Petition for Writ of Certiorari — Cheryl Griffith, Petitioner v. Denis R. McDonough, Secretary of Veterans Affairs
Supreme Court briefMay 11, 2022
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No. ________
In The
Supreme Court of the United States
_________________________________________________
CHERYL GRIFFITH,
Petitioner,
v.
DENIS McDONOUGH
Secretary,
DEPARTMENT OF VETERANS AFFAIRS,
Respondent.
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Eleventh
Circuit
PETITION FOR WRIT OF CERTIORARI
JOSEPH D. MAGRI
Counsel of Record
SEAN M. MCFADDEN
MERKLE & MAGRI, P.A.
5601 Mariner St., Ste. 400
Tampa, Florida 33609
Telephone: (813) 281-9000
Email: jmagri@merklemagri.com
QUESTIONS PRESENTED
Whether a settlement in a case covered by
statutory fee shifting provisions under terms entitling
plaintiff’s attorneys to reasonable fees and costs as
determined by a judge requires fees to be determined:
a) under Blum v. Stenson’s prevailing market rate
in the relevant community as opposed to fees
determined under contract principles in Johnson v.
Georgia Hwy. Exp. Inc., 488 F.2d 714 (5th Cir. 1979)
capping fees at lower hourly rates; and
b) with a right to recover fees and costs incurred in
order to obtain fees.
i
RELATED CASES
Griffith v. Department of Veterans Affairs, Case No.:
8:18-cv-00432-26-CPT, United States District
Court, Middle District of Florida, Tampa Division.
Griffith v. United States Department of Veterans
Affairs, No. 20-14464, U.S. Court of Appeals for
the Eleventh Circuit, Opinion entered September
29, 2021.
ii
TABLE OF CONTENTS
Questions Presented .................................................... i
Related Cases .............................................................. ii
Table of Contents ....................................................... iii
Table of Authorities .................................................... v
Petition for Writ of Certiorari .................................... 1
Opinions and Orders Below........................................ 6
Jurisdiction ................................................................. 6
Statutory Provisions Involved .................................... 6
Statement of the Case ................................................ 9
A.
Legal Background ................................... 10
a.
Reasonable Attorney’s Fees ................ 10
b.
Fees for Litigating Fees ...................... 12
B.
Factual Background ................................ 13
C.
Proceedings Below .................................. 18
Reasons for Granting the Writ ................................. 26
I.
Prevailing Market Rates ........................ 26
II.
Fees on Fees ............................................ 32
Conclusion ................................................................. 36
iii
APPENDIX
Opinion of the United States Court of Appeals,
September 29, 2021..............................................1a
Order of the United States District Court, September
30, 2020……………………………………………….8a
Denial of Rehearing or Rehearing En Banc, United
States Court of Appeals, February 10, 2022…...30a
iv
TABLE OF AUTHORITIES
Cases
Access for the Disabled, Inc. v. Shiv Shraddha, LLC,
8:11-cv-1960-T-33TBM, 2010 WL 2865491 (M.D.
Fla. July 11, 2012), aff’d, 507 Fed. Appx. 845 (11th
Cir. 2013) (unpublished) ................................. 16, 17
Access for the Disabled, Inc. v. STF Investments, LLC,
No. 6:06-cv-857-ORL-22UAM, 2007 WL 2010831
(M.D. Fla. July 6, 2007) ........................................ 16
Am. Disability Ass'n, Inc. v. Chmielarz, 289 F.3d 1315
(11th Cir. 2002) ..............................................passim
Blanchard v. Bergeron, 489 U.S. 87 (1989).......passim
Blum v. Stenson, 465 U.S. 886 (1984) ...............passim
Bond v. Stanton, 630 F.2d 1231 (7th Cir. 1980) ........ 8
Buckhannon Bd. and Care Home, Inc. v. W. Va. Dept.
of Health and Hum. Res., 532 U.S. 598 (2001) 3, 20
Clark v. City of Los Angeles, 803 F.2d 987 (9th Cir.
1986) ........................................................................ 8
Comm’r, INS v. Jean, U.S. 154 (1990) ............... 13, 32
Copeland v. Marshall, 641 F.2d 880 (D.C. Cir. 1980) 9
Donovan v. CSEA Loc. Union 1000, Am. Fedn. Of
State, County and Mun. Employees, AFL_CIO, 784
F.2d 98 (2d Cir. 1986) ............................................. 7
v
Fiedler v. Shinseki, No. 8:07-cv-1524-T-TBM, 2010
WL1708621 (M.D. Fla. April 26, 2010) .......... 24, 25
Gorgus, Laura v. Dep’t of Vet. Affairs, No. AT-1221-170705-A-1, 2020 WL 6449031 (M.S.P.B. Oct. 30,
2020) ...................................................................... 22
Hensley v. Eckerhart, 461 U.S. 424 (1983)..... 7, 10, 13
Hymes v. Harnett County Bd. of Ed., 664 F.2d 410 (4th
Cir. 1981) ................................................................. 8
In re Home Depot Inc., 931 F.3d 1065 (11th Cir. 2019)
........................................................................passim
Johnson v. Georgia Hwy. Exp. Inc., 488 F.2d 714 (5th
Cir. 1979) ........................................................passim
Johnson v. State of Miss., 606 F.2d 635 (5th Cir. 1979)
................................................................................. 8
Jones v. MacMillan Bloedel Containers, Inc., 685 F.2d
236 (8th Cir. 1982) .................................................. 8
Love v. Mayor, City of Cheyenne, Wyo., 620 F.2d 235
(10th Cir. 1980) ....................................................... 9
Lund v. Affleck, 587 F.2d 75 (1st Cir. 1978) ............. 7
Nat. Veterans Leg. Servs. Program v. U.S. Dept. of
Veterans Affairs, 1:96-cv-01740-NHL, 1999 WL
33740260 (D.D.C. Apr. 13, 1999) .......................... 35
Nat’l Coal. for Students with Disabilities v. Bush, 173
F. Supp. 2d 1272 (N.D. Fla. 2001) .................... 4, 20
vi
Norman v. Housing Authority of the City of
Montgomery, 836 F.2d 1292 (11th Cir. 1988)....... 17
Pennsylvania v. Delaware Valley Citizens’ Council for
Clean Air, 478 U.S. 546 (1986), supplemented 483
U.S. 711 (1987) ........................................ 1, 2, 11, 26
Perdue v. Kenny A. ex rel Winn, 559 U.S. 542 (2010)
........................................................................passim
Prandini v. Natl. Tea Co., 585 F.2d 47 (3d Cir. 1978)
................................................................................. 7
Save Our Cumberland Mountains v. Hodel (SOCM),
857 F.2d 1516 (D.C. Cir. 1988) ......................passim
Thompson v. Pharm, Corp. of Am., Inc., 334 F.3d 1242
11th Cir. 2003)......................................................... 9
Tire Kingdom, Inc. v. Morgan Tire & Auto, Inc., 253
F.3d 1332 (11th Cir. 2001) (per curium) .... 5, 24, 25
Villano v. City of Boynton Beach 254 F.3d 1302 (11th
Cir. 2001) ......................................................... 32, 33
Weisenberger v. Huecker, 593 F.2d 49 (6th Cir. 1979)
................................................................................. 8
Statutes
28 U.S.C. § 1254(1) ..................................................... 6
29 U.S.C. § 791(a) ....................................................... 7
29 U.S.C. § 791(f) ........................................................ 7
29 U.S.C. § 794a(a) ..................................................... 7
vii
29 U.S.C. § 794a(b) ..................................................... 7
42 U.S.C. § 1988 .................................................. 10, 11
42 U.S.C. § 2000e-16 ................................................... 6
42 U.S.C. § 2000e-16(a) .............................................. 6
42 U.S.C. § 2000e-16(c) ............................................... 6
42 U.S.C. § 2000e-16(d) .............................................. 6
42 U.S.C. § 2000e-5(k) ................................................ 6
viii
PETITION FOR WRIT OF CERTIORARI
This case involves important questions concerning
settlement of civil rights, statutory fee shifting cases
prior to trial and the need to avoid Johnson v. Georgia
Highway Express, Inc. 488 F.2d 714 (5th Cir. 1974)
from overriding Blum v. Stenson, 465 U.S. 886, 895
(1984); Pennsylvania v. Delaware Valley Citizens’
Council for Clean Air, 478 U.S. 546, 566 (1986),
supplemented 483 U.S. 711 (1987); Blanchard v.
Bergeron, 489 U.S. 87, 92-95 (1989) (rejecting
Johnson’s effect of allowing a defendant to assert a
contract rate to prevent a plaintiff from receiving a
prevailing market rate); Perdue v. Kenny A. ex rel
Winn, 559 U.S. 542, 550-551 (2010); and from directly
conflicting with Save Our Cumberland Mountains v.
Hodel (SOCM), 857 F.2d 1516, 1524 (D.C. Cir. 1988),
(en banc) (the lodestar or prevailing market rate test
should apply to for profit attorneys who practice at
reduced rates reflecting non-economic goals.) While
the present case involves a settlement and retention
of jurisdiction to determine reasonable fees and costs,
nothing in the cases cited nor in the orders in this case
prevents application of their conflicting holdings to
reasonable fees in all settings. This court’s longstanding precedent has required consideration of
prevailing market rates in the relevant community. It
has simultaneously rejected an application of contract
limitations from cases such as Johnson v. Georgia,
when used to derail analysis of prevailing market
rates. Blanchard supra at 92-95; Delaware Valley at
1
563; Perdue at 550-1; see also Save Our Cumberland
Mountains at 1524. The orders in this case conflict
with that precedent and create the precise inequitable
result rejected by the D.C. Circuit, en banc.
In this case, the Secretary lost the key portions of
its summary judgment and agreed to settle the case,
under an agreement which denied liability but agreed
to give Griffith all the relief she sought, and perhaps
more. However, the Secretary wanted to try to limit
attorney’s fees through the court. Having a trial on
liability (even if victory seems virtually assured)
simply to preserve an attorney’s right to fees is
obviously undesirable, indeed, a waste of many
people’s time and money. If reasonable fees and costs
cannot be obtained at settlement, it undermines
settlement and places a wedge between the attorney
and his client. However, as discussed in footnote 4
below in the Middle District of Florida several
lawyers, who obtained the relief their clients sought,
lost all fees by agreeing to have a court decide
reasonable fees. Rather than accept the undesirable
result, we attempted to avoid this by identifying
decisional factors and avoiding them. Griffith agreed
to a settlement which recognized Griffith’s disability
and the VA’s continuing obligation to accommodate
that, paid her $10,000 and most importantly for
present purposes, tied both of these to a fee shifting
provision to pay her attorneys reasonable fees and
costs. The Settlement Agreement made the entire
agreement contingent upon the District Court
2
accepting jurisdiction and awarding
attorney’s fees and costs.
reasonable
Throughout this case, Griffith has argued that
American Disability Association, Inc. v. Chmielarz,
289 F.3d 1315, 1320-21 (11th Cir. 2002) controlled the
prevailing-party determination in this case:
[I]f the district court either
incorporates the terms of a settlement
into its final order of dismissal or
expressly retains jurisdiction to enforce a
settlement, it may thereafter enforce the
terms of the parties’ agreement. Its
authority to do so clearly establishes a
‘judicially sanctioned change in the legal
relationship of the parties,’ as required
by Buckhannon, because the plaintiff
thereafter may return to court to have
the settlement enforced.
289 F.3d at 1320. Chmielarz is based upon
Buckhannon Board and Care Home, Inc. v. West
Virginia Department of Health and Human Resources,
532 U.S. 598, 598, 604 (2001). Here, as in Chmielarz,
the district court expressly retained jurisdiction to
enforce the outstanding terms of the Settlement
Agreement, i.e., the fee-shifting provisions. See 289
F.3d at 1320-21. This retention of jurisdiction was an
express condition of the Settlement Agreement, and
without it, there would be no release or settlement. In
determining Plaintiff’s prevailing-party status under
3
these circumstances, the Settlement Agreement and
the retention of jurisdiction to enforce the agreement
have the same effect as a court order imposing the
same terms. Id.; see also Nat’l Coalition for Students
with Disabilities v. Bush, 173 F. Supp. 2d 1272, 1279
(N.D. Fla. 2001). 1
In this case, the parties filed a Joint Motion to
Dismiss and Jurisdiction requiring “that the court
retain jurisdiction to enforce the parties’ Settlement
and Release … for the purpose of resolving Plaintiff’s
counsel’s reasonable costs and attorney’s fees.” The
court did and ruled that all of Griffith’s attorney’s
hours were determined to be reasonable, but the
District Court did not award reasonable attorney’s
fees based upon prevailing market rates in the
relevant community. Instead, it rejected traditional
market rate evidence including the only federal court
fee award in a Rehabilitation and Title VII case
because it was from the S.D. of Florida and a Tampa
District Court decision which was ten years old, but
still too high for the District Court. Instead, under
Johnson and its progeny, selective, low, non-economic
Given the difficulty prior plaintiffs had in the Middle
District of Florida, we also alternatively argued that the law
would be the same under a contractual fee shifting settlement
agreement under Florida law. Home Depot, Inc., et al. v. Home
Depot, Inc. (The) Home Depot USA, Inc., 931 F.3d 1065, 1903
(11th Cir. 2019). On its face Home Depot maintains the rules
relating to prevailing market rate and fees on fees provisions are
the same as in fee shifting statutes. Id. at 1084-1086,1093. The
opinions appealed did not reject Chmielarz nor distinguished
their holdings based on these theories.
1
4
contract rates were found to be the best evidence of
prevailing market rates. It made no adjustments to
evidence based prevailing market rates. Instead it
used Johnson v. Georgia Hwy. Exp. and its progeny to
determine reasonable fees based on Griffith’s fee
contract with her attorneys which contained special
lower rates for a civil rights/public interest plaintiff.
In direct conflict with Save Our Cumberland
Mountains, the Eleventh Circuit recognized Griffith
had “provided evidence of judicially awarded fees in
the relevant market that could have supported a
higher reasonable rate,” but said “we cannot conclude
the magistrate clearly erred by awarding only
contracted rates.” “The fact that a client and attorney
have agreed on the contracted rates is strong
indication of a reasonable rate. Tire Kingdom, 253
F.3d at 1337.” 5a. Tire Kingdom, Inc. v. Morgan Tire
& Auto, Inc., 253 F.3d 1332 (11th Cir. 2001) (per
curium) was a commercial case which relied on
Johnson while misdescribing Blanchard, a statutory
fee shifting case. The panel did not reverse the District
Court’s order on the reasonable hourly rate, nor
reverse its complete refusal to award fees and costs for
having to litigate fees. It did, however, require the
District Court to consider the fees Griffith’s attorney
incurred in preparing a Reply to the Secretary’s
response to the Motion for Fees and Costs. 6a-7a.
The Griffith opinions conflict with statutory fee
shifting precedent of this Court and the D.C. Circuit,
en banc. If unaddressed these opinions will lead to
5
inequitable results and additional unnecessary fee
litigation in statutory fee shifting cases.
OPINIONS AND ORDERS BELOW
The September 29, 2021 opinion of the court of
appeals, which was not designated for publication, is
set out at pp. 1a-7a of the Appendix. The post-appeal
February 10, 2022 denial of the Petition for Rehearing
or Rehearing En Banc is set out at pp. 30a-31a of the
Appendix. The September 30, 2020 Order of the U. S.
District Court is set out at pp. 8a-29a of the Appendix.
JURISDICTION
The decisions of the court of appeals were entered
on September 29, 2021 and February 10, 2022. See 1a
and 30a. This Court has jurisdiction pursuant to 28
U.S.C. § 1254(1).
STATUTORY PROVISIONS INVOLVED
Under 42 U.S.C. § 2000e-16, employees of federal
agencies are permitted to sue the federal government
for employment discrimination based on race, sex,
retaliation and other protected characteristics. 42
U.S.C. § 2000e-16(a), (c). Section 2000e-5(k) allows
courts to award reasonable attorney’s fees to the
prevailing party in litigation under §§ 2000e to 2000e17. See 42 U.S.C. § 2000e-5(k); see also 42 U.S.C. §
2000e-16(d) (stating 42 U.S.C. § 2000e-5(k) applies to
actions against the federal government brought under
§ 2000e-16). Similarly, the Rehabilitation Act
6
prohibits federal agencies from discriminating on the
basis of disability and allows employees of federal
agencies to sue the government and, if successful,
recover attorney’s fees. 29 U.S.C. § 791(a), (f); see also
29 U.S.C. § 794a(a), (b) (referencing 42 U.S.C. §§
2000e-16, 20002-5(k).
This Court has held that attorney’s fee award
provisions in statutory fee shifting civil-rights actions
are sufficiently similar so that decisions interpreting
one are applicable to all. See Hensley v. Eckerhart, 461
U.S. 424, 433 n.7 (1983) (noting the standards set
forth in the opinion are generally applicable in all
cases in which Congress has authorized an award of
fees to a “prevailing party”).
Entitlement to fees is a creature of legislative fiat,
and the federal courts have uniformly concluded that
compensation for litigating fees is a recoverable
portion of that statutory entitlement. See, e.g., Lund
v. Affleck, 587 F.2d 75, 77 (1st Cir. 1978) (finding it to
be inconsistent with the purpose of the statute to
dilute a fees award by refusing to compensate the
attorney for the time reasonably spent in establishing
and negotiating his rightful claim to the fee); Donovan
v. CSEA Loc. Union 1000, Am. Fedn. Of State, County
and Mun. Employees, AFL_CIO, 784 F.2d 98, 106 (2d
Cir. 1986) (“The fee application is a necessary part of
the award of attorney’s fees. If the original award is
warranted,. . . a reasonable amount should be granted
for time spent in applying for the award.”); Prandini
v. Natl. Tea Co., 585 F.2d 47, 54 (3d Cir. 1978) (holding
7
that the appellant’s attorneys were entitled under
Title VII to be compensated for time spent successfully
appealing the first fee award, and in preparing the fee
petition, to the extent that time was reasonably
necessary to obtaining a reasonable fee award);
Hymes v. Harnett County Bd. of Ed., 664 F.2d 410, 413
(4th Cir. 1981) (finding the district court erred where
it neglected to include any allowance for the time
spent, in the district court and on appeal, to defend
the entitlement to and to argue the amount of fees);
Johnson v. State of Miss., 606 F.2d 635, 638 (5th Cir.
1979) (finding that attorney’s fees may be awarded for
time spent litigating the fee claim and reversing the
portion of the district court’s judgment refusing to
consider fee claim time and costs); Weisenberger v.
Huecker, 593 F.2d 49, 53-54 (6th Cir. 1979) (finding
the district court abused its discretion in refusing to
award attorney’s fees for counsel time spent pursuing
the recovery of attorney’s fees); Bond v. Stanton, 630
F.2d 1231, 1235 (7th Cir. 1980) (“[P]revailing
plaintiffs under [§1988] are properly entitled to fee
awards for time spent litigating their claim to fees.”);
Jones v. MacMillan Bloedel Containers, Inc., 685 F.2d
236, 239 (8th Cir. 1982) (finding the plaintiffs’
attorneys to be entitled to compensation for services
performed in litigating the attorney’s fees claim in the
district court and on appeal); Clark v. City of Los
Angeles, 803 F.2d 987, 992 (9th Cir. 1986) (“We, like
every other court that has considered the question,
have held that the time spent in establishing
entitlement to an amount of fees awardable under
8
section 1988 is compensable.”); Love v. Mayor, City of
Cheyenne, Wyo., 620 F.2d 235, 237 (10th Cir. 1980)
(finding the plaintiff to be entitled to attorney’s fees
for work done on appeal and for work done in resolving
the fee issue itself); Thompson v. Pharm, Corp. of Am.,
Inc., 334 F.3d 1242, 1245 11th Cir. 2003) (finding an
abuse of discretion where the district court deducted
all the time attributed to efforts to recover a fee);
Copeland v. Marshall, 641 F.2d 880, 901 (D.C. Cir.
1980) (“[T]he time spent litigating the fee award
normally is itself compensable.”).
STATEMENT OF THE CASE
The opinions in this case deviate from the
established meaning of reasonable attorney’s fees in
statutory fee shifting cases. In this case the District
Court erroneously changed the meaning of reasonable
attorney’s fees and costs from the prevailing market
rate in the relevant community to the rates contained
in a private fee agreement designed to help plaintiffs
and reflecting non-economic goals. The Decision
further penalized Griffith and her attorneys for
litigating the attorney’s fee issues by denying any fees
on fees. The Eleventh Circuit did not correct these
errors when it directed the District Court to consider
fees relating to a reply to the Defendant’s response to
the motion for fees and costs. Significantly, the
opinions in this case will become an invitation to
future litigation, as defendants seek to use their
holdings to litigate what was settled law relating to
9
reasonable fees and fees on fees at all stages of
statutory fee shifting litigation.
A. LEGAL BACKGROUND
a. Reasonable Attorney’s Fees
According to this Court, the “lodestar”--the number
of hours reasonably expended on the litigation
multiplied by a reasonable hourly rate –provides the
starting point for determining the amount of a
“reasonable attorney’s fee.” See Hensley, 461 U.S. at
433 (“The most useful starting point for determining
the amount of a reasonable fee is the number of hours
reasonably expended on the litigation multiplied by a
reasonable hourly rate.”); Blum, 465 U.S. at 888 (“The
initial estimate of reasonable attorney’s fees is
properly calculated by multiplying the number of
hours reasonably expended on litigation times a
reasonable hourly rate.”) (citing Hensley).
In Blum, the Supreme Court interpreted the
meaning of the statutory phrase “reasonable
attorney’s fee” in the Civil Rights Attorney’s Fee
Award Act of 1976, 42 U.S.C. § 1988 (1976 & Supp. V).
Section 1988 provided, in relevant part: “In any action
or proceeding to enforce a provision of sections 1981,
1982, 1983, 1985, and 1986 of this title…, the court, in
its discretion, may allow the prevailing party, other
than the United States, a reasonable attorney’s fee as
part of the costs.” See 465 U.S. at 893 n.7; Hensley, 461
U.S. at 433 n.7 (covers Title VII). After considering the
10
statute and the legislative history, the Supreme Court
held that “reasonable fees under § 1988 are to be
calculated according to the prevailing market rates in
the relevant community, regardless of whether
plaintiff is represented by private or nonprofit
counsel.” Id. at 895 (emphasis added).
The old Fifth Circuit rule was that “[i]n no
event…should a litigant be awarded a fee greater than
he is contractually bound to pay, if indeed the
attorneys have contracted to that amount.” Johnson v.
Georgia Hwy., 488 F.2d at 718. . The Supreme Court
has held that fee agreements should not place such a
limit on fee awards. See Blanchard, 489 U.S. at 92-95
(explicitly rejecting the holding in Johnson that fee
agreements impose an automatic ceiling on an award
of attorney’s fees). The Court has also found most if
not all of Johnson factors are subsumed in the
lodestar. Delaware Valley, 478 U.S. at 566 . In Perdue
v. Kenny A., the Court found Johnson’s factors too
subjective. 559 U.S. 550-51.
In Save Our Cumberland Mountains, the D.C.
Circuit, en banc, addressed whether the prevailing
market rate was to be used by courts in calculating fee
awards for firms, such as ours, that charge reduced
rates in order to serve a public interest type of client.
857 F.2d at 1524. The en banc court concluded that
the application of a rate lower than the prevailing
market rate would be “inconsistent with the intent of
Congress in enacting fee award statutes and with the
11
Supreme Court’s decision in Blum v. Stenson which
construed those statutes.” Id. It stated:
In short, we conclude that our prior decision
in Laffey v. Northwest Airlines, Inc., and the
panel decision in this case, which it
compelled, are both inconsistent with the
intent of Congress in enacting fee award
statutes and with the Supreme Court’s
decision in Blum v. Stenson which construed
those statutes. We therefore expressly
overrule Laffey to the extent that it imposes
the above discussed different method of
determining reasonable attorney fees on
attorneys situated as Yablonski and Galloway
are here. Henceforth, the prevailing market
rate method heretofore used in awarding fees
to traditional for-profit firms and public
interest legal services organizations shall
apply as well to those attorneys who practice
privately and for profit but at reduced rates
reflecting non-economic goals.
Id.
b. Fees for Litigating Fees
The district court’s order rejected Griffith’s
supplemental fee-on-fees request. As discussed above
all federal circuits recognize the right to fees on fees
when reasonable attorney’s fees are at issue under
Congressional fee shifting statutes.
12
The U.S. Supreme Court has also implicitly
recognized fees on fees are covered in such
circumstancs. See Comm’r, INS v. Jean, U.S. 154, 163
n.10 (1990) (“Because Hensley v. Eckerhart, 461 U.S.
4224, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983),
requires the district court to consider the relationship
between the amount of the fee awarded and the
results obtained, fee for fee litigation should be
excluded to the extent that the applicant ultimately
fails to prevail in such litigation.”).
B. FACTUAL BACKGROUND
Griffith has been an Assistant Regional Counsel
GS-14 at the VA Office of Regional Counsel at all
material times. From approximately 2011 to 2014, she
developed cyclical neutropenia, which is a rare blood
disorder characterized by recurrent episodes of
abnormally low levels of white blood cells (i.e.,
neutrophils) in the body. 2 Consequently, Griffith
formally requested a reasonable accommodation for
her condition in April 2014. The Local Regional
Accommodation Coordinator (LRAC) determined that
Griffith was a qualified person with a disability and
that reasonable accommodation was available;
however, management denied Griffith an official
determination that she was a qualified person with a
2 Cyclical neutropenia is a permanent condition that results
in episodes of immunosuppression, thereby causing the
individual to be abnormally susceptible to recurrent infections.
Griffith’s doctors advised her to isolate herself during these
episodes until her white blood cell count returned to normal.
13
disability, prevented written findings by the LRAC
and ultimately failed to provide Griffith with an
accommodation. Instead, Griffith was harassed by
management. Previously evaluated as an outstanding
attorney, she was met with multiple claims she failed
to do one thing or another to justify management’s
new found hostility. These proved baseless, but only
after we took multiple depositions as noted in billing
records.
On December 4, 2014, Griffith filed her formal
EEOC complaint. On February 22, 2018, Griffith filed
suit in federal court. Griffith alleged that the VA had
failed to reasonably accommodate her disability in
violation of Section 501 of the Rehabilitation Act of
1973. She also alleged discrimination and retaliation
in violation of Title VII and the Rehabilitation Act on
the same facts. Finally, she alleged a hostile work
environment based on the same facts because of her
race, disability and protected activity. Throughout the
administrative stage and federal proceedings, the
Secretary refused to consider any resolution of
Griffith’s claim.
The case was assigned to a Magistrate for trial. On
August 20, 2019, the court granted in part and denied
in part the Secretary’s Motion for Summary Judgment
(MSJ). 3 On December 20, 2019, the parties entered
Griffith dropped her race discrimination and retaliation
claim because the race and retaliation claims merely involved
3
14
into a Settlement and Release Agreement (Settlement
Agreement)
releasing
Griffith’s
claims
in
consideration for (1) recognition Griffith was a
qualified person with a disability (neutropenia)
entitled to a continuous reasonable accommodation
through telework and various potential assignments,
(2) $10,000 in damages, and (3) Griffith’s “costs and
attorney’s fees in the amount determined reasonable
by order of the United States District Court.”
The Secretary sought to settle the case rather than
go to trial but wanted to litigate attorney’s fees.
Merkle & Magri, P.A.’s fee agreement for federal
employee civil rights/public interest clients, employs a
framework charging multiple rates, which have each
increased over time. First, a reduced rate that is
significantly less than our reasonable hourly rate.
This covers little more than our overhead. Second, if
the case settles, the client is liable for a higher reduced
hourly rate for all hours worked that is still lower than
our reasonable hourly rate. However, it covers all
hours worked because the client is liable for all such
hours. A third separate provision is an interest
provision for extended non-payment. A fourth
provision covers presentation of fees to a court or
judge and permits the court to determine our
other potential motivations for the denial of reasonable
accommodation.
She
responded
on
her
reasonable
accommodation claim and hostile work environment claims. On
August 20, 2019, the Court denied the MSJ as to the reasonable
accommodation and hostile work environment counts, while
granting it on the race and retaliation counts.
15
reasonable hourly fees and costs expended to obtain
the fees and costs, regardless of how the court rules.
The client is obligated for this time and costs.
The Settlement Agreement did not incorporate the
fee agreement rates. Rather, it required a reasonable
attorney’s fee. After summary judgment, the
Secretary sought to settle the case but refused to
settle for fees at the settlement rate for all hours
worked. Given several Middle District of Florida
cases, we carefully negotiated language. 4 We chose
4 In Access for the Disabled, Inc. v. STF Investments, LLC,
No. 6:06-cv-857-ORL-22UAM, 2007 WL 2010831, at *2-3 (M.D.
Fla. July 6, 2007), the parties settled non-monetary issues only
and requested the district court to retain jurisdiction to decide
the attorney’s fees issue. The court retained jurisdiction to
address the attorney’s fees but did not retain jurisdiction to
enforce the terms of the settlement agreement. Id. The court also
did not incorporate by reference any terms of the settlement
agreement into its order of dismissal or enter an order that was
functionally equivalent to a consent decree. Id. Based on this, the
court determined that it “never juridically altered the legal
relationship of the parties within the meaning of Buckhannon
[and] Chmielarz….and Plaintiffs have not demonstrated that
they are prevailing parties entitled to fees.” Id. Thus, the court
denied the plaintiffs’ motion for attorneys’ fees. Id. In Access for
the Disabled, Inc. v. Shiv Shraddha, LLC, 8:11-cv-1960-T33TBM, 2010 WL 2865491, at *1 (M.D. Fla. July 11, 2012), aff’d,
507 Fed. Appx. 845 (11th Cir. 2013) (unpublished), the parties
filed a joint stipulation to dismiss the case requesting the court
retain jurisdiction to enforce the parties settlement agreement
and to determine the entitlement and attorneys’ fees, costs and
litigation expenses. Id. While the court retained jurisdiction on
the issue of attorneys’ fees, it expressly declined to retain
jurisdiction to enforce the settlement agreement. Id. at *2, Based
on this, the court found that the plaintiffs had not obtained a
16
language with settled law that would allow the
Secretary to make its challenges while protecting our
client’s rights to avoid losing substantive relief due to
unpaid fees and to obtain both reasonable fees and
costs and fees on fees because ¶7 of the fee agreement
makes her liable for fees on fees.
Our historic fee framework or structure has been
consistent, but the rates have evolved over time. The
clients fee agreement also contains Florida’s standard
clients’ rights form for contingent fee agreements.
Several District Courts (going back to 2007 in the
Middle and Southern Districts of Florida) and the
Merit Systems Protection Board (MSPB) have found
that fee shifting case law and ¶7 of our fee contract,
as the case may be, allows our clients and their
attorneys to recover reasonable fees and costs
notwithstanding other lower rates in our fee
agreements. The Settlement Agreement in this case
did as well. Those District Court cases, several
Supreme Court cases, In re Home Depot Inc., 931 F.3d
1065 (11th Cir. 2019), and Norman v. Housing
Authority of the City of Montgomery, 836 F.2d 1292,
1299 (11th Cir. 1988) recognize the starting point for
determining “reasonable” fees is consideration of
“market rates” based on similarly-situated counsel
with similar experience and expertise in the
particular area times the number of reasonable hours.
“court-ordered change in the legal relationship” between the
parties necessary to be considered a “prevailing party” and were,
therefore, not entitled to recover attorneys’ fees. Id. at *3-4.
17
The trial court found the number of hours were
reasonable. It also recognized the need to determine
market rates, but ignored analysis of prevailing
market rates in favor of an alleged “reasonable” rate
only consistent with the pre-settlement billing rates,
except it awarded Mr. Magri the settlement rate in
our fee agreement.
The Settlement Agreement was contingent on a
provision requiring the court to retain jurisdiction to
determine reasonable attorney’s fees and costs. A
motion for reasonable attorney’s fees and costs was
filed with expert declaration and considerable
supporting documentation concerning Griffith’s
attorneys’ background and experience in this area of
the law and the difficulties of the Defendant’s actions
and defenses. The expert was experienced in this type
of litigation and worked in the Tampa and Miami
offices of an international law firm. His hourly rate
was over $500 per hour. The motion was opposed by
the Secretary without countervailing expert
affidavits, or any analysis of market rates. Despite its
promise in the Settlement Agreement, it argued our
legal fees should be capped by one of four fee
provisions, the lowest, contained in our fee contract
with Griffith to which the Secretary was not a party
and which was not incorporated into the Settlement
Agreement.
C. PROCEEDINGS BELOW
18
On December 20, 2019, the parties filed the
Settlement Agreement along with a Joint Motion to
Dismiss and Retain Jurisdiction “requesting that the
Court retain jurisdiction to enforce the parties’
Settlement and Release… for the purpose of resolving
Griffith’s counsel’s reasonable costs and attorney’s
fees” which the Court granted. The issue before the
Court was the amount of Griffith’s reasonable fees and
costs as opposed to her entitlement to fees and costs.
Griffith’s Motion for Attorney’s Fees and Costs and
Memorandum of Law was alternatively based on (1)
statutory fee-shifting under Chmielarz, and (2)
contractual fee-shifting under Home Depot. 5
Here, as in Chmielarz, the district court expressly
retained jurisdiction to enforce the outstanding terms
of the Settlement Agreement, i.e., the fee-shifting
5 Throughout this case, Griffith has argued, without the
rejection or disagreement, that Chmielarz, which derives from
Buckhannon, controls the prevailing-party determination in this
case:
[I]f the district court either incorporates the terms of a
settlement into its final order of dismissal or expressly
retains jurisdiction to enforce a settlement, it may
thereafter enforce the terms of the parties’ agreement.
Its authority to do so clearly establishes a ‘judicially
sanctioned change in the legal relationship of the
parties’ as required by Buckhannon, because the
plaintiff thereafter may return to court to have the
settlement enforces. 289 F.3d at 1320.
However, Home Depot also held that contractual fee shifting
is governed by statutory fee shifting authority. 931 F.3d at
11084-1086, 1093. Given the difficulty in case law (fn4)
Home Depot was a fall-back position.
19
provisions. See 289 F.3d at 1320-21. This retention of
jurisdiction was an express condition of the
Settlement Agreement, and without it, there would be
no release or settlement. In determining Griffith’s
prevailing party status under these circumstances,
the Settlement Agreement and the retention of
jurisdiction to enforce the agreement have the same
effect as a court order imposing the same terms. Id.;
see also Bush, 173 F. Supp. 2d at 1279; Buckhannon,
532 U.S. at 604. In the Settlement Agreement the
Secretary agreed that Griffith was a qualified person
with a disability (neutropenia) entitled to reasonable
accommodations specifically delineated (telework)
which followed her in the event of identified potential
reassignments. It also entitled her to damages and
reasonable attorney’s fees and costs determined by the
court. The court accepted jurisdiction over the
Settlement Agreement to resolve those reasonable
fees and costs. Had it not, there would have been no
settlement, because the release was contingent upon
the district court accepting jurisdiction.
Along with her original motion for fees, Griffith
submitted declarations of three attorneys and a
paralegal who worked on her case, invoices for fees
and costs, receipts for costs, Griffith’s Fee Agreement
and Statement of Client Rights, the Laffey Matrix
regarding attorney’s fees in another jurisdiction in
which we practice. The declarations contained
descriptions of our attorney’s experience in private
practice, the US Attorney’s Office, including as First
20
Assistant and Acting US Attorney, and the factors
courts look to for market rates. They focused primarily
on our work in the Middle and Southern Districts of
Florida. An affidavit relating to similar cases filed in
the Middle District and Southern District of Florida
delineated cases handled by our firm and all other
firms of the type of federal employment cases we
handled in Miami for 10 years and in Tampa for 15
years. Concerning the market rate factor of a need for
attorneys, it showed roughly 50% of federal employee
cases were pro se in those Districts. It is hard for
federal employees to afford or to obtain lawyers who
will represent them in these cases. The affidavit also
compared the number of our cases with those other
lawyers handled. Our Tampa cases are several
multiples of the next closest lawyer and we were the
only attorneys to prevail at trials in Tampa and
Miami. Our settlement to loss ratio is considerably
higher than other attorneys. The Motion also reflected
that our firm does cases in many other states. We do
not advertise or otherwise solicit these cases. Mr.
McCormack addressed our reputation in his affidavit.
We have had meaningful success and just enough
adversity to help us grow. The present litigation was
handled efficiently enough that the court found all our
hours and all our costs to be reasonable.
We also submitted a declaration by an attorney, J.
Robert McCormack, who works for an international
law firm with 53 offices out of its Tampa and Miami
offices. Mr. McCormack had handled federal and
21
state employment litigation for his firm’s clients
(employers) and for years federal employees. He is a
litigation attorney and is very familiar with attorneys
practicing in employment litigation generally as well
as the difficulties involved in federal employment
litigation. He is particularly familiar with the work of
this law firm and the success we have had in this area.
He is also familiar with other lawyers who have
pursued their work in private firms like his own or
others and the rates they charge. His rate is $510 per
hour. He agreed with the reasonable hourly rate
sought in the Motion of $550 for Joseph Magri; $350
for Sean McFadden; $200 for Gerard Roble; $125 for
Meagan Blackshear Ross-Culpepper and $150 for
Angela Merkle. We also submitted a Southern District
of Florida decision, Horne v. Barr, 1:12-cv-23507-JEM
in a Rehabilitation Act and Title VII case where the
District
Court
accepted
a
Magistrate’s
recommendation which found the reasonable hourly
rates of:
Joseph Magri $550 per hour; Ward
Meythaler $525 per hour; Gerard Roble $200 per hour;
Sean McFadden $350 per hour; Ms. Ross-Culpepper
$125 per hour; Ms. Merkle $165 per hour. 6
In the Eleventh Circuit we cited a 2020 decision by the
MSPB which awarded the same rates in a whistleblowing case
tried in Tampa, Fla. Gorgus, Laura v. Dep’t of Vet. Affairs, No.
AT-1221-17-0705-A-1, 2020 WL 6449031 (M.S.P.B. Oct. 30,
2020). It came down after the Magistrates Order but continues
to show we maintain a gap between contract rates and
reasonable hourly rates, and that judges have not confused these
provisions as the District Court did here.
6
22
The motion was opposed by the Secretary without:
challenge
to
our experience
or
expertise;
countervailing expert affidavits; or any analysis of the
prevailing market rate. Despite the Secretary’s
promise in the language of the Settlement Agreement,
the Secretary argued that it should get the benefit of
the reduced rates provided in Griffith’s fee agreement.
It also challenged the reasonableness of the number of
hours worked.
In paragraph 36 of the original motion for fees,
Griffith provided notice that she would be filing
supplemental motions for fees on fees. On June 12,
2020, Griffith filed her Supplemental Motion
requesting fees on fees. The Secretary opposed it as
untimely.
On September 30, 2020, the district court entered
an order awarding Griffith $80,520.00 on attorney’s
fees and $8,933.48 in costs. The court found our billed
time and costs to be reasonable but held that the
reasonable attorney’s fees were to be calculated using
the reduced rates in the fee agreement with our client.
It rejected as irrelevant a 2020 decision from the
Southern District of Florida in a Rehabilitation Act
and Title VII case, which was consistent with the
rates requested. 7
Interestingly, Johnson v. Georgia Highway Express
recognized that under these circumstances decisions outside the
locality are evidence of market rate. 488 F.2d at 719 (lists over a
7
23
The court rejected all the prevailing market rate
evidence submitted by Griffith in favor of reduced
rates lower than those awarded to the same attorneys
in the same district in the same type of case ten years
prior. Fiedler v. Shinseki, No. 8:07-cv-1524-T-TBM,
2010 WL1708621 (M.D. Fla. April 26, 2010). 8
The court also denied Griffith’s motion for fees on
fees.
The District Court addressed Blanchard by
reference to Tire Kingdom, Inc. v. Morgan Tire &
Auto, Inc., 253 F.3d 1332, 1336 (11th Cir. 2001) (per
curium). Ignoring the different nature of Blanchard
and Tire Kingdom the District Court points out that
the court in Tire Kingdom stated: “At least in the
context of contingent fee agreements, a fee agreement
should not place a strict limit on a fee award.” Tire
dozen cases reviewed for this purpose). Here there were no
contrary federal employee fee decisions in either the Florida
Middle or Southern Districts. Indeed, there is no court decision
that the Magistrate accepted as evidence of market rates. The
closest it came to discussing them was to criticize our expert’s
reliance on certain ones, but not to use them as evidence of the
market rate because it was relying on reduced non-economic
rates.
8 The Magistrate was an AUSA since 1994 and a member of
the US Attorney’s Office in Tampa since 2004. He was there in
2007 when Krop went to trial and fees were awarded and when
Griffith’s attorneys won the Fiedler/Cote case at trial in 2009,
and in 2010 and 2012 when they obtained reasonable fees in that
case. He was there when more than 20 cases settled and when a
case began which resulted in Babb v. Wilkie, 140 S.Ct. 1168
(2020). If he was unfamiliar with our fee agreement and its
purpose, we explained it in our motion.
24
Kingdom, 253 F.3d at 1336. The court then ignored
the fact that Blanchard was talking about a fee
agreement providing less than a reasonable fee. Its
point was that the defendant nevertheless would be
required to pay the higher amount. The court followed
up on page nine of its Order by considering a series of
cases in which courts in this circuit faced a “disparity
between a litigants contractional fee rate with counsel
or a higher purportedly reasonable rate”. Every one of
those cases involved commercial litigation except
Fiedler v. Shinseki, (awarding hourly rates higher
than the contractional rates following jury verdict for
the Plaintiff). The Fiedler case was a case that this
firm tried to verdict in 2009, the fee contract is the
same as the Griffith contract except the settlement
rate was lower. In Fiedler the court rejected a lower
contract settlement amount and awarded a
reasonable hourly rate of $350.00. That court also
considered affidavits including an expert affidavit and
a description of our experience. At that point our
experience with Federal employee litigation was
considerably less than it is now, however, we now
have extensive federal employee litigation experience.
It is remarkable that Mr. Magri’s reasonable hourly
rate in 2010 was found by a Middle District Court to
be $350.00 an hour, however, a District Court in 2020
reduced them to $300.00 an hour. Mr. Roble’s was
$200 per hour, but in 2020 that became $130. In that
case we again sought fees in 2012 and requested $350.
The court granted it, but noted he could have given
more if we asked for it.
25
The Court improperly used provisions in our fee
agreement designed for another purpose to deny us
our reasonable hourly rate. In Blanchard v. Bergeron,
the Supreme Court held that “[s]hould a fee
agreement provide less than a reasonable fee
calculated in this manner, the defendant should
nevertheless be required to pay the higher amount.”
489 U.S. at 93. That language cannot be ignored by
refusing to determine market rates outside the lower
fee contract rate. Many courts have recognized
Blanchard’s holding. The District Court accepted the
Secretary’s argument and erred as a matter of law.
REASONS FOR GRANTING THE WRIT
I.
Prevailing Market Rates
This Court's long-standing precedent has required
consideration of prevailing market rates in the
relevant community. Blum, 465 U.S. at 895; Delaware
Valley, 478 U.S. at 566; Perdue, 599 U.S. at 550-551;
Blanchard, 489 U.S. at 92-95. It has simultaneously
rejected an application of contract limitations from
cases such as Johnson v. Georgia Highway Express
and its progeny to derail an analysis of prevailing
market rates. It is especially important in this case
which involves for-profit attorneys who practice at
reduced rates reflecting non-economic goals. Save Our
Cumberland Mountains, 857 F.2d at 1524.
The Settlement Agreement was to allow the
Secretary to challenge Griffith's fees and to allow
26
Griffith to avoid damage by making it a fair fight. The
Secretary has long been familiar with the fee
agreement structure that Griffith had. Had the
Secretary accepted the settlement amount under
Griffith's fee agreement, it would have paid exactly
the same amount it is to pay under the court's order.
However, if the Secretary was going to challenge those
fees, Griffith would have to pay for the fee litigation.
The Secretary also knew this. In order to protect
Griffith from the various eventualities that could
occur and to deter the Secretary from requiring others
to face the undesirable choice it laid on Griffith and
her attorneys, there needed to be a benefit to Griffith.
That benefit was the ability to obtain the reasonable
fees that her attorneys had been entitled to in other
cases involving the Secretary. She needed to obtain
reasonable fees based on the prevailing market rate.
That was the parties’ bargain.
However, the Secretary had one basic argument to
the district court magistrate judge. It wanted our fees
limited to the lowest amounts contained in our fee
agreement. To get this, the Secretary never
challenged the traditional evidence of prevailing
market rates that we produced. It never challenged
our expert with an expert of its own. Rather it
challenged all of that by arguing that we were bound
by our lowest contract rates. If that was true than any
amount that we were entitled to as a reasonable
hourly rate would have looked like a windfall. That is
precisely the argument the magistrate accepted.
27
The problem with this is it does not consider the
prevailing market rate. This was a litigation that the
Secretary picked. But the Secretary did not come into
that litigation to argue prevailing market rates. It had
done so in several cases and was well aware of records
reflecting district courts and the MSPB awarding
Griffith’s attorneys reasonable hourly rates under
paragraph 7 of our fee agreement when fees were
decided by a judge. Such reasonable hourly rates are
determined under the lodestar and with a
determination of the prevailing market rate. The
Secretary sought to avoid that fight. In doing so he not
only took away Griffith’s bargain, but disturbed
settled law.
Perhaps the best way to understand what is legally
wrong with what happened here is to look at Save Our
Cumberland Mountains. In that case a District Court
and a panel of the Court of Appeals did not award forprofit private lawyers who gave their clients reduced
fees the prevailing market rate that was available to
public interest and large firms. The District of
Columbia Circuit, en banc, ruled that denied the inbetween law firms the ability to obtain the prevailing
market rate Supreme Court precedent required. It
held:
We therefore expressly overrule
Laffey to the extent that it imposes the
above discussed different method of
28
determining reasonable attorney's fees
on attorneys situated as your blondes
and Galloway are here. Henceforth the
prevailing
market
rate
method
heretofore used in awarding fees to
traditional for-profit firms in public
interest legal service organizations shall
apply as well to those attorneys who
practice privately and for-profit but at
reduced rates reflecting non-– economic
goals.
Conversely, in reaching its decision the District
Court focused on Johnson v. Georgia Highway
Express, Inc., 488 F.2d 714 (11th Cir. 1974) (“In no
event, however, should the litigant be awarded a fee
greater than he is contractually bound to pay, if
indeed the attorneys have contracted as to amount.”).
Blanchard v. Bergeron, criticized this statement
because no single factor should be determinative. 489
U.S. at 92-95. Perdue v. Kenny rejected Johnson as
being too subjective when looking to determine
market rates. 599 U.S. at 551-52. However, at no point
does the District Court’s decision assess market rate. 9
More importantly, the district court and panel’s
reasoning is inconsistent with the intent of Congress
9 The District Court’s citation to Home Depot misstates Home
Depot. That panel stated that Johnson factors should be rarely
used and are only relevant when not fully captured in the
lodestar. 931 F.3d at 1091. Even then, the focus is adjustment of
the market rate.
29
in enacting the fee-shifting statutes and with the
Supreme Court’s decision in Blum. Indeed, the panel’s
deference to the district court’s use of reduced rates in
the fee agreement turns the holdings of Blum and
Blanchard on their heads by finding the only
persuasive evidence of the prevailing market rate is
documentation reflecting reduced rates. While the
panel and the district court referenced “prevailing
market rate,” neither sought to determine the
prevailing market rate in the relevant market and
ignored that Supreme Court admonishments that
reasonable fees should not be limited to reduced rates.
See Blanchard, 489 U.S. at 93-94; Perdue, 559 U.S. at
551-52. Instead, all the traditional evidence of the
prevailing market rate provided by Griffith was
rejected by the panel while upholding the district
court’s order. See 5a (“While Griffith provided
evidence of judicially awarded attorney’s fees in the
relevant market that could have supported a higher
reasonable rate, we cannot conclude that the
magistrate judge clearly erred by awarding only the
contracted rates.”).
Relying on lower rates is contrary to Blanchard. In
Blanchard, 489 U.S. at 92-95 this Court rejected the
essence of the Court’s order that the reasonable rate
be limited by a lower fee provision in the client’s fee
agreement which derails an analysis of market rates.
In Blanchard the court stated:
As we understand § 1988’s provision for
allowing a “reasonable attorney’s fee,” it
30
contemplates reasonable compensation, in
light of all of the circumstances, for the time
and effort expended by the attorney for the
prevailing plaintiff, no more and no less.
Should a fee agreement provide less than a
reasonable fee calculated in this manner, the
defendant should nevertheless be required to
pay the higher amount. (emphasis added.)
489 U.S. at 93-94. Here, Secretary explicitly agreed to
have the court retain jurisdiction to pay reasonable
fees and costs. Blanchard’s reasoning is applicable to
the case under Chmielarz, 289 F.3d at 1320-21 (where
a settlement agreement over which the court retains
jurisdiction alters the parties’ position on fee shifting,
the plaintiff is a prevailing party). 10 The Settlement
Agreement entitles Griffith to reasonable fees and
costs.
Finally, the Secretary’s argument and the Court’s
order reject the unambiguous language of the
Settlement Agreement. This is a violation of contract
law.
For all of these reasons, the Court abused its
discretion when it made the clearly erroneous ruling
that the lower rates in the fee contract and presettlement billing rates were our reasonable hourly
rate.
931 F.3d at 1084-86 (in a contractual feeshifting case, statutory fee-shifting precedent should be applied.)
10 Home Depot,
31
II.
Fees on Fees
The Court erred when it denied completely a
motion for fees on fees, thus further penalizing
Griffith who under Paragraph 7 of the Fee Agreement
with her attorneys owes this firm for her share of
every hour put in to obtain an award from a judge.
Under Chmielarz, the court accepted jurisdiction over
fee-shifting portions of the Settlement Agreement
which changed the relationship of the parties on that
issue and entitled Griffith to reasonable fees and costs
as well as fees to litigate fees under fee shifting
statutes and case law. 11
The panel affirmed, in part, the district court’s
denial of fees on fees by focusing on the order retaining
jurisdiction and requiring a motion for fees and costs
to be filed within 30 days. In determining a party’s
entitlement to fees on fees, however, the court must
consider the results obtained in the party’s underlying
fee request. See Jean, 496 U.S. at 163 n.10.
Moreover, the fee shifting standards do not
separately discuss fees on fees. Another panel of the
Eleventh Circuit has previously held that even a local
rule cannot take away the right to fees on fees. Villano
v. City of Boynton Beach 254 F.3d 1302, 1306 (11th
Cir. 2001). The court held:
11 Home Depot also recognizes the right to fees for litigating
fees. 931 F.3d at 1093.
32
District Court Local Rule 7.3 requires that
motions for attorney’s fees and costs “be filed
and served within 30 days of entry of Final
Judgment or other dispositive order.” Record,
Vol. 8, Doc. 295, at 7. The magistrate judge
interpreted this rule to preclude all motions
“filed after 30 days of entry of final judgment,”
extending
that
interpretation
to
supplementation of the original motion. Id. It is
beyond dispute that “district courts remain free
to adopt local rules establishing timeliness
standards for the filing of claims for attorney’s
fees.” White v. New Hampshire Dep’t of
Employment Sec., 455 U.S. 445, 454, 102 S.Ct.
1162, 71 L.Ed.2d 325 (1982). However, we do
not accept the magistrate judge’s interpretation
of the local rule under review; moreover, we
would find a rule that eviscerated a statutory
right to fees and costs in conflict with federal
law.
Id.
Not surprisingly it is the practice in the Middle and
Southern Districts of Florida to file requests for fees
on fees after the original motion is filed. 12 Griffith’s
12 In Horne, Krop, and Fielder/Cote, this procedure allowed
the parties to resolve fees on fees without further litigation,
because they reached an agreement based upon the court’s
determination on the original fee request that set the hourly
rates and a percentage discount. This procedure fosters more
settlement and less litigation.
33
supplemental filings show that requests for fees on
fees came after the initial motion for fees and the
court’s order in Horne v. Barr, S.D. Fla. Case No. 1:12cv-23507. That was also the practice in Krop v.
Nicholson, M.D. Fla. Case No. 8:06-cv-157; Cote v.
Shinseki, M.D. Fla. Case No. 8:07-cv-01524. As stated
in Griffith’s motion for fees below, the fees-on-fees
request in Cote reflected the second motion was filed
three years after the original motion for fees. Here,
Griffith submitted her supplemental request after all
the pleadings on the issue of entitlement to fees were
filed but before the order on entitlement to fees was
entered. In all of those cases the motion for fees had a
paragraph stating they would be filed later. That was
in ¶36 of this motion. The panel’s Opinion sanctions a
forfeiture of an established right to fees on fees,
despite the fact that Griffith was not provided any
notice that her request for fees on fees had to be
submitted along with her original motion. That
necessarily created a forfeiture of fees on fees.
The language that entitled Griffith to fees on fees
is “reasonable attorney’s fees and costs.” That is true
under the statutory fee-shifting statutes even though
fees on fees are not explicitly mentioned. 13 Looking at
the Settlement Agreement and motion filed with the
court as well as the arguments filed by the parties, it
That is also true under contractual fee-shifting. According
to footnote 7 of Home Depot, the fee agreement, like the one at
issue here, discussed “reasonable attorney’s fees and costs.” That
authorized fees on fees. 931 F.3d at 1903.
13
34
is clear that Griffith was entitled to “reasonable
attorney’s fees and costs.” We are not aware of any
statutory or contractual fee-shifting case where a
court was permitted to take away a client’s right to
fees on fees when they were entitled to reasonable fees
and costs. Indeed, neither the district court nor the
panel cites to any caselaw in support of this notion. A
significant problem is that the argument the
Secretary made was not put into words in the
Settlement Agreement, motion or order. Remaining
silent on fees on fees is typical. It should not mean
that Griffith should have known to file a partial
request for fees-for-fees with the original fee petition
especially when it would have been impossible to do so
here. The court found that Griffith forfeited her right
to fees on fees by failing to do something that was not
specified and could not have been done in good faith
within the time purportedly required. A harsh result
for a client reacting to the Secretary’s effort to
increase her costs without recompense.
In Nat. Veterans Leg. Servs. Program v. U.S. Dept.
of Veterans Affairs, 1:96-cv-01740-NHL, 1999 WL
33740260, at *1 (D.D.C. Apr. 13, 1999) (“NVLSP’, the
court rejected the defendant’s argument that the
plaintiff’s supplemental request for fees on fees was
untimely under Fed. R. Civ. P. 54(d)(2)(b) even though
it was filed 28 days after the court granted attorney
fees and costs, because the defendant was not
prejudiced and “it would be unjust to work a complete
forfeiture.” The court went on the reject the
35
defendant’s
argument
that
the
plaintiff’s
supplemental request should be denied or reduced
because it was not included with the original fee
petition.
Here, there was no statement that Griffith should
have included fees-on-fees request with her original
motion. As the district court implicitly acknowledged,
the December 2019 Order was silent as to when a
supplemental motion must be filed. As in NVLSP,
Griffith notified the Secretary and the Court in her
original Motion (¶36) of her intentions to supplement
her request with fees-for-fees. Neither the Settlement
Agreement nor the Motion to the Court waived
Griffith’s rights to fees on fees. Therefore, the court
had no authority to deny fees on fees.
The fact that the panel found that Griffith could
have submitted all of the pre-January 27th fees on fees
with the original fee motion does not mean it could
have been done in good faith without estimation. Yet
it was not required by the language of the order, prior
case law, or standard practice to do so. It amounts to
a surprise forfeiture and fails to address Griffith’s
entitlement to fees on fees specifically. This will
undoubtedly embolden the Secretary to engage in
even more litigation against a “protected” employee.
CONCLUSION
The orders in this case will result in harm to many
clients and law firms contrary to Congressional
36
wishes. It will also embolden more not less fee
litigation. For the foregoing reasons, this Court should
grant this petition and issue a writ of certiorari to
review the judgment and opinion of the Eleventh
Circuit Court of Appeals.
Respectfully submitted,
JOSEPH D. MAGRI
Counsel of Record
SEAN M. MCFADDEN
MERKLE & MAGRI, P.A.
5601 Mariner St., Ste. 400
Tampa, Florida 33609
Telephone: 813-281-9000
Email:jmagri@merklemagri.com
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.