee
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examined
the
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dog
and
concluded
that
it
appropriate shelter but was otherwise in good condition.
lacked
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
thereafter
exchange
contacted
Boczar
two
ever
other
had
with
persons,
McAfee.
further
Boczar
seeking
to
locate the dog.
Both of those persons had spoken to McAfee
district court.
Cir. 1990).
See Plyler v. Evatt, 902 F.2d 273, 278 (4th
4
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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.
Boczar
then arrested McAfee on the warrant and transported her to the
County
Sheriff’s
Office.
McAfee
on
and
bond,
a
The
magistrate
one-day
magistrate court on May 27, 2011.
jury
thereafter
trial
was
released
conducted
in
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
three separate claims:
probable
cause.
The
complaint
made
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,
(Count III).
a
false
imprisonment
claim
under
state
law
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
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Count III under Rule 50 of the Federal Rules of Civil Procedure,
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
compensatory
evidence.”
Count
and
II.
At
punitive
trial,
damages
McAfee
as
requested
“determined
by
both
the
McAfee v. Boczar, 906 F. Supp. 2d 484, 488 (E.D. Va.
2012) (the “Opinion”).
In closing argument to the jury, counsel
for
her
McAfee
summed
up
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.
to compensate Ms. McAfee?
Something else?
The
jury
So what is the right number
Is it $50,000?
Is it something more?
verdict
found
that
McAfee
Is it $500,000?
You decide.”
was
entitled
J.A. 339. 2
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.
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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 “refuse[d]” to give any information
about the dog’s whereabouts.
Id. at *3.
was
statement
established
that
this
At trial, however, it
was
untrue.
Boczar
testified that, in her only conversation with McAfee, Boczar had
explained that she could locate the dog, though she did not have
the address where it lived.
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
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of the documented costs, Boczar complained that the requested
fees
were
awarding
unreasonable
$15,000.
Petition
to
The
a
negotiations.
and
district
federal
A
countered
court
magistrate
settlement
with
then
a
proposal
referred
judge
conference
fee
for
was
the
Fee
settlement
conducted
on
September 19, 2012, but the parties were unable to reach an
accord.
that
The magistrate judge reported to the district court
the
state’s
Division
of
Risk
Management,
which
was
responsible for the damages award, had refused to negotiate in
good faith.
Because
court
the
settlement
independently
negotiations
evaluated
the
Fee
failed,
Petition
the
to
district
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
pursuant to § 1983.
respect
to
a
claim,
inter
alia,
made
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,
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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.
A.
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
3
district
court's
denial
of
Boczar filed three notices of appeal. The first (No. 122481) 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.
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qualified immunity.
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Merchant v. Bauer, 677 F.3d 656, 661 (4th
Cir. 2012). 4
In
this
district
request.
case,
court
Boczar
prior
to
invoked
trial
by
qualified
way
of
a
immunity
summary
in
the
judgment
In some circuits, a defendant’s failure to follow the
procedures set forth in Rule 50 — beginning with a Rule 50(a)
motion
and
constitutes
then
a
renewing
waiver
of
the
the
contention
qualified
under
immunity
Rule
50(b)
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-inchief 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).
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verdict
Filed: 12/12/2013
motion
under
Rule
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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
Merchant, 677 F.3d at 662.
the
Fourth
cause
to
Amendment
believe
to
that
constitutional
right.
Here, McAfee asserts her right under
be
she
free
had
from
arrest
committed
a
absent
probable
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
caution
in
that
themselves
an
to
offense
convince
has
been
a
or
person
is
of
being
reasonable
committed.”
Wadkins v. Arnold, 214 F.3d 535, 539 (4th Cir. 2000).
In
this
sufficient
believe
knowledge
that
interviewed
situation,
McAfee
only
about
it
is
McAfee’s
contravened
three
clear
persons,
dog
Virginia
and
none
that
bite
Boczar
to
law.
had
lacked
reasonably
Boczar
suggested
McAfee was refusing to disclose the dog’s location.
had
that
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
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McAfee’s
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suggests
arrest
Pg: 12 of 31
Boczar
that
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.
clearly established.
And this constitutional right is
See Miller v. Prince George's Cnty., 475
F.3d 621, 627 (4th Cir. 2007) (“Unquestionably, [t]he Fourth
Amendment
prohibits
unreasonable
without
law
seizures,
probable
and
cause
marks omitted)).
enforcement
seizure
is
of
officers
an
unreasonable.”
from
individual
(internal
making
effected
quotation
Therefore, Boczar cannot shield herself from
damages liability by invoking qualified immunity.
B.
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
Eckerhart, 461 U.S. 424, 433 (1983).
party.”
Hensley
v.
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.
if
there
has
Id.
been
More specifically, a party has prevailed
a
“material
12
alteration
of
the
legal
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relationship
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of
the
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parties,”
imprimatur on the change.”
and
there
is
a
“judicial
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).
what
is
reasonable
in
terms
of
hours
expended
To ascertain
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
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(5th Cir. 1974). 5
Id. at 243–44.
Next, the court must “subtract
fees
spent
for
hours
successful ones.”
“some
percentage
on
unsuccessful
Id. at 244.
of
the
claims
unrelated
to
Finally, the court should award
remaining
amount,
degree of success enjoyed by the plaintiff.”
depending
Id.
on
the
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
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1.
The Supreme Court has indulged a “strong presumption” that
the lodestar number represents a reasonable attorney’s fee.
Court
recently
explained
that
this
presumption
can
only
The
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
Kenny A. ex rel. Winn, 130 S. Ct. 1662, 1673 (2010).
Perdue
v.
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.
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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.”
130 S. Ct. at 1673).
Id. (quoting Perdue,
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
properly
Johnson
perform
opportunity
cost);
factors:
legal
Factor
Factor
services);
5
3
(skill
Factor
(customary
4
fee);
required
to
(attorney’s
Factor
6
(attorney’s expectations at outset of litigation); and Factor 9
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(experience, reputation, and ability of attorney).
a
result,
according
to
the
court,
those
collapse into the lodestar calculation.
the
court’s
lodestar
analysis,
five
See id.
factors
in
controversy
(undesirability
of
case
and
Perdue
reserved
results
within
also
Ultimately, pursuant to
four
factors for use in adjusting the lodestar fee amount:
(amount
As
Johnson
Factor 8
Factor
10
community);
Factor
11
legal
obtained);
(nature and length of professional relationship between attorney
and client); and Factor 12 (attorneys’ fee awards in similar
cases).
We
See id.
district
have
indeed
court’s
recognized
analysis,
“to
that,
the
consistent
extent
that
with
the
of
[the
any
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
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factors to which such a principle might apply. 7
Fifth
Circuit
has
held
that
a
bankruptcy
For example, the
court
abused
its
discretion in using four of the Johnson factors “to justify its
substantial
upward
departure
from
the
lodestar”
because
lodestar amount already accounted for those factors.
of Fender, 12 F.3d 480, 488 (5th Cir. 1994).
the
See Matter
And the Second
Circuit recently held that a district court erred in adjusting
the
initial
lodestar
already included.
figure
on
the
basis
of
Johnson
factors
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
calculations.
factors
might
be
subsumed
by
the
In its Perdue decision, the Supreme Court was
addressing the enhancement of a lodestar attorney’s fee.
Ct. at 1673.
lodestar
130 S.
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
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calculation by $42,600.
Pg: 19 of 31
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.
a.
In her Fee Petition, McAfee requested an award for 996.7
hours of legal work by her lawyers.
496.
McAfee, 906 F. Supp. 2d at
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.
501.
Id. at
Neither of the parties disputes these calculations, and
they are not further addressed.
In
lawyers
determining
was
unwillingness
issues.
whether
reasonable,
to
the
the
entertain
time
expended
by
McAfee’s
Opinion
referred
to
Boczar’s
settlement
on
the
See McAfee, 906 F. Supp. 2d at 502.
attorney’s
fee
The court observed
that failure to contemplate a settlement strategy “makes for
expensive
litigation,”
and
the
19
defendant
must
bear
the
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consequences.
taking
her
Id. at 501–02.
settlement
Pg: 20 of 31
Boczar asserts that the court, by
position
into
account,
abused
discretion and punished Boczar for her recalcitrance.
argument falls short in two respects.
“has
discretion
to
consider
its
Boczar’s
First, a district court
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.
Supp. 2d at 502 n.17.
the
settlement
In other words, the court’s assessment of
negotiations
could
not
impact on the lodestar calculation.
court
did
not
abuse
McAfee, 906 F.
its
discretion
have
had
a
measurable
In these circumstances, the
in
calculating
the
hours
expended by McAfee’s lawyers.
b.
McAfee's lead counsel charged an hourly rate of $585, and
his senior associate charged $365 per hour.
20
McAfee, 906 F.
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Supp. 2d at 496.
Pg: 21 of 31
As the fee applicant, McAfee bore the burden
of establishing the reasonableness of those hourly rates.
Plyler v. Evatt, 902 F.2d 273, 277 (4th Cir. 1990).
See
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
“McAfee
more
than
has
rates
met
her
of
McAfee’s
burden
of
lawyers,
and
establishing
so
the
reasonable hourly rate for her counsel.”
McAfee, 906 F. Supp.
2d
appear
at
496.
Although
those
rates
would
excessive
to
almost any lay observer, and some members of the judiciary would
deem
them
exorbitant,
the
district
court’s
contrary are entitled to our deference.
21
findings
to
the
As a result, we are
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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
Grissom, 549 F.3d at 321.
to
the
successful
ones.”
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
reimbursing McAfee for her out-of-pocket expenses.
damages
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
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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
furtherance
hours,
on
of
a
“identified
the
the
unsuccessful
line-by-line
that
counts”
basis,
McAfee, 906 F. Supp. 2d at 497.
work
from
and
the
was
performed
“deducted
work
in
those
performed.”
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.”
Hensley,
461
U.S.
at
435).
Reducing
Id. at 502 (quoting
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
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the
Doc: 49
court
Filed: 12/12/2013
failed
to
properly
Pg: 24 of 31
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
is
limited
in
significant,
litigation as a whole.”
the
Supreme
Court
award
if
comparison
“the
to
relief,
the
scope
Hensley, 461 U.S. at 439–40.
has
recognized
that
the
extent
however
of
the
Indeed,
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
satisfactory basis for making a fee award.”
expended
a
Id. at 434.
Although McAfee’s success in recovering her general out-ofpocket 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
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561,
Doc: 49
580
Filed: 12/12/2013
(1986).
The
Pg: 25 of 31
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.
a.
We have recognized that, “[w]hen considering the extent of
the
relief
obtained,
we
must
compare
sought to the amount awarded.”
199, 204 (4th Cir. 2005).
part
of
the
excessive.
example,
success
she
the
amount
of
damages
Mercer v. Duke Univ., 401 F.3d
If a § 1983 plaintiff achieves only
sought,
the
lodestar
amount
may
See Farrar v. Hobby, 506 U.S. 103, 114 (1992).
in
Farrar,
the
plaintiffs
sought
$17
million
be
For
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.
115–16.
Id. at
In her concurrence, Justice O’Connor elaborated: “[A]
substantial difference between the judgment recovered and the
recovery
sought
technical.”
added).
suggests
that
the
victory
is
in
fact
purely
Id. at 121 (O’Connor, J., concurring) (emphasis
In Farrar, the plaintiff “asked for a bundle” ($17
million) and “got a pittance” ($1).
25
Id. at 120.
As such, the
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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
requested
about.”
special
J.A.
compensatory
338.
In
damages
particular,
for
McAfee
“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?
Something else?
added).
Is
it
$50,000?
Is it something more?”
Is
it
$500,000?
Id. at 339 (emphasis
McAfee’s arrest, according to her lawyers, caused her
to lose weight and forgo sleeping, diminishing her energy.
id.
See
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
26
award.
At
trial,
McAfee’s
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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.
b.
In justifying its award of attorney’s fees, the Opinion
accorded great weight to the deterrent effect of the judgment
and
the
rights.
verdict’s
reaffirmation
of
McAfee’s
Fourth
See McAfee, 906 F. Supp. 2d at 505.
Opinion,
the
verdict
“vindicated
Amendment
According to the
important
civil
and
constitutional rights that cannot be valued solely in monetary
terms.”
ruling,
Id. at 503 (quoting Rivera, 477 U.S. at 574).
the
reasonable
citizens
of
court
and
explained
necessary
Virginia,
a
to
most
that
“the
vindicate,
important
hours
for
expended
McAfee
right
and
secured
Fourth Amendment of the United States Constitution.”
27
In so
Id.
were
other
by
the
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The
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jury’s
forbearance
Pg: 28 of 31
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.”
Co. v. Haslip, 499 U.S. 1, 21 (1991).
Pac. Mut. Life Ins.
Because the jury did not
approve punitive damages, the court’s reliance on deterrence and
vindication
in
substantially
its
calculation
undermined. 10
Cf.
of
McAfee’s
Rivera,
477
success
U.S.
at
is
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
Rivera, 477 U.S. at 574.
plaintiff
actually
recovers.
See
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
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seven
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times
the
Pg: 29 of 31
plaintiff’s
recovery
this
case,
however,
we
cannot
compensatory
and
See id. at 565-67.
punitive damages, amounting to $33,350.
of
In
ignore
the
pronounced
disproportionality between the verdict for less than $3000, and
the fee award more than 100 times that amount.
may
well
be
unprecedented
in
this
Circuit,
Such a disparity
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
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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
recognized,
district
however,
court
that
and
“[a]
the
lawyers.
request
for
We
have
also
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.
attorney’s
fees
“[t]o
avoid
See id. (modifying award of
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
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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
31
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