Gary L. Mock v. Bell Helicopter Textron, Inc.

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JAN 27, 2012
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 10-14421
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D.C. Docket No. 6:04-cv-01415-JA-DAB
GARY L. MOCK,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellant,
versus
BELL HELICOPTER TEXTRON, INC.,
llllllllllllllllllllllllllllllllllllllll Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(January 27, 2012)
Before TJOFLAT, MARTIN and HILL, Circuit Judges.
PER CURIAM:
After prevailing against his former employer Bell Helicopter Textron, Inc.

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in an age discrimination lawsuit under 29 U.S.C. § 623(a)(1), Gary Mock appeals
the district court’s partial award of attorneys’ fees. The pertinent facts and
procedural history of this case are capably set forth in the magistrate judge’s
Report and Recommendation, adopted by the district court. For our purposes, it is
sufficient to say that after three years of contentious litigation Mock prevailed in
an age discrimination suit against Bell, and was awarded $225,809.78 in damages.
After nearly three more years of litigation, the district court awarded Mock
$332,229.37 in attorneys’ fees and costs—roughly 43% of what his counsel had
requested. Mock now appeals various aspects of the district court’s fee award
decision, including: numerous fact findings, the calculation of attorneys’ costs, the
denials of his request to file a reply brief after Bell’s response to his fee petition
and of his request for discovery of Bell’s attorney fee records, and the failure to
award interest on costs and fees from the date of the original damages judgment.
This Court reviews attorneys’ fees awards for abuse of discretion, reviewing
questions of law de novo and factfindings for clear error. Bivins v. Wrap It Up,
Inc., 548 F.3d 1348, 1351 (11th Cir. 2008).
First, Mock claims that the district court erred in reducing the hourly rates
sought by his attorneys. Specifically, he claims the district court erred by applying
Orlando (rather than Dallas) market rates, in determining Orlando rates, and by
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reducing by 40% the hourly rate for the lead lawyers on the case. The lower
court’s findings on these points were not clearly erroneous. The court correctly
applied the law, noting the “general rule . . that the relevant market for purposes of
determining the reasonable hourly rate is the place where the case is filed,” and
placing the burden on Mock to “show a lack of attorneys practicing in that place
who are willing and able to handle his claims.” ACLU of Ga. v. Barnes, 168 F.3d
423, 437 (11th Cir. 1999) (quotation marks omitted). The lower court then made
the factual finding that Mock had not met this burden. And while it is certainly
possible to quibble with some of the court’s findings, such as those regarding the
hourly rates for lawyers of comparable experience or that Mock’s staffing was
“top-heavy,” the lower court provided a reasoned basis for each finding,
grounding each in appropriate forms of evidence. We therefore affirm its findings
with respect to the hourly rates of Mock’s counsel.
On a related point, though Mock argues that the court erred because it failed
to discuss four of the twelve Johnson factors in setting hourly rates, this Court has
been clear that district courts may, but are not required to, consider those factors
since many “usually are subsumed within the initial calculation of hours
reasonably expended at a reasonable hourly rate.” ADA v. Neptune Designs, Inc.,
469 F.3d 1357, 1359 n.1 (11th Cir. 2006); see Johnson v. Ga. Highway Express,
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Inc., 488 F.2d 714, 717–19 (5th Cir. 1974), abrogated on other grounds by
Blanchard v. Bergeron, 489 U.S. 87, 109 S. Ct. 939 (1989) (enumerating the
twelve Johnson factors). The lower court clearly “carefully considered” the
Johnson factors as a whole and that is sufficient.
Second, Mock claims that the district court erred by reducing the total hours
billed by 20% when it found “a significant amount of redundancy and duplication,
‘coordination’ among counsel, and indivisible block billing,” leaving it “with a
strong and abiding sense that the time and cost claimed is simply too large.”
Though we require precision from a district court excluding hours, we similarly
require that “both the proof of the hours spent in litigation and any corresponding
objections posed be voiced with a similar exactitude.” Duckworth v. Whisenant,
97 F.3d 1393, 1397 (11th Cir. 1996); see Norman v. Hous. Auth. of City of
Montgomery, 836 F.2d 1292, 1301 (11th Cir. 1988) (“As the district court must be
reasonably precise in excluding hours thought to be unreasonable or unnecessary,
so should be the objections and proof from fee opponents.”). The lower court
described Mock’s final fee submission as “a disappointing hodge-podge of the
previously-filed applications without categorical uniformity or organization.”
Though the court’s explanation for its 20% across-the-board cut in the total hours
claimed was somewhat vague, it was not clearly erroneous given the volume and
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the documented disorganization of Mock’s submissions.
Third, Mock argues that the district court clearly erred by reducing the total
award by 25% for Mock’s lack of success in obtaining overall relief. Mock was
awarded $225,809.78 in damages—13.28% of the $1.7 million he sought. And, as
a matter of law, that discrepancy was appropriate for the district court to make its
“primary consideration” for evaluating Mock’s success. Farrar v. Hobby, 506 U.S.
103, 114, 113 S. Ct. 566, 575 (1992) (quotation marks omitted); see also Popham
v. City of Kennesaw, 820 F.2d 1570, 1580–81 (11th Cir. 1987) (permitting the
district court to compare “the amount of damages a plaintiff requested with the
amount o damages he received” as a basis for finding partial success and reducing
the fee award). We therefore conclude that the lower court did not clearly err in
making this reduction in the total award.
Fourth, Mock claims that the district court erred by not awarding travel
expenses and full transcript fees in its calculation of attorneys’ costs. Though
plaintiffs may, in addition to fees, recover the “costs of the action” in ADEA
cases, 29 U.S.C. §§ 216(b), 626(b), this Court has clearly held that cost recovery is
limited by 28 U.S.C. § 1920. Glenn v. General Motors Corp., 841 F.2d 1567,
1575 (11th Cir. 1988) (holding that district court erred in awarding, under 29
U.S.C. § 216(b), fees that exceeded those permitted by 28 U.S.C. § 1920); see 28
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U.S.C. § 1920 (allowing costs for fees of the clerk and marshal, for transcripts, for
printing and witnesses, for making copies, for docket fees, and for compensation
of court-appointed experts and interpreters). Moreover, the district court did not
err in refusing to award these expenses as part of Mock’s attorneys’ fees, rather
than costs. With respect to the travel expenses, it follows from the district court’s
finding that outside-market counsel was unnecessary, that the outside-market
counsel’s travel and meal expenses—which Mock would not have incurred had he
hired local counsel—should not be awarded as part of Mock’s attorneys’ fees.
Also, the trial transcript claim fails because it appears that the district court did, in
fact, award the full amount of the transcript fees Mock requested. In its fee award
chart, the lower court indicated that the $5,247.64 requested for transcripts was
included within the $6,583.54 provided for “Deposition Fees.” Thus, we affirm on
these costs claims.
Fifth, Mock claims that the district court erred in denying both his request to
file a reply brief supporting his fee petition and his request for discovery of Bell’s
attorney fee records. On the reply request claim, the district court possessed
almost complete discretion to disallow the filing of a reply brief under the court’s
local rules, and we affirm its decision to do so here. See M.D. Fla. Local Rule
3.01(c) (stating that “[n]o party shall file any reply” to an opponent’s response to a
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motion “unless the Court grants leave”). With respect to the denial of Mock’s
request for discovery, we have generally expressed doubt about “whether the
number of hours spent on a case by defense counsel is relevant to a determination
of the reasonable fees for plaintiffs’ attorneys.” Henson v. Columbus Bank &
Trust Co., 770 F.2d 1566, 1574 (11th Cir. 1985); Norman, 836 F.2d at 1305 n.3
(“[T]he time expended by opposing counsel is seldom relevant to a determination
of hours reasonably expended on many tasks . . . .”). And, though we have before
held that a district court abused its discretion when it refused to allow the
prevailing plaintiff to conduct discovery on the defendant’s attorneys’ fees,
Henson, 770 F.2d at 1575, we see no reason to do so here given the lower court’s
expressed ability to decide the reasonableness of requested hours without it. The
lower court specifically stated that “[n]o further briefing or discovery is required
to inform the Court on the issues.” And, although Mock argues that evidence of
Bell’s attorneys’ fees and expenses is relevant to demonstrate the contentiousness
of this litigation, the district court was clearly aware of Bell’s aggressive litigation
posture, and accounted for this by reducing the lodestar by 25% rather than by
50%. We therefore affirm the lower court’s denials of these two requests by
Mock.
Sixth, and finally, Mock claims that the district court clearly erred by failing
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to award interest on his costs and fees. This raises two issues: one of interest on
costs, and one of interest on fees. Without question, interest on taxable costs
accrues from the date of the original damages judgment. See BankAtlantic v.
Blythe Eastman Paine Webber, Inc., 12 F.3d 1045, 1052 (11th Cir. 1994); see also
Ga. Ass’n of Retarded Citizens v. McDaniel, 855 F.2d 794, 797–99 (11th Cir.
1988) (holding that a district court’s award of costs bears interest from the date of
the original judgment). And, though we have not specifically addressed the issue
of when interest begins to accrue on an award of attorneys’ fees under 29 U.S.C.
§ 216(b), we find clear guidance in this Court’s precedent.
In BankAtlantic, we held that, where attorneys’ fees and costs are awarded
as part of discovery violation sanctions, the interest on those fees runs from the
date of the sanctions order because the order is “a ‘judgment’ for purposes of the
accrual of interest pursuant to section 1961.” 12 F.3d at 1053. Notably,
BankAtlantic’s holding rests on a plain text reading of § 1961’s use of the word
“judgment,” the same word in the same provision at issue here. Id. Thus,
awarding interest from the date of the final judgment on the merits is consistent
with BankAtlantic as well as with a majority of our sister circuits. See Associated
Gen. Contractors of Ohio, Inc. v. Drabnik, 250 F.3d 482, 495 (6th Cir 2001);
Friend v. Kolodzieczak, 72 F.3d 1386, 1391–92 (9th Cir. 1995); Jenkins by Agyei
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v. Missouri, 931 F.2d 1273, 1275–77 (8th Cir. 1991); Mathis v. Spears, 857 F.2d
749, 760 (Fed. Cir. 1988); Copper Liquor, Inc. v. Adolph Coors Co., 701 F.2d
542, 544–45 (5th Cir. 1983), overruled on other grounds by Int’l Woodworkers of
Am., v. Champion Int’l Corp., 790 F.2d 1174, 1175–76 (5th Cir. 1986) (en banc).
We therefore affirm the lower court’s findings with respect to Mock’s
claims concerning hourly rates, total hours, the total fee award, attorneys’ costs,
and the requests for discovery and reply. However, we reverse and remand this
case for the recalculation and award of interest on costs and fees from the date of
final judgment on the merits.
AFFIRMED IN PART, AND REVERSED AND REMANDED IN PART
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