Petition for Writ of Certiorari — Cheryl Griffith, Petitioner v. Denis R. McDonough, Secretary of Veterans Affairs

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 20-14464

Non-Argument Calendar

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D.C. Docket No. 8:18-cv-00432-CPT

(Filed Sep. 29, 2021)

CHERYL GRIFFITH,

Plaintiff - Appellant,

versus

DENIS R. McDONOUGH,

Secretary, Department of Veterans Affairs,

Defendant - Appellee.

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Appeal from the United States District Court

for the Middle District of Florida

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(September 29, 2021)

Before JILL PRYOR, LUCK, and ANDERSON, Circuit

Judges.

App. 1

PER CURIAM:

Cheryl Griffith appeals the magistrate judge’s

award of attorneys’ fees in her employment discrimination case and his denial of her second motion for

attorneys’ fees, in which she sought fees for time her

attorneys spent seeking fees related to her original

motion. First, she argues that the magistrate judge

clearly erred when calculating her attorneys’ and paralegals’ reasonable rates and that he abused his discretion by awarding attorneys’ fees based on those

rates. Second, she argues that the magistrate judge

abused his discretion by denying her second motion for

attorneys’ fees as untimely.

I.

A district court’s award of attorneys’ fees is reviewed for abuse of discretion. In re Home Depot Inc.,

931 F.3d 1065, 1078 (11th Cir. 2019). “An abuse of discretion occurs if the judge fails to apply the proper legal standard or to follow proper procedures in making

the determination or bases an award upon findings of

fact that are clearly erroneous.” Id. (quoting ACLU of

Ga. v. Barnes, 168 F.3d 423, 427 (11th Cir. 1999)).

Under 42 U.S.C. § 2000e-16, employees of federal

agencies are permitted to sue the federal government

for employment discrimination based on race and

sex. 42 U.S.C. § 2000e-16(a), (c). Section 2000e-5(k) allows courts to award reasonable attorneys’ fees to

the prevailing party in litigation under §§ 2000e to

2000e-17. See 42 U.S.C. § 2000e-5(k); see also 42 U.S.C.

App. 2

§ 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 prohibits federal agencies from discriminating on the

basis of disability and allows employees of federal

agencies to sue the government and, if successful, recover attorneys’ fees. 29 U.S.C. § 791(a), (f ); see also 29

U.S.C. § 794a(a), (b) (referencing 42 U.S.C. §§ 2000e-16,

2000e-5(k)).

Where the parties agree that one party will pay

the other party’s legal fees, they agree to fee shifting,

and the “lodestar” method is used to calculate reasonable attorneys’ fees. See In re Home Depot, 931 F.3d at

1078-79, 1081-84 (applying lodestar method to contractual fee-shifting case). The lodestar is the number of

hours reasonably expended on the litigation multiplied

by a reasonable hourly rate. Hensley v. Eckerhart, 461

U.S. 424, 433-34 (1983).

Whether a particular amount is a reasonable

hourly rate is a finding of fact subsidiary to the total

award and, therefore, is reviewed for clear error.

Barnes, 168 F.3d at 436. A factual finding is clearly erroneous when, although there is evidence to support it,

we are “left with the definite and firm conviction that

a mistake has been committed.” Morrissette-Brown v.

Mobile Infirmary Med. Ctr., 506 F.3d 1317, 1319 (11th

Cir. 2007).

We have defined a “reasonable hourly rate” as the

“prevailing market rate in the relevant legal community for similar services by lawyers of reasonably

App. 3

comparable skills, experience, and reputation.” Norman v. Hous. Auth. of Montgomery, 836 F.2d 1292, 1299

(11th Cir. 1988). The relevant market for “determining

the reasonable hourly rate for an attorney’s services is

‘the place where the case is filed.’ ” Barnes, 168 F.3d at

437 (citing Cullens v. Georgia Dep’t. of Transp., 29 F.3d

1489, 1494 (11th Cir. 1994)). The party seeking attorneys’ fees “bears the burden of establishing that his requested rate is in line with prevailing market rates,”

and this requires more than just “the affidavit of the

attorney performing the work.” Norman, 836 F.2d at

1299. Since courts have historically been considered

experts on the question of fees, the court “may consider

its own knowledge and experience concerning reasonable and proper fees.” id. at 1303 (quoting Campbell v.

Green, 112 F.2d 143, 144 (5th Cir. 1940)). Moreover,

when a client and an attorney have contracted for services at a particular rate, that rate “is a strong indication of a reasonable rate.” Tire Kingdom, Inc. v. Morgan

Tire & Auto, Inc., 253 F.3d 1332, 1337 (11th Cir. 2001).

But while the contracted rate is relevant evidence of a

reasonable rate, it does not “necessarily act as a cap or

ceiling in determining the reasonable hourly rate.” Id.

A court, therefore, can award a fee above the contracted rate if the higher award is a reasonable hourly

rate.

There is a strong presumption that the lodestar

yields a reasonable fee. In re Home Depot, 931 F.3d at

1082. However, in rare and exceptional cases, the lodestar may be enhanced if it does not reflect the true

value of counsels’ work. Id. The lodestar has subsumed

App. 4

most of the factors that could be considered to justify

an enhancement. Id. at 1082-83. Those subsumed factors, therefore, are already accounted for and cannot

justify an enhancement. Id. at 1082-83. The subsumed

factors include the novelty and complexity of the issues, the skill and experience of the attorneys, and the

results obtained. Id. at 1083.

Here, the magistrate judge did not abuse his discretion in his award of attorneys’ fees. The magistrate

judge found the rates Griffith and her attorneys

agreed-upon in their contract to be reasonable hourly

rates. While Griffith provided evidence of judicially

awarded attorneys’ 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. The fact that a client and attorney have agreed on the contracted rates

is “a strong indication of a reasonable rate.” Tire Kingdom, 253 F.3d at 1337. The awarded rates, moreover,

were the contracted rates for a case that was resolved

by pre-trial settlement, as this case was. Although

Griffith maintains that those agreed-upon rates are

discounted from the actual market rate, the magistrate

judge was allowed to rely on his own experience and

expertise in finding that the contracted rates were

within the bounds of reasonableness for this type of

case. See Tire Kingdom, 253 F.3d at 1336-37; see Norman, 836 F.2d at 1303. Because the magistrate judge

did not clearly err in determining a reasonable hourly

rate for the lodestar and because the lodestar subsumes most of the factors relevant to enhancing a fee

App. 5

award, the magistrate judge did not abuse his discretion in his award of attorney’s fees. Accordingly, we affirm this portion of the magistrate judge’s order.

II.

A court’s decision to deny a request for attorneys’

fees as untimely is reviewed for abuse of discretion.

Clark v. Hous. Auth. of City of Alma, 971 F.2d 723, 724

(11th Cir. 1992).

We have concerns about the magistrate judge’s

finding that the second motion for attorneys’ fees was

untimely and should be disregarded entirely. On the

one hand, we cannot conclude that the magistrate

judge abused his discretion with respect to Griffith’s

fee request for her use of an expert because those fees

likely could have been estimated at the time the original motion was filed. However, it seems clear that at

least some of the hours expended by counsel were

incurred after the filing of the original motion for attorneys’ fees and could not have been reasonably predicted as to scope or amount. For example, Griffith’s

reply brief to Defendant’s response to her original motion was filed on March 5, 2020, well after the original

motion for fees was filed. Additionally, we cannot agree

with the magistrate judge’s assessment that much of

the work done after the filing of the original attorneys’

fees motion was largely unnecessary. The magistrate

judge, therefore, abused his discretion in refusing to

take into consideration counsel’s work performed after

the filing of the original motion. Accordingly, we vacate

that portion of the magistrate judge’s order.

App. 6

III.

For the foregoing reasons, the judgment below is

affirmed in all respects except as to the attorneys’ fees

incurred after the filing of the original motion that

could not have been included therein and were not susceptible to reasonable prediction at the time of filing.

AFFIRMED IN PART; VACATED IN PART.

App. 7

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

CHERYL GRIFFITH,

Plaintiff,

v.

Case No. 8:18-cv-432-T-CPT

ROBERT WILKIE,

Secretary, U.S. Department

of Veterans Affairs,

Defendant.

/

ORDER

(Filed Sep. 30, 2020)

Before the Court are: (1) Plaintiff Cheryl Griffith’s

Motion for Attorneys Fees and Costs (Doc. 31), the response thereto filed by Defendant Robert Wilkie, Secretary of the United States Department of Veterans

Affairs (VA) (Doc. 34), and Griffith’s reply (Doc. 39); as

well as (2) Griffith’s Supplemental Motion for Attorneys

Fees and Costs (Doc. 40) and the VA’s response in opposition (Doc. 43). For the reasons discussed below,

Griffith’s first motion is granted in part and denied in

part, and her second motion is denied.

I.

Griffith initiated this action against the VA in February 2018 pursuant to Title VII of the Civil Rights Act

of 1964, 42 U.S.C. §§ 2000e, et seq., and section 501 of

App. 8

the Rehabilitation Act of 1973, 29 U.S.C. § 791, asserting four counts: (1) failure to reasonably accommodate

her disability; (2) racial discrimination; (3) retaliation;

and (4) a hostile work environment. (Doc. 1). The parties attempted to resolve the matter through mediation in May 2019 but reached an impasse. (Doc. 19).

The VA thereafter moved for summary judgment

(Doc. 20), which led Griffith to voluntarily drop her

race-based discrimination and retaliation claims. (Doc.

21). The Court granted the VA’s summary judgment

motion as to the two dropped counts but denied the

VA’s motion on the remaining two claims. (Doc. 22).

The parties ultimately settled their dispute in December 2019. (Doc. 29). As part of that settlement, the

VA agreed to (1) pay Griffith $10,000, (2) allow her to

continue teleworking, and (3) reimburse her for her

“costs and attorney’s fees in the amount determined

reasonable by order of the United States District

Court.” (Doc. 29-3 at 1-2). The VA, however, did not admit any liability or concede that Griffith was the “prevailing party.” (Doc. 29-3; Doc. 34). As requested by the

parties, the Court entered an Order retaining jurisdiction of the cost and fee matter. (Doc. 30).

Citing 42 U.S.C. § 2000e-5(k) and the terms of the

parties’ settlement agreement, Griffith timely moved

for an award of $141,572.50 in attorneys’ fees and

$8,933.48 in costs. (Doc. 31). In response, the VA advised that, while it did not object to Griffith’s request

for costs, her sought-after fee award should be substantially reduced to no more than $58,893. (Doc. 34). With

App. 9

the Court’s permission, Griffith filed a reply to the VA’s

response. (Doc. 39).

Several months later, Griffith filed her supplemental motion requesting additional attorneys’ fees

and costs, which she claims were incurred in seeking

her original fee award. (Doc. 40). The VA objected to

Griffith’s supplemental motion as both untimely and

meritless. (Doc. 43). Griffith’s counsel subsequently

filed three notices citing additional authority, the last

of which was filed on September 25, 2020. (Docs. 4446). The matter is now ripe for resolution.

II.

The Court begins with Griffith’s first motion for an

award of reasonable attorneys’ fees. (Doc. 31). What

constitutes a reasonable fee is a matter within the

Court’s sound discretion. Norman v. Hous. Auth. of

Montgomery, 836 F.2d 1292, 1304 (11th Cir. 1988). In

determining reasonableness, federal courts employ the

“lodestar” method. Id. at 1299; Rodriguez v. Marble

Care Int’l, Inc., 863 F. Supp. 2d 1168, 1185 (S.D. Fla.

2012) (“The lodestar method of calculating attorney’s

fees has become the ‘guiding light’ of the federal courts’

jurisprudence for calculating a reasonable attorney’s

fee.”) (quoting Perdue v. Kenny A., 559 U.S. 542 (2010)).

The “lodestar” amount is calculated by multiplying the reasonable hours spent by a reasonable hourly

rate. Padurjan v. Aventura Limousine & Transp. Serv.,

Inc., 441 F. App’x 684, 686 (11th Cir. 2011) (per curiam)

(citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983));

App. 10

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

423, 427 (11th Cir. 1999). In reaching the lodestar,

courts may look to the factors articulated in Johnson v.

Ga. Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974).

In re Home Depot Inc., 931 F.3d 1065, 1090-91 (11th

Cir. 2019) (quoting Bivins v. Wrap It Up, Inc., 548 F.3d

1348, 1352 (11th Cir. 2008)).1

Fee applicants bear the burden of tendering satisfactory evidence that demonstrates the reasonableness

of both the hourly rates requested and the amount of

time expended. Norman, 836 F.2d at 1303 (citing Hensley, 461 U.S. at 437); Maciejczyk v. You Fit, Inc., 2013

WL 7186419, at *1 (M.D. Fla. Dec. 12, 2013), report and

recommendation adopted, 2014 WL 585067 (M.D. Fla.

Feb. 12, 2014). A party opposing a fee application, however, must also submit specific and “reasonably precise” objections and proof. Barnes, 168 F.3d at 428

(quoting Norman, 836 F.2d at 1301); see also Duckworth v. Whisenant, 97 F.3d 1393, 1397 (11th Cir. 1996)

(per curiam) (“[T]he law in this circuit commands that

1

The Johnson factors are: (1) the time and labor required;

(2) the novelty and difficulty of the questions involved; (3) the skill

required to perform the legal services properly; (4) the preclusion

of other employment due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or other circumstances; (8) the

amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the undesirability of the

case; (11) the nature and length of the professional relationship

with the client; and (12) awards in similar cases. 488 F.2d at 71719. As the Eleventh Circuit recently explained, however, these

factors are “almost always subsumed in the lodestar.” Home Depot, 931 F.3d at 1091.

App. 11

both the proof of the hours spent in litigation and any

corresponding objections posed be voiced with a similar exactitude.”).

Once the lodestar has been determined, there is a

“strong presumption” that it constitutes “the reasonable sum the attorneys deserve.” Bivins, 548 F.3d at

1350 (citation omitted). Nonetheless, it “can be adjusted upward or downward based on other considerations, including the results obtained by the attorneys

for their client.” Walker v. Iron Sushi LLC, 752 F. App’x

910, 913 (11th Cir. 2018) (per curiam) (citing Hensley,

461 U.S. at 434).

“Ultimately, the computation of a fee award is necessarily an exercise of judgment, because ‘[t]here is no

precise rule or formula for making these determinations.’ ” Villano v. City of Boynton Beach, 254 F.3d 1302,

1305 (11th Cir. 2001) (quoting Hensley, 461 U.S. at

436).

On appeal, an award of attorneys’ fees and costs

will be upheld unless it constitutes an abuse of discretion. Perez v. Carey Intern., Inc., 373 F. App’x 907, 90910 (11th Cir. 2010) (per curiam) (citing Atlanta Journal

& Constitution v. City of Atlanta Dep’t of Aviation, 442

F.3d 1283, 1287 (11th Cir. 2006)).

In this case, Griffith was represented by the law

firm of Merkle & Magri, P.A. (M&M) before both the

Court and the Equal Employment Opportunity Commission (EEOC). (Doc. 31 at 4-5; Doc. 31-3). In support of her fee request for M&M’s efforts in these two

fora, Griffith submits the declarations of several of the

App. 12

lawyers and paralegals involved with her case (Docs.

31-2; 31-5; 31-6; 31-7), M&M’s billing records (Doc. 313), Griffith’s fee agreement with the law firm (Doc. 3110), and a declaration authored by an M&M legal assistant attesting to the range of federal employment

discrimination cases filed in the Middle and Southern

Districts of Florida (Doc. 31-9). In addition, Griffith offers the declaration of J. Robert McCormack, an independent attorney who reviewed the case file and who

asserts that the sought-after fees are reasonable. (Doc.

31-8).

The hourly rates, hours expended, and total fee

amount Griffith requests are summarized as follows:

Timekeeper/Title

Hourly

Hours

Rate Expended

Fees

Joseph Magri,

Partner

Sean McFadden,

Associate

Gerard Roble,

Attorney

Meagan RossCulpepper, Paralegal

Angela Merkle,

Paralegal

TOTAL

$550

183.7

$101,035.00

$350

11.8

$4,130.00

$200

68.6

$13,720.00

$125

35.7

$4,462.50

$150

121.5

$18,225.00

421.3

$141,572.50

(Doc. 31 at 4-5, 11; Doc. 31-3).

As alluded to above, the VA disputes the reasonableness of the hourly rates Griffith seeks, arguing that

she should be limited to those rates contemplated in

App. 13

her fee agreement with M&M. (Doc. 34). As reflected in

the firm’s billing records and as Griffith acknowledges,

the rates M&M charged her in this case are far lower

than those she now requests. Those contractual rates

are $300 for partner Joseph Magri, $235 for associate

Sean McFadden, $130 for attorney Gerard Roble, $95

for paralegal Meagan Blackshear Ross-Culpepper, and

$85 for paralegal Angela Merkle. And, although the VA

does not specifically object to the number of hours

M&M expended on this case, it asks that the Court apply two across-the-board reductions to the lodestar

amount. Id. The Court addresses each of these issues

in turn, beginning with the hourly rates sought by

M&M.

A. Reasonable Hourly Rates

It is well settled that a “reasonable hourly rate is

the prevailing market rate in the relevant legal community for similar services by lawyers of reasonably

comparable skills, experience, and reputation.” Duckworth, 97 F.3d at 1396 (quoting Norman, 836 F.2d at

1299). The relevant legal community “for purposes of

determining the reasonable hourly rate for an attorney’s service is the place where the case is filed.”

Barnes, 168 F.3d at 437 (quotation and citation omitted).

In determining reasonable hourly rates, the court

is not tethered to the parties’ submissions. Instead, because the court “ ‘is itself an expert on the question

[of reasonable hourly rates, it] may consider its own

knowledge and experience concerning reasonable and

App. 14

proper fees and may form an independent judgment either with or without the aid of witnesses as to value.’ ”

Norman, 836 F.2d at 1303 (quotation and citations

omitted).

One of the factors the Court may take into account

in determining a reasonable hourly rate is what a lawyer charges his or her fee-paying clients. Indeed, as the

Eleventh Circuit has explained, such a figure “is powerful, and perhaps the best, evidence of [a lawyer’s]

market rate; that is most likely to be what [the lawyer]

is paid as ‘determined by supply and demand.’ ”

Dillard v. City of Greensboro, 213 F.3d 1347, 1354-55

(11th Cir. 2000) (per curiam) (quoting Blum v. Stenson,

465 U.S. 886, 895 n.11 (1984) and citing Norman, 836

F.2d at 1299). As a result, while “not necessarily determinative,” the agreed-upon billing rate between an attorney and his or her client is considered to be “a

strong indication of a reasonable rate.” Tire Kingdom,

Inc. v. Morgan Tire & Auto, Inc., 253 F.3d 1332, 1337

(11th Cir. 2001) (per curiam).

In Tire Kingdom, the Eleventh Circuit addressed

the issue of whether the district court erred in awarding attorneys’ fees based on an hourly rate that exceeded the hourly rate set forth in the contract

between the defendants and their counsel. Id. at 1336.

In resolving this issue, the Court stated that it was

mindful of the admonition made by the former Fifth

Circuit in Johnson 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

as to [that] amount.” Id. at 1337 (quoting Johnson, 488

App. 15

F.2d at 718). The Court also recognized, however, that

the Supreme Court has explained since Johnson that,

“at least in the context of contingent fee arrangements,

a fee agreement should not place a strict limit on a fee

award.” Id. (citing Blanchard v. Bergeron, 489 U.S. 87,

96 (1989) (“The trial judge should not be limited by the

contractual fee agreement between plaintiff and counsel.”)). Instead, as the court in Tire Kingdom observed,

the Supreme Court has made clear that “the reasonable hourly rate should be determined based on the reasonable worth of services rendered, so long as the rate

results in no windfall for the prevailing party.” Id.

Against this backdrop, the court in Tire Kingdom

found no abuse of discretion in the trial court’s use of

an hourly rate that exceeded the contractual rate

where the “overall difference between the negotiated

rate and the [rate awarded was] less than $1000.” Id.

Since Tire Kingdom, district courts in this circuit

faced with a disparity between a litigant’s contractual

fee rate with counsel and a higher purportedly reasonable rate have taken varying approaches. See, e.g., Fla.

Int’l Univ. Bd. of Trustees v. Fla. Nat’l Univ., Inc., 2019

WL 3412159, at *4 (S.D. Fla. June 17, 2019), report and

recommendation adopted, 2019 WL 5260154 (S.D. Fla.

Aug. 28, 2019) (declining to extend Tire Kingdom to allow for an award of a higher hourly rate where “the

difference between the agreed-upon rates and the requested rates [was] hundreds of thousands of dollars”);

Regions Bank v. Kaplan, 2018 WL 4403828, at *10-11

(M.D. Fla. June 25, 2018), report and recommendation

adopted, 2019 WL 1417851 (M.D. Fla. Mar. 29, 2019)

App. 16

(finding that the court is “free to award a higher fee

than the one the firm actually charged” the client but

nonetheless concluding that “the reasonable hourly

rates approximate those actually paid”); Kakawi Yachting, Inc. v. Marlow Marine Sales, Inc., No. 8:13-cv-1408T-TBM (M.D. Fla. Sept. 6, 2016) (awarding contractual

rates the attorneys charged their client rather than

their higher “customary rates,” despite the fact that

the requested higher rates were reasonable), appeal dismissed, No. 16-16415 (11th Cir. Dec. 6, 2016); Fielder v.

Shinseki, No. 8:07-cv-1524-T-TBM (M.D. Fla. Apr. 26,

2010) (awarding hourly rates higher than the contractual rates following jury verdict for plaintiff ); City

of Huntsville v. Proliance Energy, LLC, 2005 WL

8158017, at *1 (N.D. Ala. July 1, 2005) (authorizing

hourly rates above the contract amount and reasoning

“that, by awarding the plaintiff fees based upon a market rate, it will not run afoul of Tire Kingdom’s admonition against bestowing a ‘windfall for the prevailing

party’ because the market rate is, per se, reasonable

and therefore not a windfall”).

In this case, while the Court is not necessarily

bound by the contractual rates M&M charged Griffith,

the circumstances presented persuade it that such

rates are appropriate and proper. To begin, these rates

are within the bounds of reasonableness for this legal

community based upon the Court’s knowledge of and

experience in federal employment cases like this one.

Norman, 836 F.2d at 1303.

Furthermore, unlike the situation in Tire Kingdom,

the difference here between the fee amount calculated

App. 17

using the agreed-upon rates and the fee amount based

upon the rates sought by M&M is more than $60,000,

which equates to roughly a 75% increase. This is not

surprising because the rates that Griffith now contends are reasonable—$550 per hour for Joseph Magri, $350 per hour for Sean McFadden, $200 per hour

for Gerard Roble, $125 per hour for Meagan Blackshear Ross-Culpepper, and $150 per hour for Angela

Merkle—represent a dramatic escalation of the contractual rates for these individuals. Indeed, as the VA

observes, the rates Griffith requests would result in increases in the contractual rates of more than 80% for

Magri; approximately 50% for McFadden and Roble;

more than 30% for Ross-Culpepper; and about 75% for

Merkle. (Doc. 34 at 6).

While the Court recognizes that Griffith’s fee

agreement with M&M contemplates the potential for a

court-ordered higher amount providing that “[t]he firm

is entitled to any attorney fees awarded or collected in

excess of this fee agreement with [the] client” (Doc. 3110 at 2), such a substantial inflation of the hourly rates

is unwarranted. Most striking is the $550 per hour rate

requested by Magri, which significantly exceeds the

rates typically charged or awarded in this legal community for employment litigation. See, e.g., Gonzalez v.

Rainforest Cafe, Inc., 2018 WL 3635110, at *3-5 (M.D.

Fla. Apr. 4, 2018), report and recommendation adopted,

2018 WL 3635085 (M.D. Fla. Apr. 19, 2018) (declining

to award requested rate of $550 per hour and instead

finding $325 per hour to be reasonable in a Family

Medical Leave Act and reasonable accommodation of

App. 18

pregnancy case). Indeed, Griffith cites no case in which

a $550 per hour rate has been approved for Magri (or

any other attorney) in this legal community or, for that

matter, in the entire District.2 The closest Griffith

comes is in McCormack’s Declaration, where McCormack cites recent employment cases authorizing

hourly rates of $450 for an attorney with more than

thirty years’ experience and $425 for an attorney with

nearly fifteen years’ experience. (Doc. 31-8 at 5); see

also (Doc. 31 at 18) (conceding that “[t]he highest

awarded hourly rate appears to be $450.00 to an attorney with 30 years’ experience”). Although Magri’s skill,

experience, and reputation are impressive (Doc. 31 at

18), Griffith’s submissions simply do not support a

finding that $550 is a proper market rate in the circumstances present in this case.

The requested hourly rates for the remaining attorneys—McFadden and Roble at $350 and $200, respectively—are less concerning, but are still too high,

particularly given that they represent roughly a 50%

hike of the agreed-upon rates. The same can be said of

the rates sought for the two paralegals, which likewise

substantially exceed the rates charged to Griffith.

In sum, taking into account the Johnson factors,

the Court’s own knowledge and experience in handling

2

Griffith’s supplemental authority (Docs. 44-46), in which

she cites Horne v. Barr, No. 12-cv-23507 (S.D. Fla.), does not dictate a different conclusion. The fees in that out-of-district case

were awarded to a successful plaintiff following a jury trial, and

the Court does not find that the court’s order or the parties’ stipulation in that action have persuasive value here.

App. 19

federal employment cases like this one, and the record

before it, the Court finds no reason to authorize rates

over and above the contractual rates. As Griffith tacitly

acknowledges, these rates are designed to induce pretrial settlements (Doc. 31 at 12), and that is what occurred here. Although the parties did not resolve her

case as quickly as Griffith might have liked, it did

settle in advance of the scheduled trial. And, despite

seeking judicial resolution of the fee amount to be

awarded as part of the parties’ settlement, the pretrial settlement rates remain applicable and—in the

Court’s view—proper and reasonable. Furthermore, as

noted above, utilizing the contractual rates also prevents a windfall. Accordingly, the Court awards the

contracted hourly rates of $300 for Joseph Magri, $235

for Sean McFadden, $130 for Gerard Roble, $95 for

Meagan Blackshear Ross-Culpepper, and $85 for Angela Merkle.

B. Reasonable Hours Expended

With regard to the second half of the lodestar

equation, it is well settled that “[f ]ee applicants are required to exercise ‘billing judgment’ ” in tabulating the

reasonable hours spent litigating a matter. Maciejczyk,

2013 WL 7186419, at *2 (quoting Barnes, 168 F.3d at

428). This “means they must exclude from their fee applications excessive, redundant, or otherwise unnecessary [hours], which . . . would be unreasonable to bill

to a client and therefore to one’s adversary irrespective

of the skill, reputation or experience of counsel.” Barnes,

168 F.3d at 428 (quotation and citations omitted). And,

App. 20

“[i]f fee applicants do not exercise billing judgment,

courts are obligated to do it for them.” Id. As the Eleventh Circuit has observed in this regard, “[c]ourts are

not authorized to be generous with the money of others, and it is as much the duty of courts to see that excessive fees and expenses are not awarded as it is to

see that an adequate amount is” granted. Id. That said,

the trial courts “need not, and indeed should not, become green-eyeshade accountants.” Fox v. Vice, 563

U.S. 826, 838 (2011). “The essential goal in shifting fees

. . . is to do rough justice, not to achieve auditing perfection.” Id.

As noted by Griffith in her motion and as reflected

in the eighty-five pages of M&M’s billing records she

submits, the firm began representing Griffith in late

2014 in connection with the EEOC administrative process. (Doc. 31-3). During that time frame, Griffith’s attorneys and their paralegals spent 237 hours in

pursuing Griffith’s administrative claims (109.8 hours

by Magri, 10 hours by McFadden, 19.6 hours by Roble, 35.7 hours by Ross-Culpepper, and 61.9 hours by

Merkle). (Doc. 31 at 4-5; Doc. 31-3). When the EEOC

proceeding did not result in a resolution of her claims,

Griffith filed her complaint in this action in February

2018. During the ensuing twenty-two months leading

up to the parties’ settlement, M&M’s attorneys and

paralegals expended 184.3 hours litigating the case

in federal court (73.9 hours by Magri, 1.8 hours by

McFadden, 49 hours by Roble, and 59.6 hours by

Merkle). Id.

App. 21

In assessing the reasonableness of these hours,

the Court notes as an initial matter that there is no

dispute that Griffith is entitled to recoup her reasonable fees for both the EEOC proceedings and this federal action. (Docs. 31, 34); see also Mertz v. Marsh, 786

F.2d 1578, 1580 (11th Cir. 1986) (citing New York Gaslight Club, Inc. v. Carey, 447 U.S. 54 (1980) for the proposition that “the word ‘proceedings’ include[s] state

and federal, administrative and procedural proceedings” and noting that the Supreme Court “upheld an

award of attorney’s fees for services rendered in state

administrative proceedings in connection with an EEO

charge”).

In winding its way through both the EEOC process and the federal system, this matter spanned more

than five years, required considerable discovery and

motion practice at both levels, and entailed counsel’s

participation in multiple EEOC hearings, an EEOC

settlement conference, a formal mediation in the federal action, and, finally, a series of informal settlement

negotiations. Upon review of the billing records (Doc.

31-3), the Court finds that the number of hours (totaling 421.3 hours) M&M devoted to pursuing Griffith’s

claims over the course this roughly five-year period—

while substantial—is reasonable. The fact that the VA

does not object to the reasonableness of the hours expended by M&M supports this conclusion.

C. Adjustment to Lodestar

As noted above, the VA asks that the Court reduce

the lodestar in two respects. First, the VA submits that

App. 22

Griffith’s fees should be decreased by at least twentyfive percent for the time period up to and including the

date (i.e., June 14, 2019) on which Griffith filed her response to the VA’s summary judgment motion (Doc.

21), given that Griffith voluntarily dismissed two of

her four claims in response to the VA’s motion. (Doc. 34

at 8-13). Second, the VA requests that Griffith’s fees

attributable to the parties’ settlement negotiations,

which occurred between August 22 and December 27,

2019, be halved to account for Magri’s alleged misrepresentation that he charged a lower hourly rate for

settlement talks. Id. at 13-14. Griffith opposes both reductions. (Doc. 39).

Beginning with the VA’s latter request, the Court

finds no reason to pare down the lodestar amount for

the settlement negotiations. As discussed above, the

hourly rates charged by M&M already reflect the “reduced rates” designed by the firm to facilitate settlement agreements.3 Furthermore, the Court does not

find, nor does the VA argue, that the contractual rates

or the time spent by M&M to negotiate and finalize

the settlement agreement are unreasonable. To the

contrary, during the approximately four-month span

dedicated to these efforts, the firm accrued only

$6,241.50 in billable time based upon the agreed-upon

rates it charged Griffith.

3

To the extent the VA claims that Magri agreed to further

reduce his rates from the contract amounts and should not now

be permitted to benefit from this alleged “misrepresentation,” the

Court does not find this argument sufficiently supported by the

evidence submitted.

App. 23

The Court is likewise unpersuaded by the VA’s argument seeking at least a quarter reduction of the fees

through June 14, 2019. The gist of that argument is

that Griffith is not the prevailing party in this case,

that she is therefore entitled to reasonable fees only as

a result of the parties’ settlement agreement, and that

she should not be compensated for the two claims she

dropped at the summary judgment stage. (Doc. 34 at

8). In support of this contention, the VA relies on several cases in which courts reduced attorneys’ fees predicated upon fee-shifting statutes because the party

prevailed on some claims but not others. (Doc. 34 at 814) (citing M.H. v. Comm’r of the Ga. Dep’t of Cmty.

Health, 656 F. App’x 458 (11th Cir. 2016) (fee-shifting

under 42 U.S.C. § 1988); Shannon v. Bellsouth Telecomm., Inc., 292 F.3d 712 (11th Cir. 2002) (fee-shifting

under 42 U.S.C. § 2000e-5(k)); Goodridge v. Astrue,

2011 WL 13173911 (N.D. Ga. Aug. 11, 2011) (same);

Johnson v. Potter, 2011 WL 672347 (M.D. Fla. Feb. 17,

2011) (same); Davenport v. City of Columbus, Ga., 2009

WL 235253 (M.D. Ga. Jan. 30, 2009) (same)).

Griffith counters that the VA’s argument conflicts

with the Supreme Court’s opinion in Hensley and the

Eleventh Circuit’s decision in In re Home Depot. In

Hensley, the Supreme Court examined attorney’s fees

under a fee-shifting statute, 42 U.S.C. § 1988, and instructed that, given the interrelated nature of civil

rights claims and legal theories, “the district court

should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.” 461 U.S. at 435. Thus,

App. 24

the Court directed that “[w]here a plaintiff has obtained excellent results, his attorney should recover a

fully compensatory fee” and “the fee award should not

be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit.” Id.

In Home Depot, the Eleventh Circuit was called

upon to resolve a dispute involving the amount of attorney’s fees to be paid under a contractual agreement,

rather than a fee shifting statute. 931 F.3d at 1081. The

Eleventh Circuit reasoned that because the fees were

to be “awarded pursuant to a contract, not a statute,

and [because] there [wa]s no prevailing-party limitation in the settlement agreement . . . the prevailingparty limitation d[id] not apply, and the District Court

did not need to deduct time spent on discrete and unsuccessful claims.” Id. at 1087. The Court found that

the issue instead was “simply whether the time spent

was reasonable, which [wa]s the standard set in the

agreement.” Id.

The Court finds that Griffith has the better argument here. As the VA tacitly concedes, the prevailing

party cases to which it cites arguably do not apply to

contractual fee-shifting cases such as this one. In any

event, the VA presents no credible basis to conclude

that Griffith’s race discrimination and retaliation

claims were discrete and unrelated to her disability

discrimination and reasonable accommodation claims,

or that she obtained substantially less relief than what

she would have achieved had she prevailed on all four

claims.

App. 25

In addition, based on the record before it, the

Court finds no reason why Griffith’s attorneys’ fees

should be reduced to account for the two claims she

dropped at the summary judgment stage. Significantly,

the parties’ settlement agreement contains no provision for reducing the reasonable fees incurred for those

claims. See (Doc. 29-3). Nor does the settlement agreement contain a prevailing party limitation. Id. Rather,

the agreement simply provides that the VA is to “pay

[Griffith’s] costs and attorney’s fees in the amount determined reasonable by order of the United States District Court.” Id. at 2. Notably, it additionally includes a

release by Griffith of “any and all claims, demands, and

causes of action, whether known or unknown, which

[Griffith] may have had, may now have, or may hereafter discover arising out of any event alleged in the

Complaint . . . including but not limited to claims and

damages for any alleged violations of the Rehabilitation Act and Title VII of the Civil Rights Act of 1964.”

Id. at 3. The VA’s position that it should now be excused from paying the reasonable fees incurred as a

result of the entirety of the litigation is not tenable.

III.

As noted above, Griffith also seeks $8,933.48 in

costs (Doc. 31), to which the VA does not object (Doc.

34). Upon review of the matter, the Courts finds the

sought-after costs to be reasonable and, as such, grants

Griffith’s request. See Lathem v. Dep’t of Children &

Youth Servs., 172 F.3d 786, 794 (11th Cir. 1999) (noting

that section 2000e-5(k) does not distinguish between

App. 26

taxable and non-taxable costs); Williams v. Consol. City

of Jacksonville, 2006 WL 4794173, at *11 (M.D. Fla.

Sept. 11, 2006) (explaining that “the ‘attorney’s fee’ allowed by Section 2000e-5(k) . . . include[s] ‘reasonable

out-of-pocket expenses incurred by the attorney which

are normally charged to a fee-paying client, in the

course of providing legal services, such as postage, photocopying, paralegal services, long distance telephone

charges, and travel costs”) (internal quotation marks

and citation omitted), aff ’d, 237 F. App’x 508 (11th Cir.

2007).

IV.

The final matter before the Court is Griffith’s supplemental motion seeking $28,695 in attorney’s fees

for the time period from January 2 through April 30,

2020, and costs for her fee expert, McCormack, in the

amount of $4,794. (Docs. 40, 40-3). This request fails

for several reasons.

To begin, it is untimely. In accordance with the

parties’ settlement agreement and their attendant request to the Court (Doc. 29), the Court entered an Order in late December 2019 dismissing this action with

prejudice but retaining jurisdiction for the limited purpose of resolving Griffith’s petition for attorneys’ fee

and costs (Doc. 30). In its Order, the Court directed

Griffith to file her petition for attorneys’ fees and costs

no later than thirty days therefrom. Id. The Court

made no provision for resolving multiple motions for

fees and costs, and Griffith did not ask for permission

to submit such additional requests for relief.

App. 27

Furthermore, the majority of the fees and all of the

costs Griffith seeks in her supplemental motion could

have—and should have—been presented to the Court

in her original motion. The Court notes, for example,

that the attorneys’ fees reflected in the billing invoices

she submits through January 27, 2020 (Doc. 40-3)

could have been requested by way of her earlier motion. The Court also finds that the attorneys’ fees incurred thereafter were largely unnecessary given the

posture of the case.

Finally, the costs sought for McCormack’s review

of the file and the preparation of his declaration would

have been known to Griffith when she submitted her

first motion and should have been included therein.4

Griffith does not argue otherwise.

V.

Accordingly, for the reasons above, the Court

hereby ORDERS:

1. Griffith’s Motion for Attorneys Fees and Costs

(Doc. 31) is granted in part and denied in part. Griffith

is awarded $80,520 in attorneys’ fees and $8,933.48 in

costs. Griffith’s attorneys’ fees award is calculated as

follows:

4

McCormack apparently spent 9.4 hours of time between

January 15 and 27, 2020, researching fee comparison issues and

drafting his declaration at a rate of $510 per hour. (Doc. 40-3 at

8-9).

App. 28

Timekeeper/Title

Hourly

Hours

Rate Expended

Fees

Joseph Magri,

Partner

Sean McFadden,

Associate

Gerard Roble,

Attorney

Meagan RossCulpepper, Paralegal

Angela Merkle,

Paralegal

TOTAL

$300

183.7

$55,110.00

$235

11.8

$2,773.00

$130

68.6

$8,918.00

$95

35.7

$3,391.550

$85

121.5

$10,327.50

421.3

$80,520.00

2. Griffith’s Supplemental Motion for Attorneys

Fees and Costs (Doc. 40) is denied.

DONE and ORDERED in Tampa, Florida, this

30th day of September 2020.

/s/ Christopher P. Tuite

HONORABLE

CHRISTOPHER P. TUITE

United States Magistrate Judge

Copies to:

Counsel of record

App. 29

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

--------------------------------------------------------------------------------------------------------

No. 20-14464-CC

--------------------------------------------------------------------------------------------------------

CHERYL GRIFFITH,

Plaintiff - Appellant,

versus

DENIS R. McDONOUGH,

Secretary, Department of Veterans Affairs,

Defendant - Appellee.

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Appeal from the United States District Court

for the Middle District of Florida

-----------------------------------------------------------------------

(Filed Feb. 10, 2022)

ON PETITION(S) FOR REHEARING AND PETITION(S) FOR REHEARING EN BANC

Before JILL PRYOR, LUCK, and ANDERSON, Circuit

Judges.

PER CURIAM:

The Petition for Rehearing En Banc is DENIED, no

judge in regular active service on the Court having requested that the Court be polled on rehearing en banc.

(FRAP 35) The Petition for Panel Rehearing is also

denied. (FRAP 40)

App. 30