David Thompson v. Regions Security Services, Inc.

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NOT FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

Nos. 24-11998, 24-14028

Non-Argument Calendar

____________________

DAVID THOMPSON,

Plaintiff-Appellee,

versus

REGIONS SECURITY SERVICES, INC.,

a Florida corporation,

Defendant-Appellant.

____________________

Appeals from the United States District Court

for the Southern District of Florida

D.C. Docket No. 0:20-cv-62152-WPD

____________________

Before ROSENBAUM, JILL PRYOR, and BRASHER, Circuit Judges.

PER CURIAM:

Regions Security Services, Inc., appeals the district court’s

grant of summary judgment in favor of David Thompson, on his

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2 Opinion of the Court 24-11998

claim that Regions manipulated Thompson’s regular rate of pay to

avoid paying overtime compensation required by the Fair Labor

Standards Act (“FLSA”), 29 U.S.C. § 207(a)(1). Regions also appeals

the court’s decision to award Thompson $94,627.50 in attorney’s

fees, contending that he was not a “prevailing party,” that the

award is excessive and unreasonable, and that he is not entitled to

recover mediation costs and fees. After careful review, we affirm.

I. Factual Background

The relevant facts are brief and essentially undisputed.

From 2015 to 2020, Thompson worked for Regions as a security

guard. He usually worked 40 hours or less at a wage of $13.00 per

hour, plus an overtime wage of $19.50 per hour (one-and-a-half

times his $13.00 rate). In 2019, Thompson accepted Regions’s offer

to work not less than 60 hours per week at a reduced wage of

$11.15 per hour, and a corresponding overtime wage of $16.73 per

hour (again, time-and-a-half). That hourly wage was less than the

$12 per hour that Regions paid him when he started. Thompson

received the reduced wage from July 22, 2019, through July 5, 2020,

when Regions was scheduling him for at least 20 hours of overtime.

Once Regions stopped scheduling Thompson for overtime in July

2020, it restored his non-overtime wage to $13 per hour.

II. Procedural History

Thompson sued Regions for violating the FLSA’s overtime

provisions. He claimed that Regions reduced his regular wage “to

an artificially low rate,” from $13.00 to $11.15 per hour, to

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24-11998 Opinion of the Court 3

effectively nullify his overtime compensation during the weeks he

was scheduled to work 60 hours.

The district court granted judgment on the pleadings for Re-

gions, but Thompson appealed, and we vacated and remanded for

further proceedings. Thompson v. Regions Sec. Servs., Inc., 67 F.4th

1301, 1311–12 (11th Cir. 2023). We held that Thompson plausibly

alleged that Regions fluctuated Thompson’s non-overtime hourly

rate “as a device to avoid paying him overtime.” See id. at 1308–11.

We explained that, while employers could lawfully reduce an em-

ployee’s non-overtime hourly rate, the reduction could not be “jus-

tified by the length of [the] workweek” alone. Id. at 1310.

A. Summary Judgment

On remand, the parties filed cross-motions for summary

judgment. The district court granted Thompson’s motion as to li-

ability, denied it as to damages, and denied Regions’s motion. In

relevant part, the court concluded that Regions had offered no ev-

idence that it based the reduction of Thompson’s pay on legitimate

factors other than the number of hours in his workweek, which

was not a permissible reason under our decision on appeal. Thus,

the court concluded that undisputed facts established Regions was

attempting to circumvent the FLSA overtime provisions by manip-

ulating Thompson’s regular rate.

Following the district court’s summary-judgment order,

Thompson filed notice that it had accepted Regions’s Offer of Judg-

ment under Rule 68(c). Regions’s offer stated that it would allow

“judgment to be entered . . . in the amount of $5,650.82, in full

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4 Opinion of the Court 24-11998

satisfaction of all wage claims and liquidated damages.” In the of-

fer, Regions noted that the court had “determine[d] that Regions is

liable to Thompson for unpaid overtime hours due,” leaving only

damages to be determined, and that the offer was “not an admis-

sion or confession of liability by Regions, who retains the right to

appeal the Court’s determination of liability.” The offer also pro-

vided that it was “made without prejudice to Thompson’s right to

seek attorney’s fees and costs by timely motion in accordance with

29 U.S.C. § 216(b).”

Consistent with Regions’s offer, the district court entered fi-

nal judgment in favor of Thompson in the amount of $5,650.82,

representing unpaid overtime compensation and liquidated dam-

ages. The court explained that it had reviewed whether the settle-

ment as embodied in Thompson’s acceptance of the Rule 68 offer

was “fair and reasonable” under Lynn’s Food Stores, Inc. v. United

States, 679 F.2d 1350 (11th Cir. 1981), and found that it was. The

court took “no position on what appeal rights” Regions retained.

The court also “retain[ed] jurisdiction to determine [Thompson’s]

reasonable attorney’s fees and costs” under 29 U.S.C. § 216(b). Re-

gions filed an appeal, which was docketed as appeal number 24-

11998. Regions also obtained a stay of execution of the judgment

by submitting a supersedeas bond.

B. Attorney’s Fees

After that, Thompson filed a motion for attorney’s fees and

non-taxable costs, and Regions responded in opposition. The

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district court referred the matter to a magistrate judge, who issued

a report and recommendation.

In the R&R, the magistrate judge recommended that

Thompson be granted reasonable attorney’s fees as a “prevailing

party,” rejecting Regions’s various arguments to the contrary. The

magistrate judge also reviewed the fee motion and its supporting

documentation and calculated a lodestar figure of $94,627.50, find-

ing that the requested hours and fees were broadly reasonable,

with some minor tweaking. The magistrate judge rejected Re-

gions’s arguments for reducing the lodestar in view of the results

obtained.

Regions objected, maintaining that Thompson was not a

“prevailing party” under the FLSA for several reasons, and that the

attorney’s fees award was excessive, among other arguments. The

district court overruled Regions’s objections and adopted the fee

award reflected in the R&R. Regions filed a separate notice of ap-

peal of the attorney’s fees award, which was docketed as appeal

number 24-14028. The merits and attorney’s fees appeals have

been consolidated for disposition.

III. Jurisdiction

We start with our appellate jurisdiction, which the parties

briefed in supplemental filings. We have a sua sponte obligation to

consider our appellate jurisdiction, which we review de novo.

United States v. Lopez, 562 F.3d 1309, 1311 (11th Cir. 2009).

In general, “a party has no standing to appeal an order or

judgment to which he consented.” Hofmann v. De Marchena Kaluche

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6 Opinion of the Court 24-11998

& Asociados, 657 F.3d 1184, 1187 (11th Cir. 2011). “But there is an

exception to that rule: when a party enters a consent judgment and

expressly preserves the right to appeal a previously contested issue,

the party retains standing to appeal.” Perez v. Owl, Inc., 110 F.4th

1296, 1303 (11th Cir. 2024); see also Dorse v. Armstrong World Indus.,

Inc., 798 F.2d 1372, 1376 (11th Cir. 1986) (holding that the appellant

could appeal where the settlement “expressly recognized” the

party’s intent to appeal a prior ruling).

Here, we have no genuine doubt of our appellate jurisdic-

tion. Similar to the settlement in Perez, Regions’s Rule 68(c) offer

of judgment, accepted by Thompson, expressly stated that it was

“not an admission or confession of liability by Regions, who retains

the right to appeal the Court’s determination of liability.” To be

sure, the district court did not affirm that reservation, and instead

took “no position on what appeal rights” Regions retained. But the

accepted offer, which served as the basis for the court’s entry of

final judgment, expressly recognized Regions’s intent to appeal the

court’s finding that Regions was liable for FLSA overtime viola-

tions. See Dorse, 798 F.2d 1376–77. “We see no reason why that

intent should be frustrated in this case.” Id. at 1377.

We reject Thompson’s contention that the settlement ren-

dered this case moot. True, generally speaking, “settlement be-

tween the parties in litigation renders the case moot.” Yunker v.

Allianceone Receivables Mgmt., Inc., 701 F.3d 369, 372 (11th Cir.

2012). In Yunker, we held that an accepted Rule 68 offer of judg-

ment mooted the case despite an express reservation of appeal

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24-11998 Opinion of the Court 7

rights. Id. at 372. We noted that, despite the purported reserva-

tion, the parties had “entered into a final, unconditional monetary

settlement,” and there was no indication that the defendant’s suc-

cess on appeal would “affect the underlying settlement and judg-

ment.” Id. at 374 & n.3. So we were unable to conclude that either

party had “a continuing financial stake in this particular litigation,”

particularly since the defendant had already paid the plaintiff under

the settlement. See id.

Yunker is materially different from this case. As in Dorse,

which Yunker distinguished, there’s no indication here “that the

parties entered into a final, unconditional monetary settlement,

whereby the defendant’s success on appeal would not affect the un-

derlying settlement and judgment.” Id. at 374 n.3. Regions offered

to resolve the issue of damages only after the court determined that

Regions was liable for overtime violations, and Regions expressly

conditioned the offer on its ability to appeal the liability determina-

tion, meaning Regions’s success on appeal would affect the under-

lying settlement and judgment. See id. And Regions obtained a

stay of execution of the judgment pending appeal after depositing

the funds with the court, so the parties have a continuing financial

stake in the outcome. See id. at 374. The case is not moot.

IV. Discussion

Still, that the appeal isn’t moot doesn’t mean it has merit.

Thompson, which is both binding precedent and law of the case,

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8 Opinion of the Court 24-11998

governs our decision. 1 And Thompson makes clear that a reduction

in an employee’s non-overtime hourly wage must be justified by

factors other than the number of hours the employee worked.

Otherwise, it will be considered an impermissible device to evade

the FLSA’s overtime-pay requirements. Because the record estab-

lishes that the length of Thompson’s workweek was the sole basis

for reducing his non-overtime wage, the district court properly

granted summary judgment in Thompson’s favor.

A. Relevant FLSA Principles

Under the FLSA, when an employee works more than forty

hours in a week, he is entitled to overtime compensation for any

excess hours “at a rate not less than one and one-half times the reg-

ular rate at which he is employed.” 29 U.S.C. § 207(a)(1). An em-

ployee’s “regular rate,” which determines the overtime rate, “is not

an arbitrary label chosen by the parties; it is an actual fact.” Walling

v. Youngerman-Reynolds Hardwood Co., 325 U.S. 419, 424 (1945).

“[T]he regular rate refers to the hourly rate actually paid to the em-

ployee for the normal, non-overtime workweek for which he is

employed.” Id.

On appeal in Thompson, the parties disputed whether

Thompson’s “regular rate” was $13.00 or $11.15 per hour.

1 See Welch v. United States, 958 F.3d 1093, 1098 (11th Cir. 2020) (“Under the

law-of-the-case doctrine, this Court is generally bound by a prior appellate de-

cision of the same case and is precluded from revisiting issues that were de-

cided explicitly or by necessary implication in [the] prior appeal.”) (quotation

marks omitted).

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24-11998 Opinion of the Court 9

Thompson alleged that his established non-overtime rate was

$13.00 per hour, except during the period when he was regularly

scheduled for overtime. Regions maintained, as it does in this ap-

peal, that the parties freely contracted for the reduced regular rate

of $11.15, which otherwise satisfied statutory minimums.

We recognized in Thompson that “an employer can lawfully

reduce an employee’s non-overtime rate in some situations.”

Thompson, 67 F.4th at 1306. Indeed, the FLSA generally protects

the “freedom of contract” between employer and employee to set

the regular rate at any point above the statutory minimums. Id.

But this freedom “‘does not include the right to compute the regu-

lar rate in a wholly unrealistic and artificial manner so as to negate

the statutory purposes’ of the FLSA.” Id. (quoting Walling v.

Helmerich & Payne, 323 U.S. 37, 42 (1944)). In other words, employ-

ers “can lawfully reduce an employee’s weekly average rate, as

long as they do not do so as a work-around of the FLSA’s overtime-

pay requirements.” Id. at 1310.

According to Thompson, “[t]he difference between a permis-

sible reduction in an employee’s non-overtime hourly rate and an

impermissible one comes down to whether the rate change ‘is jus-

tified by no factor other than the number of hours’ an employee

worked.” Id. (quoting 29 C.F.R. § 778.327(b)). In other words, an

employer cannot “play[] with an employee’s hours and rates to ef-

fectively avoid paying time-and-a-half for an employee’s overtime

hours.” Id. at 1309. “Otherwise, an employer could use ‘simple

arithmetic’ to lower an employee’s rate and increase his hours so

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10 Opinion of the Court 24-11998

that he could never earn time-and-a-half pay—‘no matter how

many hours he worked.’” Id. (quoting 29 C.F.R. § 778.327(a)).

That prohibition advances the purposes of the FLSA, which are “to

spread employment by placing financial pressure on the em-

ployer,” and “to compensate employees” for the burden of a work-

week in excess of forty hours. Id. at 1309–10 (quotation marks

omitted). So “[w]hen a reduction in an employee’s non-overtime

hourly rate is justified by the length of his workweek, ‘the device is

evasive and the rate actually paid in the shorter or non[-]overtime

week is his regular rate for overtime purposes in all weeks.’” Id. at

1310 (quoting 29 U.S.C. § 778.327(b)).

B. Application

Applying these rules at the pleading stage, we held that

Thompson “plausibly alleged that [Regions] used prohibited arith-

metic” by “fluctuat[ing] his non-overtime hourly rate as a device to

evade paying him overtime.” Thompson, 67 F.4th at 1310–11. We

noted that, under his reduced wage, Thompson earned “only $.50

more than he would have earned if he were paid his former $13.00

non-overtime hourly rate for all sixty hours of work,” and that Re-

gions restored Thompson’s wage to $13.00 per hour once it

stopped scheduling him for overtime. Id. at 1310. These allega-

tions, we explained, supported a reasonable inference that Regions

“slashed Thompson’s non-overtime hourly rate to avoid paying

him an overtime rate equal to one-and-a-half times his established

$13.00 rate.” Id.

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Still, in vacating and remanding, we recognized that it was

“possible that [Regions] reduced Thompson’s weekly average rate

for a different and permissible reason.” Id. at 1310. Thus, as the

district court correctly observed, the essential question before the

court on remand was whether Regions reduced Thompson’s non-

overtime wage “because of legitimate ‘factor[s] other than the

number of hours’ in his workweek.” Id. at 1311 (quoting 29 C.F.R.

§ 778.327(b)).

And here, the district court properly granted summary judg-

ment. Undisputed evidence shows that Regions paid Thompson

$13 per hour in 2018 when he was working non-overtime work-

weeks. It reduced his pay to $11.15 per hour only when Thompson

was working sixty-hour weeks. Then, after Regions stopped sched-

uling Thompson for regular overtime, it restored his hourly rate to

$13 per hour. These facts, we have said, are sufficient to give rise

to a reasonable inference that Regions “used the fluctuation in

Thompson’s weekly average rate as a device to avoid paying over-

time compensation at one-and-a-half times the non-overtime

hourly rate that Thompson earned during the weeks he did not

work overtime hours.” Id. at 1311. And Regions does not clearly

identify or rely on any “legitimate factor other than the number of

hours in his workweek” to justify the reduction of Thompson’s

non-overtime wage. Id.

Instead, Regions insists that it did not violate the FLSA since

Thompson freely contracted to and accepted the lower hourly rate

of $11.15 because he wanted to work more hours in a workweek

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12 Opinion of the Court 24-11998

with the same employer, rather than with two separate employ-

ers. 2 But “the question of whether the employer has violated the

FLSA does not hinge on contracts or agreements with the em-

ployee” because “employees cannot contract out of their FLSA

rights.” Wethington v. City of Montgomery, 935 F.2d 222, 229 (11th

Cir. 1991). And an employer, by contract or other device, can’t

“nullify[] the FLSA’s overtime provisions.” Thompson, 67 F.4th at

1310. 3

We’ve already concluded that Regions’s payment scheme—

insofar as it was justified solely by the length of his workweek—

used “prohibited arithmetic” as a device to evade paying Thomp-

son overtime. Id. at 1310–11. Because Regions failed to submit

evidence of any factor other than the number of hours in Thomp-

son’s scheduled workweek that caused it to reduce his pay, the

2 Regions repeatedly characterizes the rate reduction as the product of a “ne-

gotiation” but fails to identify any record evidence to support that claim. At

best, it offers evidence that the reduced-rate arrangement made economic

sense for Thompson, as an alternative to secondary employment. But Re-

gions’s own CEO testified that he “did not negotiate that rate reduction with

Thompson.” Thompson likewise testified that he was presented with a “take-

it-or-leave-it” offer.

3 “Recognizing that there are often great inequalities in bargaining power be-

tween employers and employees, Congress made the FLSA’s provisions man-

datory; thus, the provisions are not subject to negotiation or bargaining be-

tween employers and employees.” Lynn’s Food Stores, Inc. v. U.S. Dep’t of Labor,

679 F.2d 1350, 1352 (11th Cir. 1982).

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24-11998 Opinion of the Court 13

court properly granted summary judgment in favor of Thompson.

See id.

We reject the remainder of Regions’s arguments as inappo-

site or inconsistent with Thompson. Regions relies on the Ninth

Circuit’s decision in Parth, a series of FLSA decisions by the Su-

preme Court in the 1940s 4, and 29 C.F.R. § 778.500. But Parth is

not binding, of course. And in any case, it is readily distinguishable

because there was no indication the payment plan at issue in Parth

violated implementing guidance issued by the Department of La-

bor, unlike here. Compare Parth, 630 F.3d at 803 (“The regulations

set out numerous examples by which employers may not avoid

overtime, none of which are violated by this plan.”), with Thomp-

son, 67 F.4th at 1310–11 (concluding that the allegations raised an

inference that Regions violated 29 C.F.R. § 778.327). Plus, the

panel in Thompson considered Parth and the Supreme Court deci-

sions, so they present no grounds for applying a different analysis

here. As for § 778.500, that Regions did not violate a separate reg-

ulatory prohibition says nothing about whether its conduct vio-

lated the “non-circumvention rule” embodied in 29 C.F.R. §

778.327. See Thompson, 67 F.4th at 1309.

Regions’s bare assertion that our discussion about § 778.327

was “dicta” is unconvincing. Our reliance on § 778.327 was neces-

sary to our conclusion that Thompson stated a plausible claim

4 Walling v. A.H. Belo Corp., 316 U.S. 624 (1942), Walling v. Helmerich & Payne,

323 U.S. 37 (1944), Walling v. Youngerman-Reynolds, 325 U.S. 419 (1945), and

Bay Ridge Operating Co. v. Aaron, 334 U.S. 446 (1948).

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14 Opinion of the Court 24-11998

under the FLSA, so it can’t accurately be characterized as dicta. See

United States v. Gillis, 938 F.3d 1181, 1198 (11th Cir. 2019) (“[D]icta

is defined as those portions of an opinion that are not necessary to

deciding the case then before us.”) (quotation marks omitted).

V. Attorney’s Fees & Costs

Next, Regions challenges the district court’s order awarding

Thompson $94,627.50 in attorney’s fees and $858.75 in mediation

costs under 29 U.S.C. § 216(b). Regions maintains that Thompson

lacked prevailing-party status, that the fee award was excessive and

unreasonable, and that mediation costs are not recoverable.

We review de novo whether a plaintiff is a “prevailing

party.” Church of Scientology Flag Serv., Inc. v. City of Clearwater, 2

F.3d 1509, 1513 (11th Cir. 1993). And we review a district court’s

award of attorney’s fees for an abuse of discretion. Id.

A. Prevailing-party Status

Section 216(b) provides that the court in an FLSA action

“shall, in addition to any judgment awarded to the plaintiff or plain-

tiffs, allow a reasonable attorney’s fee to be paid by the defendant,

and costs of the action.” 29 U.S.C. § 216(b). “The FLSA plainly

requires that the plaintiff receive a judgment in his favor to be en-

titled to attorney’s fees and costs.” Dionne v. Floormasters Enters.,

Inc., 667 F.3d 1199, 1206 (11th Cir. 2012).

To be considered a prevailing party, “there must be a court-

ordered material alteration of the legal relationship of the parties.”

Smalbein v. City of Daytona Beach, 353 F.3d 901, 904 (11th Cir. 2003)

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24-11998 Opinion of the Court 15

(cleaned up); see Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t

of Health & Human Res., 532 U.S. 598, 603–04 (2001). “In other

words, there must be: (1) a situation where a party has been

awarded by the court at least some relief on the merits of his claim

or (2) a judicial imprimatur on the change in the legal relationship

between the parties.” Smalbein, 353 F.3d at 905 (cleaned up). Thus,

one can be a prevailing party “under an enforceable judgment on

the merits or under a court-ordered consent decree,” which has

“the necessary judicial approval and oversight to be considered an

alteration in the legal relationship of the parties.” Id.

In addition, we have recognized that “judicial action with

sufficient judicial imprimatur other than a judgment on the merits

or a court-ordered consent decree may allow for an award of attor-

ney’s fees.” Id. Even without a judgment or formal consent de-

cree, “a district court may still award attorney’s fees to the prevail-

ing party as long as: (1) it has incorporated the terms of the settle-

ment into the final order of dismissal or (2) it has explicitly retained

jurisdiction to enforce the terms of the settlement.” Id. (citing Am.

Disability Ass’n v. Chmielarz, 289 F.3d 1315, 1320 (11th Cir. 2002)).

In either scenario, “[a] formal consent decree is unnecessary be-

cause the incorporation of the settlement into a court order or the

explicit retention of jurisdiction over the terms of the settlement

are the ‘functional equivalent of an entry of a consent decree.’” Id.

Regions advances several grounds for concluding that

Thompson is not a prevailing party. We reject each one.

1. Merits

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16 Opinion of the Court 24-11998

Regions first contends that the district court erroneously

granted summary judgment on its liability under the FLSA. But as

we’ve explained, Regions is wrong about that. Because the court

did not err, we reject this argument.

2. Rule 68

Next, Regions contends that a Rule 68 judgment awarding

monetary damages is not a judicially sanctioned change in the legal

relationship of the parties because the entry of a Rule 68 judgment

is “ministerial” rather than “discretionary.”

Rule 68(a) provides that “a party defending against a claim

may serve on an opposing party an offer to allow judgment on

specified terms, with the costs then accrued.” Fed. R. Civ. P. 68(a).

As relevant here, Rule 68(c) permits a party whose “liability to an-

other has been determined” to “make an offer of judgment” before

the “extent of liability” is determined. Fed. R. Civ. P. 68(c). If the

offer is accepted, “[t]he clerk must then enter judgment.” Fed. R.

Civ. P. 68(a).

Our precedent recognizes that a Rule 68 judgment may con-

fer prevailing-party status. In Utility Automation, we considered

whether a plaintiff who accepted an offer of judgment under Rule

68 qualified as a prevailing party under a contractual attorney’s fees

provision. Util. Automation 2000, Inc. v. Choctawhatchee Elec. Co-op.,

Inc., 298 F.3d 1238, 1248–49 (11th Cir. 2002). We explained that the

Supreme Court’s rationale in Buckhannon, though it did not “spe-

cifically mention Rule 68 offers of judgment,” was “equally appli-

cable in the present context.” Id. at 1248. We acknowledged that

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24-11998 Opinion of the Court 17

the court “exercises little substantive review over a Rule 68 offer”

and “mechanically enters judgment” if the offer is accepted, unlike

a consent decree. Id. But “[m]ore importantly,” we reasoned that

“an accepted offer has the necessary judicial imprimatur of the

court, in the crucial sense that it is an enforceable judgment against

the defendant.” Id. (cleaned up). “Thus, unlike a defendant’s vol-

untary change in conduct or a purely private settlement resulting

in a dismissal, a Rule 68 judgment represents a judicially sanctioned

change in the relationship between the parties.” Id. (quotation

marks omitted); see also Smalbein, 353 F.3d at 905 (“[J]udicial action

with sufficient judicial imprimatur other than a judgment on the

merits or a court-ordered consent decree may allow for an award

of attorney’s fees.”).

So in Utility Automation, we concluded that the plaintiff was

the prevailing party in its suit to enforce the contract because the

“judgment included not only $45,000 in damages, but also a thirty-

day non-competition injunction (a remedy specifically contem-

plated in . . . the contract),” which were “subject to the court’s

power to enforce.” 298 F.3d at 1248–49. A concurring opinion ob-

served that the majority opinion “may aim to resolve the question

of whether accepting any Rule 68 offer—even one not including

injunctive relief—renders a plaintiff a ‘prevailing party,’” and in-

stead suggested narrower grounds for finding prevailing-party sta-

tus, namely that the judgment ordered discretionary injunctive re-

lief. See id. at 1249–51 (Marcus, J., concurring).

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18 Opinion of the Court 24-11998

Here, Thompson qualifies as a prevailing party. After the

district court determined that Regions was liable for violating the

FLSA’s overtime provisions, Regions offered, and Thompson ac-

cepted, entry of judgment “in the amount of $5,650.82, in full sat-

isfaction of all wage claims and liquidated damages.” The offer’s

terms make clear that it was based on the adverse liability determi-

nation, which Regions intended to challenge on appeal—i.e., fol-

lowing a final, enforceable judgment incorporating that ruling.

And the offer was made “without prejudice” to Thompson’s right

to seek attorney’s fees under § 216(b), which indicates that the par-

ties did not intend for the Rule 68 judgment to cut off entitlement

to attorney’s fees as a prevailing party. Then, the court “incorpo-

rate[d] the terms of the settlement into the final order of dismissal,”

Chmielarz, 289 F.3d at 1320, awarding $5,650.82 in unpaid overtime

compensation and liquidated damages, while retaining jurisdiction

to award reasonable attorney’s fees.

Because the district court’s Rule 68 judgment awarded

Thompson sought-after relief that is “subject to the court’s power

to enforce,” the judgment “has the necessary judicial imprimatur

of the court, in the crucial sense that it is an enforceable judgment

against the defendant.” Util. Automation, 298 F.3d at 1248 (cleaned

up); see Smalbein, 353 F.3d at 907 (plaintiff was prevailing party

where he sought and received monetary damages for his claims un-

der a court-approved settlement). Not only that, but the Rule 68

judgment was based on a judicial ruling of merits liability, so the

judgment was functionally equivalent to one on the merits, subject

to Regions’s right to appeal. We also note that the court reviewed

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24-11998 Opinion of the Court 19

the terms of the Rule 68 settlement and determined that it was a

“fair and reasonable” resolution of the FLSA dispute under Lynn’s

Food Stores.5 So despite the lack of injunctive relief, the record

shows that the Rule 68 judgment in this case, like the one in Utility

Automation, represents a judicially sanctioned change in the rela-

tionship between the parties. See Util. Automation, 298 F.3d at 1248.

Regions complains that the district court failed to fulfill its

ministerial function under Rule 68, and that the court changed the

terms of the offer to not preserve Regions’s right to appeal. But as

Regions acknowledges, any error in that respect is harmless be-

cause we have already concluded that Regions preserved its right

to appeal, and “parties cannot create federal subject matter juris-

diction by contract” in any event. Walker v. Life Ins. Co. of N. Am.,

59 F.4th 1176, 1195, 16 (11th Cir. 2023). Regions doesn’t suggest

that the district court’s judgment omitted any other term from its

Rule 68 offer.

5 In Lynn’s Food Stores v. United States, we stated,

Other than a section 216(c) payment supervised by the Depart-

ment of Labor, there is only one context in which compro-

mises of FLSA back wage or liquidated damage claims may be

allowed: a stipulated judgment entered by a court which has

determined that a settlement proposed by an employer and

employees, in a suit brought by the employees under the

FLSA, is a fair and reasonable res[o]lution of a bona fide dis-

pute over FLSA provisions.

679 F.2d 1350, 1355 (11th Cir. 1982).

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20 Opinion of the Court 24-11998

3. Stay of Execution

Finally, Regions contends that Thompson is not a prevailing

party because execution of the judgment has been stayed pending

this appeal. But nothing prevented the district court from award-

ing attorney’s fees pending the appeal. See, e.g., Vasconcelo v. Miami

Auto Max, Inc., 981 F.3d 934, 939–40 (11th Cir. 2020) (holding that

attorney’s fees are collateral to the merits in an FLSA action, and

do not prevent judgment on the merits from being final). And in

any case, because we have resolved the merits appeal against Re-

gions, its argument in this regard is effectively moot.

For these reasons, the district court did not err in finding that

Thompson was a prevailing party under § 216(b).

B. Reasonableness of Attorney’s Fees

Regions next challenges the reasonableness of the attorney’s

fees award. The key metric by which a motion for attorney’s fees

is evaluated is “reasonableness.” See City of Burlington v. Dague, 505

U.S. 557, 562 (1992). A “reasonable” fee award is arrived at by first

calculating the “lodestar.” Id. The lodestar is the product of “the

number of hours reasonably expended on the litigation times a rea-

sonable hourly rate.” Pennsylvania v. Delaware Valley Citizens’ Coun-

cil for Clean Air, 478 U.S. 546, 564 (1986) (quotation marks omitted).

We presume the lodestar figure represents a reasonable fee, but it

can be adjusted upward or downward based on other considera-

tions, including the results obtained. Hensley v. Eckerhart, 461 U.S.

424, 434 (1983).

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24-11998 Opinion of the Court 21

The fee applicant bears the burden of documenting the ap-

propriate hours and hourly rates. Norman v. Hous. Auth. of City of

Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988). We have said

that fee applicants must exercise “billing judgment,” excluding

from their fee requests excessive, redundant, or otherwise unnec-

essary hours. Am. Civil Liberties Union of Ga. v. Barnes, 168 F.3d 423,

428 (11th Cir. 1999). “If fee applicants do not exercise billing judg-

ment, courts are obligated to do it for them, to cut the amount of

hours for which payment is sought, pruning out those that are ex-

cessive, redundant, or otherwise unnecessary.” Id. (quotation

marks omitted). The court may conduct an hour-by-hour review,

or, if the fee application is voluminous and such a review would be

wasteful, the court may make an across-the-board cut. Loranger v.

Stierheim, 10 F.3d 776, 783 (11th Cir. 1994). Either way, “the district

court must articulate the decisions it made, give principled reasons

for those decisions, and show its calculation,” so as to permit mean-

ingful review. In re Home Depot Inc., 931 F.3d 1065, 1089 (11th Cir.

2019). “The level of specificity required by district courts is propor-

tional to the specificity of the fee opponent’s objections.” Id.

Also, because civil-rights suits sometimes involve common

facts and related legal theories, the district court should not reduce

a plaintiff’s attorney’s hours merely because the plaintiff won un-

der some theories and not others. Villano v. City of Boynton Beach,

254 F.3d 1302, 1307 (11th Cir. 2001). “Whether hours were reason-

ably expended on litigation is a different question than whether

hours were necessary to the litigation, the latter standard being the

more exacting of the two.” Id. at 1308. Instead, the district court

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22 Opinion of the Court 24-11998

should focus on the thrust of the “overall relief” obtained by the

plaintiff. Hensley, 461 U.S. at 435. So a fee award need not neces-

sarily be “reduced simply because the plaintiff failed to prevail on

every contention raised in the lawsuit.” Id.

Here, the district court did not abuse its discretion in award-

ing attorney’s fees. Based on time records and declarations submit-

ted by Thompson’s three attorneys, the magistrate judge deter-

mined that they reasonably expended a total of 242.15 hours on this

litigation, at hourly rates of $375 or $400, for a total lodestar figure

of $94,627.50.

Regions maintains that an across-the-board reduction was

warranted for two related reasons: (1) Thompson presented a vo-

luminous and cumbersome fee application characterized by “block

billing” and vague descriptions; and (2) Thompson’s lack of success

on an “unpled” request for recovery of non-overtime pay. Regions

has not established that the district court abused its discretion in

denying a reduction on either ground.

First, the district court reasonably declined to grant a reduc-

tion based on the adequacy of the billing statements. In the R&R,

the magistrate judge rejected Regions’s broad objections that the

attorneys’ billing statements were “replete with unacceptable

block billing practices and vague descriptions,” and were other-

wise—except for a few entries approved by Regions—objectiona-

ble as “providing insufficient details, excessive to the needs of the

case, [and] duplicative of work performed by others,” among other

problems. The magistrate judge found that the billing statements

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24-11998 Opinion of the Court 23

did not reflect block billing 6 because they either listed each task as

a separate entry or included two or three related tasks in the same

entry, and that none of the statements were so vague or volumi-

nous as to frustrate the court’s review. The magistrate judge fur-

ther concluded that Regions had failed to comply with local rules

by “identif[ying] which time entries it objects to for which reason

with supporting authority,” and had “waived most of its objections

to the time entries by failing to develop the objections.” 7

Regions provides no reason to second guess the considered

findings of the magistrate judge on the sufficiency of Thompson’s

fee application, and the magistrate judge otherwise articulated and

gave principled reasons for the decisions as to the appropriate

hours and hourly rates. See in re Home Depot Inc., 931 F.3d at 1089.

So Regions has not shown that the district court abused its discre-

tion in finding that 242.15 hours were reasonably expended on the

litigation.

6 “Block billing is defined as billing multiple unrelated tasks in one billing entry,

such that it becomes difficult, if not impossible, to calculate with any precision

the number of hours an attorney devoted to a particular task.” Johnston v. Bor-

ders, 36 F.4th 1254, 1279 n.46 (11th Cir. 2022) (quotation marks omitted).

7 One exception was Regions’s objection to attorney’s fees related to media-

tion, which was based on an argument that Thompson failed to mediate in

good faith by pursuing more relief—in the form of non-overtime wages—than

was available under law. But the magistrate judge reasonably concluded that

merely taking an incorrect legal position, particularly without “any court or-

der ruling against [that] position,” fails to suggest bad faith or to establish a

“basis not to award fees for time billed related to mediation.” We see no abuse

of discretion on this point.

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24 Opinion of the Court 24-11998

Second, the district court did not abuse its discretion by re-

fusing to grant an across-the-board cut based on the results ob-

tained. Thompson prevailed on the sole FLSA claim raised in his

complaint, obtaining a judgment for the full amount of unpaid

overtime compensation and liquidated damages, $5,650.82.

To be sure, Thompson’s summary-judgment motion also

sought damages in the form of non-overtime wages, based on the

difference between the artificial ($11.15) and regular ($13) hourly

rates, for a total amount of approximately $3,500. And courts may

“consider[] the damages awarded as a relevant factor.” Villano, 254

F.3d at 1307–08.

But the district court was not required to grant a reduction

on that basis. The record shows that the non-overtime damages

request was based on the same “common core of facts” as the de-

mand for unpaid overtime compensation, that Thompson volun-

tarily dropped the request in accepting Regions’ Rule 68 offer, and

that Thompson otherwise obtained an excellent result on his FLSA

claim. See Henley, 461 U.S. at 435; Villano, 254 F.3d at 1307. It was

well within the court’s discretion to conclude that any hours spent

on that litigation position were reasonably expended on the litiga-

tion, even if Thompson ultimately did not recover under that the-

ory. See Henley, 461 U.S. at 435; Villano, 254 F.3d at 1309–10. The

damages awarded to Thompson, while relevant, do not compel a

reduction of the attorney’s fees award.

C. Mediation Costs

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24-11998 Opinion of the Court 25

Finally, Regions challenges the award of $858.75 in media-

tion costs. The FLSA expressly mandates an award of “a reasona-

ble attorney’s fee to be paid by the defendant, and costs of the ac-

tion.” 29 U.S.C. § 216(b). A “reasonable attorney’s fee,” as the term

is used in federal fee-shifting statutes, includes “all reasonable ex-

penses incurred in case preparation, during the course of litigation,

or as an aspect of settlement of the case.” Evans v. Books-A-Million,

762 F.3d 1288, 1298 (11th Cir. 2014) (quotation marks omitted).

And it can include costs that are not taxable under 28 U.S.C. § 1920.

Id. So “reasonable litigation expenses such as mediation . . . may

be recovered . . . if it is the prevailing practice in the legal commu-

nity to bill fee-paying clients separately for those expenses.” Id. at

1299.

Here, the district court did not abuse its discretion in award-

ing the mediation fee. The magistrate judge found that courts in

the Southern District of Florida had awarded prevailing parties the

cost of mediation under the FLSA, and Regions makes no claim

that it was not the prevailing practice in the legal community to bill

fee-paying clients separately for mediation expenses. See id. That

the expenses were not taxable under § 1920 does not preclude their

recovery under § 216(b). See id. at 1298. And Regions offers no

support for its claim that Thompson mediated in bad faith.

VI.

In sum, we affirm the district court in all respects.

AFFIRMED.