Alvarez v. McCarthy ( 2022 )

Case: 20-50465 Document: 00516245594 Page: 1 Date Filed: 03/18/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 18, 2022
No. 20-50465 Lyle W. Cayce
Clerk
Gilberto Alvarez,
Plaintiff—Appellant,
versus
Ryan D. McCarthy, Secretary of the Army, In his
official capacity,
Defendant—Appellee.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:16-CV-172
Before Wiener, Graves, and Duncan, Circuit Judges.
Per Curiam:*
Gilberto Alvarez appeals three orders concerning his requests for
attorney’s fees. For the reasons that follow, we affirm in part, vacate in part,
and remand.
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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No. 20-50465
I.
Gilberto Alvarez worked as an orthotist for the Department of the
Army (“the Army”) in Fort Hood, Texas.1 When Alvarez was not selected
for a supervisor position at the orthopedic brace clinic where he worked, he
filed a complaint with the Fort Hood Equal Employment Opportunity Office,
alleging that national-origin discrimination caused his non-selection. After he
was again passed over for the position, Alvarez filed suit, alleging that the
Army had retaliated against him for filing the EEO complaint, in violation of
Title VII of the Civil Rights Act of 1964.
Alvarez’s lead counsel was Colin Walsh, a partner at Wiley Walsh,
P.C. in Austin, Texas. Walsh eventually brought on Jairo Castellanos, an
associate at Wiley Walsh; Kalandra Wheeler, a partner at Wiley Wheeler,
P.C. in Houston; and Eric Dama, a senior trial attorney at Rob Wiley, P.C. in
Dallas. The litigation spanned three motions to dismiss, discovery, a motion
for summary judgment, a trial, and numerous post-trial motions.
Trial took place in October 2019. Jury selection lasted half a day, and
each side was given five hours to present its case, excluding opening and
closing arguments. Seven witnesses—none of whom were experts—testified.
The jury was asked a single question regarding liability: “Do you find that
Plaintiff Gilberto Alvarez would have been given a promotion to the position
of Supervisor of the Fort Hood Brace Shop but for filing a complaint with the
Fort Hood EEO alleging national origin discrimination?” The jury answered
yes and awarded Alvarez a total of $100,416, the full amount of damages
1
An orthotist “makes and fits braces and splints for patients who need added
support for body parts that have been weakened by injury or disease.” Orthotist, Cambridge
Dictionary, https://dictionary.cambridge.org/us/dictionary/english/orthotist (last visited
Mar. 10, 2022).
2
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sought. The final judgment awarded $144,731.91 in damages and pre-
judgment interest, as well as post-judgment interest.
The final judgment also gave Alvarez 14 days to move for attorney’s
fees and costs. Alvarez retained Robert McKnight, a solo practitioner in
Victoria, Texas, to assist with the motion. In his initial motion for attorney’s
fees, Alvarez sought a lodestar fee of $300,608.50 for 568.50 hours at rates
ranging from $350 to $585 per hour. He also requested $12,891.14 in costs.
The Army filed a response in opposition, contending that the court should
reduce the number of compensable hours, the hourly rate, and specified
costs. In reply, Alvarez subtracted 9.20 hours from the initial fee motion,
resulting in an adjusted lodestar of $296,522. Alvarez also filed his first
supplemental motion for attorney’s fees, requesting $4,000 in compensation
for ten hours that McKnight had spent replying in support of the initial fee
motion.
The district court partially granted the initial fee motion. It awarded
$126,770 in attorney’s fees and $4,223.65 in costs. The court “considered
the simplicity of the case . . . in conducting its lodestar analysis.” It
determined that the “hours expended by [Alvarez’s] legal team were
unreasonable and unnecessary,” in part because Alvarez retained five
attorneys from three different law firms. The court used the Army’s
opposition “as a template” in reducing the number of compensable hours,
excluding (1) pre-trial hours related to internal conferencing, opening
statement preparation, Wheeler’s review of pleadings and depositions, and
document revision; (2) hours related to Wheeler’s preparation for and
appearance at trial; (3) post-trial hours related to document revision and
McKnight’s preparation of the fee motion; (4) hours related to the
presentation of two witnesses at trial; (5) and hours related to a pre-trial focus
group. The court determined that Alvarez’s requested hourly rates were
excessive and unreasonable, and it reduced the rates for all attorneys to $350
3
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per hour. The court’s analysis relied heavily on the 2015 State Bar of Texas
Hourly Fact Sheet and declined to follow Johnson v. Southwest Research
Institute, a 2019 case in which another Western District of Texas judge
awarded Walsh, Wheeler, Castellanos, and McKnight the same rates that
they requested in Alvarez’s fee motion.2 The court also declined to award
costs related to attorney travel and to the focus group.
In a text-only docket order, the district court later denied as moot
Alvarez’s first supplemental fee motion. Alvarez timely appealed the district
court’s decisions regarding the initial fee motion and first supplemental fee
motion. The Army moved for a new trial or remittitur, Alvarez responded in
opposition, and the Army replied. The court ordered the parties to mediate,
but the mediation was unsuccessful. The court later denied the Army’s
motion for a new trial.
Alvarez then filed his second supplemental fee motion, requesting
compensation for hours spent opposing the Army’s motion for a new trial or
remittitur and for attending the mediation. The court granted that motion in
part, concluding that all requested hours were compensable but reducing the
hourly rate to $350, consistent with the initial fee order. Alvarez timely
appealed. His present appeal challenges all three fee orders.
II.
We review the district court’s award of attorney’s fees for abuse of
discretion.3 This deferential standard of review is “appropriate in view of the
district court’s superior understanding of the litigation and the desirability of
2
See No. 5:15-297, 2019 WL 4003106 (W.D. Tex. Aug. 23, 2019).
3
Torres v. SGE Mgmt., L.L.C., 945 F.3d 347, 352 (5th Cir. 2019).
4
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avoiding frequent appellate review of what essentially are factual matters.” 4
“To constitute an abuse of discretion, the district court’s decision must be
either premised on an erroneous application of the law, or on an assessment
of the evidence that is clearly erroneous.”5
III.
Alvarez challenges several components of the district court’s initial
fee order. We address each challenge in order.
A.
Alvarez challenges the district court’s lodestar calculation. District
courts in this circuit calculate attorney’s fees using “the lodestar method—
multiplying the number of hours reasonably expended by an appropriate
hourly rate.”6 After determining the lodestar amount, district courts employ
a twelve-factor test derived from Johnson v. Georgia Highway Express, Inc.7
“to determine whether counsel’s performance requires an upward or
downward adjustment from the lodestar.”8
This court reviews the district court’s “initial determination[s] of
reasonable hours and rates”—the lodestar’s components—for clear error.9
4
Associated Builders & Contractors of La., Inc. v. Orleans Par. Sch. Bd., 919 F.2d 374,
379 (5th Cir. 1990) (quoting Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)).
5
Torres, 945 F.3d at 352 (quoting In re High Sulfur Content Gasoline Prods. Liab.
Litig., 517 F.3d 220, 227 (5th Cir. 2008)).
6
Cruz v. Maverick Cnty., 957 F.3d 563, 574 (5th Cir. 2020).
7
488 F.2d 714 (5th Cir. 1974), abrogated on other grounds by Blanchard v. Bergeron,
489 U.S. 87 (1989).
8
Cruz, 957 F.3d at 574.
9
Saizan v. Delta Concrete Prods. Co., 448 F.3d 795, 800 (5th Cir. 2006).
5
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The lodestar benefits from “a strong presumption of . . . reasonableness.”10
We review adjustments to the lodestar made pursuant to the Johnson factors
for abuse of discretion, “specifically to determine if the district court
sufficiently considered the appropriate criteria.”11
1.
Alvarez first asserts that the district court failed to explain its lodestar
calculation adequately. Although district courts have broad discretion when
making fee awards, “[i]t remains important . . . for the district court to
provide a concise but clear explanation of its reasons for the fee award.” 12
However, we do not require a “complete litany” that accounts for every hour
in “excruciatingly explicit” detail.13 Rather, the district court’s explanation
must merely be “complete enough” to permit us to “determine [that] the
court . . . used proper factual criteria.”14
Here, the district court provided a five-page analysis, discussing
specific categories of time it excluded as unnecessary, redundant, or
excessive. The district court’s explanation of its fee calculation was
sufficient.
2.
Alvarez also contends that the district court committed several errors
when calculating appropriate hourly rates. “Hourly rates are to be computed
10
Id.11
Cruz, 957 F.3d at 574 (internal quotation marks omitted) (emphasis in original)
(quoting Gurule v. Land Guardian, Inc., 912 F.3d 252, 258 (5th Cir. 2018)).
12
Hensley, 461 U.S. at 437.
13
Blanchard v. Bergeron, 893 F.2d 87, 89 (5th Cir. 1990) (internal quotation marks
omitted).
14
Id. (quoting Brantley v. Surles, 804 F.2d 321, 325–26 (5th Cir. 1986)).
6
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according to the prevailing market rates in the relevant legal market . . .”15
The relevant legal market, in turn, is generally “the community in which the
district court sits.”16
a.
Alvarez asserts that the district court improperly factored
simplicity—one of the Johnson factors17—into its rate calculation. Citing
Perdue v. Kenny A. ex rel. Winn,18 Alvarez contends that simplicity may be
factored into a calculation of the number of hours expended, but not of hourly
rates. But Perdue does not expressly forbid district courts from factoring
simplicity into hourly rate calculations; rather, it counsels that a district court
may not increase the lodestar based on a factor that it used to calculate the
lodestar.19 The district court’s determination of the reasonable hourly rate
was not clearly erroneous.
b.
Next, Alvarez contends that the district court erred in calculating the
hourly rates by consulting its own knowledge and experience. We have
observed that an “hourly fee awarded must be supported by the record; the
district court may not simply rely on its own experience in the relevant legal
15
Hopwood v. Texas, 236 F.3d 256, 281 (5th Cir. 2000).
16
Tollett v. City of Kemah, 285 F.3d 357, 368 (5th Cir. 2002) (quoting Scham v. Dist.
Cts. Trying Crim. Cases, 148 F.3d 554, 558 (5th Cir. 1998), abrogation on other grounds
recognized by Sanchez v. City of Austin, 774 F.3d 873, 884 n.8 (5th Cir. 2014)).
17
See 488 F.2d at 718.
18
559 U.S. 542, 553 (2010).
19
See id.; see also Blum v. Stenson, 465 U.S. 886, 898 (1984) (explaining that a case’s
novelty and complexity could not support an “upward adjustment” from the lodestar
because they were factored into the lodestar itself).
7
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market to set a reasonable hourly billing rate.”20 In this case, the district court
applied its “own knowledge and experience concerning reasonable and
proper fees.” But the court did not “simply rely on its own experience;”21
rather, the court gave “[s]ignificant [w]eight to the State Bar of Texas Hourly
Fact Sheet Publication” when it calculated a reasonable rate. This
publication, which contains “data collected on the hourly rates of 4,260
licensed and practicing, full-time private practitioners who provided hourly
rate information for the calendar year 2015,” helps clarify the “prevailing
market rates in the relevant legal market,” according to which “[h]ourly
rates are to be computed.”22 As we explain below, the district court did not
clearly err in determining that the Fact Sheet was an appropriate guide for
setting the hourly rate, so it provides record support.23 The district court did
not rely solely on its own experience to determine an hourly rate unsupported
by the record so Alvarez cannot show an error.
c.
In addition to the alleged legal errors addressed above, Alvarez also
asserts that the district court committed several factual errors when
20
McClain v. Lufkin Indus., 649 F.3d 374, 383 (5th Cir. 2011) (emphasis added)
(quoting League of United Latin Am. Citizens No. 4552 (LULAC) v. Roscoe Indep. Sch. Dist.,
119 F.3d 1228, 1234 (5th Cir. 1997)); see also Cobb v. Miller, 818 F.2d 1227, 1232 & n.7 (5th
Cir. 1987) (noting that a magistrate “should not have considered his own experience” “[i]n
arriving at a reasonable hourly rate” “since it is not one of the Johnson factors,” but holding
that the magistrate’s “findings on specific Johnson factors [were] sufficient to allow us to
affirm his determination of the lodestar amount”).
21
McClain, 649 F.3d at 383 (emphasis added) (quoting LULAC, 119 F.3d at 1234).
22
Hopwood, 236 F.3d at 281.
23
See Am. Zurich Ins. Co. v. Jasso, 598 F. App’x 239, 250 (5th Cir. 2015)
(unpublished) (affirming a fee order that reduced the plaintiff’s requested hourly rates
based on the 2011 Fact Sheet, which we characterized as “reasonable data” on which the
district court could rely).
8
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calculating the hourly rate. Alvarez first claims that the district court “failed
to acknowledge at any point in its fee order . . . supporting testimony from
Schmidt and O’Brien,” two attorneys who testified that the requested rates
were reasonable. Although the court did not explicitly mention Schmidt’s
and O’Brien’s declarations, it did state that it had considered “the parties’
briefing . . . and the case file” in making the fee determination.
Second, Alvarez claims that the district court “discounted the
evidence that all of the fee applicants [besides Dama] requested and received
exactly the same hourly rates less than two months before [this] trial . . . in
[Johnson v. Southwest Research Institute].” Here, the district court
“decline[d] . . . to [f]ollow Johnson,”24 explaining that “the hourly rates upon
which the Johnson court relied were rates awarded to attorneys in national
and international law firms with hundreds of attorneys.” The district court
also observed that “each of those cases required some form of specialization
on the part of counsel,” whereas “this litigation was devoid of any necessity
for [Alvarez’s] counsel to have any specialized training nor were there any
issues involved that were complex.” The district court also noted that “the
rates considered by the Johnson court were rates applicable to markets other
than Waco.” When we review the cases cited in Johnson v. Southwest Research
Institute, we cannot say that these conclusions are clearly erroneous. 25
24
Johnson v. Southwest Research Institute, the case to which the district court is
referring, is unrelated to Johnson v. Georgia Highway Express, Inc., the Fifth Circuit case
discussed supra.
25
See Johnson, 2019 WL 4003106, at *7; Midcap Media Fin., L.L.C. v. Pathway
Data, Inc., No. 1-15-CV-00060 AWA, 2018 WL 7890668, at *2–3 (W.D. Tex. Dec. 19,
2018) (in a breach of contract case, awarding rates up to $755/hour for Haynes & Boone
attorneys in Austin); Xpel Techs. Corp. v. Carlas Int’l Auto. Accessory, Ltd., No. 16–CA–
01308–DAE, 2017 WL 9362801, at *9 (W.D. Tex. Nov. 27, 2017) (in a trademark
infringement action, awarding up to $545/hour—an upward adjustment from the San
Antonio market rate—for attorneys at Dykema, “a large national law firm”); City of San
9
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Third, Alvarez challenges the “significant weight” that the district
court afforded the State Bar Fact Sheet. The district court concluded that the
“Fact Sheet has been and remains a viable barometer of a rate’s
reasonableness.” Some district courts have likewise endorsed the Fact
Sheet’s utility in recent cases.26 Others have not.27
Alvarez does not dispute that the Fact Sheet constituted evidence of
reasonable rates. Instead, he contends that—because of its age, provision of
median rates only, and reflection of low response rates—“its probative value
is so slight . . . that relying on it as the sole competent evidence resulted in a
clearly erroneous determination” of hourly rates. We are mindful of the Fact
Sheet’s probative limitations, but they were for the district court, not us, to
consider.28 In sum, we cannot say that the district court clearly erred when it
determined that the Fact Sheet was a useful “baseline” for calculating a
reasonable hourly rate.
Antonio v. Hotels.com, L.P., No. 5-06-CV-381-OLG, 2017 WL 1382553, at *9–11 (W.D. Tex.
Apr. 17, 2017) (in a class action concerning “specialized” hotel-occupancy law in San
Antonio, awarding up to $625/hour for attorneys at McKool Smith); Sierra Club v. Energy
Future Holdings Corp., No. W-12-CV-108, 2014 WL 12690022, at *3–6 (W.D. Tex. Aug.
29, 2014) (in a Clean Air Act case, awarding up to $925/hour to attorneys at Gibson Dunn
and Crutcher based on their home market of Dallas).
26
See, e.g., Burns v. Nielsen, No. EP-17-CV-00264-DCG, 2021 WL 534711, at *5–6
(W.D. Tex. Feb. 12, 2021); Morales v. Rausch Grp. & Assoc., LLC, No. 3:19-CV-2850-B,
2021 WL 75400, at *3 & n.2 (N.D. Tex. Jan. 7, 2021).
27
See, e.g., Diocesan Migrant & Refugee Servs., Inc. v. U.S. Immigr. & Customs Enf’t,
No. EP-19-CV-00236-FM, 2021 WL 289548, at *12 (W.D. Tex. Jan. 28, 2021); Miniex v.
Houston Hous. Auth., No. 4:17-0624, 2019 WL 4920646, at *4 (S.D. Tex. Sept. 13, 2019).
28
See Matthews v. Remington Arms Co., 641 F.3d 635, 643 (5th Cir. 2011) (“It goes
without saying that the district court is in a ‘superior position to appraise and weigh the
evidence.’” (quoting Zenith Radio Corp. v. Hazeltime Res., Inc., 395 U.S. 100, 123 (1969)));
Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir. 1993) (“Due to the district court’s superior
knowledge of the facts and the desire to avoid appellate review of factual matters, the
district court has broad discretion in setting the appropriate award of attorneys’ fees.”).
10
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3.
Alvarez also claims that the district court erred in calculating the
number of hours reasonably expended. “The calculation requires a
determination of whether the total number of hours claimed were reasonable
and whether specific hours claimed were reasonably expended.” 29 “Hours
which, though actually expended, nevertheless ‘are excessive, redundant, or
otherwise unnecessary,’ or which result from the case being ‘overstaffed’ are
not hours ‘reasonably expended’ and are to be excluded from this
calculation.”30
a.
First, Alvarez challenges the district court’s exclusion of the time
taken to prepare and present two witnesses—Thomas and Johnson—at trial.
The district court determined that these witnesses’ testimony was
“unrelated to causation,” the “single issue for the jury to decide.”
“A Title VII retaliation plaintiff must establish that: ‘(1) the employee
engaged in activity protected by Title VII; (2) the employer took adverse
employment action against the employee; and (3) a causal connection exists
between that protected activity and the adverse employment action.’”31 At
trial, the Army pointed to Alvarez’s “pattern of interpersonal conflicts, not
just with [his] coworkers[,] but with [his] patients too.” Contrasting a
hypothetical successful applicant with Alvarez, the Army contended in its
closing presentation that the successful applicant “shows up for work on
29
LULAC, 119 F.3d at 1232.
30
Leroy v. City of Houston, 906 F.2d 1068, 1079 (5th Cir. 1990) (emphasis in
original) (quoting Hensley, 461 U.S. at 434).
31
Zamora v. City of Houston, 798 F.3d 326, 331 (5th Cir. 2015) (quoting Thomas v.
Tex. Dep’t of Crim. Just., 220 F.3d 389, 394 (5th Cir. 2000)).
11
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time, doesn’t go fishing in the middle of the day, doesn’t slam doors, doesn’t
use profanity against their coworkers.” For his part, Alvarez contended that
he was a good employee who had consistently received positive reviews, and
that “the Army violated or ignored its own policies and procedures in not
selecting” him for a promotion. Rebutting the Army’s closing argument,
Alvarez described the “Army’s entire defense [as] ignore the rules, ignore
the policy, ignore the performance reviews.” He did so, of course, in an
(apparently successful) effort to persuade the jury that the Army lacked a
non-retaliatory reason for failing to promote him.
Johnson, an employee relations specialist in the Army’s HR
Department, testified at length about the Army’s promotion process, the
performance evaluation process, and Alvarez’s positive reviews. Thomas, an
“equal employment manager” at Fort Hood, testified at length regarding the
Army’s processes and procedures for handling EEO complaints, including
the one at issue in this case.
We are mindful of the deference owed to the district court and its
superior vantage point. And we see no clear error in the district court’s
decision to award no fees for hours related to Thomas’s testimony, which
had no obvious connection to the issue of causation. We cannot agree,
however, with the district court’s conclusion that Johnson’s testimony was
“unrelated to causation.” As noted, much of her testimony went directly to
causation. In fact, her testimony on the subject was so important that both
parties referenced it in their closing arguments, with the Army citing her by
name. The district court’s decision not to award fees for the billed hours
relating to her testimony was clearly erroneous. We vacate the relevant
portion of the fee order accordingly.
12
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b.
Alvarez next contests the district court’s exclusion of time related to
the focus group. The court characterized Alvarez’s suit as a “straightforward
employment case” and determined that “the hours and costs related to the
focus group were unnecessary and should be excluded in their entirety, even
if [Alvarez] believed that the focus group was necessary.” These
determinations are not clearly erroneous.
Alvarez disputes the district court’s assessment of the case’s
simplicity, noting that it included “three motions to dismiss, a motion for
summary judgment, a trial, opposition to a motion for entry of judgment on
the verdict, a motion for new trial, and a cross-appeal.” But, as Alvarez
recognizes, the focus group was an element of trial preparation. It had no
bearing on the various other stages of the case. Each side was given five hours
to present its case, only seven fact witnesses testified, and neither party called
an expert witness. The district court did not clearly err in determining that
the case’s lack of complexity meant that it did not warrant a focus group.
c.
Alvarez next contends that the district court clearly erred in
confirming duplication and other unreasonable billing practices. The district
court concluded that, given the case’s relative simplicity, “it was
unreasonable and inefficient for [Alvarez] to retain five attorneys from three
different law firms in three different cities.” It then identified, discussed, and
excluded three categories of hourly billed time—pre-trial, trial, and post-
trial. First, the court excluded pre-trial hours related to internal
conferencing, opening statement preparation, Wheeler’s review of the case
file, and document revision. Alvarez contests these exclusions. He asserts
that little conferencing occurred before mid-June 2019, when the case
became trial-bound. This point is irrelevant, as the district court only
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excluded internal conferencing time “[w]ith respect to pre-trial
preparation.” Further, Alvarez concedes that (1) “[o]nce the case was bound
for trial, the internal conferencing increased” and (2) on fourteen occasions,
multiple participants billed for a single conference. Alvarez also criticizes the
district court’s choice to exclude as excessive time spent preparing the
opening statement. But while he insists that the opening statement “is an
item of singular importance,” he concedes the propriety of the district
court’s core finding: Walsh had ten separate entries concerning opening
statement preparation (totaling 44.20 hours), and Wheeler spent 3.60 hours
on an opening for the focus group. Alvarez likewise challenges the district
court’s exclusion of 14.30 hours that Wheeler spent reviewing pleadings and
depositions, but he does not dispute that this time occurred. Alvarez also
contests the district court’s determination that “almost every pre-trial
document was reviewed and revised (sometimes multiple times) by three
different attorneys.” Nevertheless, Alvarez’s briefing acknowledges the
existence of collaborative review involving at least two, and sometimes three,
attorneys for each major pre-trial submission. The district court did not
clearly err when it found these four groups of pre-trial hours to be duplicative
and excessive.
The district court also excluded particular hours related to the trial
itself. The court observed that Walsh and Castellanos “handled the bulk of
the case presentation” and determined that they could have tried the case on
their own. It therefore excluded time Wheeler spent preparing for, attending,
and presenting Johnson and Thomas at trial. We cannot say that this decision
was clearly erroneous.
The court also concluded “that the additional attorney’s fees charged
by Mr. Dama . . . were not reasonable and . . . were [not] necessary.” But, as
Alvarez correctly notes, Dama did not attend trial and billed no trial-related
hours. Therefore, a finding that Dama’s hours were excessive or unnecessary
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in this regard is clearly erroneous. Nonetheless, it is not apparent that the
district court actually reduced the number of compensable hours based on its
clearly erroneous determination. The court explained that it used the Army’s
opposition “as a template” in setting the number of hours. That opposition
highlighted and disputed specific time entries, but since Dama was not at
trial, he had no trial-related time entries that the Army could flag and dispute.
Moreover, the district court recognized that Alvarez “was represented
throughout the trial by three attorneys,” not four, which indicated an
awareness that Dama was not involved with trial. That means that there is no
reduction of hours for us to vacate.
Third, the district court excluded specific post-trial hours. It deemed
counsel’s “duplication of effort” to be “excessive and unnecessary,” noting
that “every single post-trial motion and response was reviewed and revised
by three different attorneys.” Alvarez claims that any post-trial review and
revision represents “a reasonable allocation of labor, not unreasonable
duplication of effort.” He nevertheless acknowledges that Walsh,
Castellanos, and Wheeler all had a hand in drafting and editing each major
post-trial filing. Alvarez notes that much of the work at issue “would not . . .
have been necessary absent the District Court’s . . . delay in entering
judgment.” Be that as it may, the district court did not clearly err with respect
to post-trial revisions.
Next, the court deemed the retention of McKnight “illogical,”
concluding that hiring McKnight to prepare the fee motion “made it
unavoidable that [he] would be required to get up to speed on case
background and procedural history.” Alvarez contends that the district court
erred by excluding all of the time McKnight spent on the fee motion,
“regardless of the fact that someone would have had to do it.” Exclusion of
all time spent preparing the fee motion would constitute an abuse of
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discretion.32 It appears, however, that the district court excluded the
majority—but not all—of McKnight’s time. The court used the Army’s
opposition as a template for computing compensable hours, and that
opposition rejected all but 1.70 of McKnight’s 19.40 hours. This is a steep
reduction, to be sure, but because the court found that Alvarez “expend[ed]
more effort than reasonably necessary to establish and defend [his] fee
claim,” it could “reduce the number of compensable hours accordingly.”33
We cannot say, then, that the district court clearly erred in doing so.
B.
Alvarez next contends that the district court erred by declining to
reimburse various travel-related costs. We review a district court’s award of
costs for abuse of discretion.34
When discussing “reimbursement for travel, hotel, and subsistence,”
the district court stated that “[t]here is no authority that allows for
reimbursement of these costs.” The court cited 28 U.S.C. §§ 1821 and 1920,
observing that “[n]othing in these statutes provides for the payment of travel
expenses to the attorneys in this case.”
However, “[i]n Title VII cases, a district court has an additional
source of authority for applying attorney’s fees and costs, 42 U.S.C.
§ 2000(e)-5(k).”35 As Alvarez correctly notes, we have “interpreted the
32
See Cruz v. Hauck, 762 F.2d 1230, 1233–34 (5th Cir. 1985) (holding that plaintiffs
are “entitled to attorney’s fees for the effort entailed in litigating a fee claim and securing
compensation,” so a district court may not “completely deny compensation” for these
fees).
33
Id. at 1234.
34
Gagnon v. United Technisource, Inc., 607 F.3d 1036, 1045 (5th Cir. 2010).
35
Mota v. Univ. of Tex. Hous. Health Sci. Ctr., 261 F.3d 512, 529 (5th Cir. 2001).
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‘attorney’s fee’ allowed by [this provision] to include ‘reasonable out-of-
pocket expenses incurred by the attorney which are normally charged to a
fee-paying client, in the course of providing legal services,’ such as . . . travel
costs.”36 It is true that, on remand, a district court may reduce requested
costs if it finds them to be unreasonable. But, because the district court here
denied such costs outright after it erroneously concluded that no authority
permitted their reimbursement, it abused its discretion. We must therefore
vacate this portion of the fee order.37
IV.
Alvarez also appeals the district court’s second fee order. That order
was a text-only docket entry denying as moot Alvarez’s first supplemental
fee motion. That motion sought additional attorney’s fees for the time
McKnight spent replying to the Army’s opposition to Alvarez’s original fee
motion.
As we previously mentioned, “[i]t is settled that a prevailing plaintiff
is entitled to attorney’s fees for the effort entailed in litigating a fee claim and
securing compensation.”38 This includes time spent replying to an opposing
party’s objections to the original fee motion.39 Again, if a plaintiff “expend[s]
more effort than reasonably necessary to establish and defend their fee claim,
the district court may reduce the number of compensable hours accordingly;
36
Id. (quoting Mennor v. Fort Hood Nat’l Bank, 829 F.2d 553, 557 (5th Cir. 1987)).
37
See Torres, 945 F.3d at 352 (observing that a court abuses its discretion when its
ruling is based on “an erroneous application of the law”).
38
Hauck, 762 F.2d at 1233.
39
See id. at 1234.
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it may not, however, completely deny compensation for this reason, and to
do so [is] an abuse of discretion.”40
In denying as moot the first supplemental fee motion, the district
court merely stated, “Pursuant to the Court’s Order Granting in Part
Plaintiff’s Motion for Fees, this Motion is now MOOT.” It did not further
explain the denial. The first fee order did not specifically discuss the time that
McKnight spent replying in support of the original fee motion. But, as we
noted above, the district court did discuss the Army’s “challenge[]” to
McKnight’s involvement in the preparation of the original fee motion. The
district court “agree[d] that the decision to have a fifth attorney is illogical
here . . . because having an attorney who had no involvement in the litigation
necessarily increased, rather than decreased[,] the efficiency of the
preparation of the Motion. This decision made it unavoidable that . . .
McKnight would be required to get up to speed on case background and
procedural history.”
It thus appears that the district court flatly denied all compensation
for the time McKnight spent replying to the Army’s opposition, and that it
did so based on its finding that McKnight’s involvement was unnecessary
and inefficient. Our precedent reflects that this was error. The district court
was permitted to “reduce the number of compensable hours” spent on the
reply, but it was not permitted to “completely deny compensation.”41 “[T]o
do so was an abuse of discretion.”42 We therefore vacate the second fee
order.
40
Id.41
Id.42
Id.18
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V.
Finally, Alvarez challenges the district court’s third fee order, which
granted in part and denied in part his second supplemental motion for
attorney’s fees. Alvarez contends that this order “represent[s] an abuse of
discretion to the extent it adopted the same hourly rates that it set in the first
fee order.” But as explained above, the district court did not clearly err when
calculating the hourly rate for the first fee order. We therefore affirm the
district court’s third fee order.
* * *
Conclusion
We VACATE the portions of the first fee order that denied (1) fees
related to Johnson’s testimony and (2) costs for attorney travel and
subsistence and we REMAND for the district court to award such costs that
it determines to be reasonable. We VACATE the second fee order and
REMAND for the district court to award reasonable compensation for the
reply in support of the first fee motion. We AFFIRM the third fee order.
19