                                                              [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________            FILED
                                                     U.S. COURT OF APPEALS
                                  No. 09-14734         ELEVENTH CIRCUIT
                                                           MAY 27, 2010
                              Non-Argument Calendar
                                                            JOHN LEY
                            ________________________
                                                             CLERK

                      D. C. Docket No. 07-80159-CV-DMM

CHRISTOPHER BIVINS,


                                                                 Plaintiff-Appellant,

                                      versus

WRAP IT UP, INC.,
d.b.a. Nature's Way Cafe,
ANNIE RASO,


                                                             Defendants-Appellees.

                            ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         _________________________
                                 (May 27, 2010)

Before CARNES, MARTIN and KRAVITCH, Circuit Judges.

PER CURIAM:

      This case is before us again for consideration of the award of attorney’s fees
in this discrimination case. After a bench trial resulted in a verdict and $10,000

damages award in his favor, plaintiff Bivins sought more than $ 245,000 for

attorney’s fees, expert fees, and costs under 42 U.S.C § 1988. The district court

reduced the number of hours billed and calculated the lodestar, and then further

reduced the fee award by an additional across-the-board reduction. On appeal, we

vacated and remanded because the district court had erred in calculating the

lodestar and in adjusting the lodestar downward by 50 percent. Bivins v. Wrap It

Up, Inc., 548 F.3d 1348 (11th Cir. 2008). On remand, Bivins filed a motion

seeking additional fees and costs for the work done on appeal.

       In reconsidering the size of the fee award, the district court expressed

concern over the requested amounts. Stating that the “legal significance of the

civil rights violated and vindicated in this case do not rise to a level that justifies

the attorney’s fees requested,” the district court calculated the fees and costs and

applied an 85-percent across-the-board reduction. The district court noted that

Bivins had already received some monies from the defendants for fees and reduced

the total amount due. Bivins’ counsel subsequently notified the court that they had

received additional payments, and they moved the court to amend the fees and

costs order. The court amended the order to show $5,605.02 due. Bivins now

appeals.



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       Bivins argues that the district court abused its discretion by applying an

85-percent reduction across the board because this reduction failed to take into

account all of the lodestar factors as enunciated in Johnson v. Georgia Highway

Express, 488 F.2d 714 (5th Cir. 1974),1 improperly emphasized the disparity

between the verdict award and amount of fees, and ignored the degree of success at

the trial stage of litigation. He contends that there are limited circumstances in

which the court is permitted to adjust the lodestar and argues that the court failed to

follow this court’s mandate when it engaged in the same calculation this court

previously rejected. Bivins advises this court that the extensive amount of time

necessary in this litigation was due to Raso’s own litigious behavior. Bivins also

urges this court to recalculate the lodestar rather than remand for a second time.

       “We review a district court’s order awarding attorney fees for an abuse of

discretion, which occurs if the court 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.” Gray ex rel. Alexander v. Bostic, 570

F.3d 1321, 1324 (11th Cir. 2009) (citations and quotation marks omitted). Under

the abuse of discretion standard, there is “usually a range of choices” available to


       1
         In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc), this
court held that all decisions handed down by the former Fifth Circuit before the close of business
on September 30, 1981, are binding precedent in the Eleventh Circuit. We note that Johnson has
been overruled on other grounds. Blanchard v. Bergeron, 489 U.S. 87 (1989).

                                                3
the district court, and “there is not only one right choice for the court to make.

This is true even though we would have gone the other way had it been our call.”

Id.

       As a prevailing party, Bivins is entitled to attorney’s fees. Gray, 570 F.3d at

1324. To determine the amount of fees due, courts use the lodestar approach and

multiply the number of hours reasonably expended by a reasonable hourly rate.

Hensley v. Eckerhart, 461 U.S. 424, 433-34 (1983). When considering what

constitutes a reasonable hourly rate, the court may consider the following factors:

       (1) the time and labor required; (2) the novelty and difficulty of the
       questions; (3) the skill requisite to perform the legal services properly;
       (4) the preclusion of other employment by the attorney due to
       acceptance of the case; (5) the customary fee in the community;
       (6) whether the fee is fixed or contingent; (7) time limitations imposed
       by the client or circumstances; (8) the amount involved and the results
       obtained; (9) the experience, reputation, and the ability of the
       attorney; (10) the “undesirability” of the case; (11) the nature and
       length of the professional relationship with the client; and (12) awards
       in similar cases.

Johnson, 488 F.2d at 717-19.2 That a plaintiff succeeds in only a limited way does

not strip him of prevailing-party status, but the degree of his success is “the most

critical factor in determining the reasonableness of a fee award.” Farrar v. Hobby,

506 U.S. 103, 114 (1992) (quotation marks omitted); see also Hensley, 461 U.S. at


       2
         “Although [this] balancing test has since been displaced by the lodestar formula, we
have expressed our approval of district courts considering the Johnson factors in establishing a
reasonable hourly rate.” Loranger, 10 F.3d at 781 n.6 (citation omitted).

                                                4
436. There is a “strong presumption” that the lodestar reflects a reasonable sum

the attorneys deserve. Pennsylvania v. Del. Valley Citizens’ Council for Clean Air,

478 U.S. 546, 565-66 (1986). If the district court finds that the number of hours

claimed is unreasonably high, the court may either conduct an hour-by-hour

analysis or it may reduce the hours using an across-the-board cut. Loranger v.

Stierheim, 10 F.3d 776, 783 (11th Cir. 1994). Any reductions to the requested

hours must be concisely and clearly explained to allow for our review; otherwise,

we must remand. Id.

               A. Fees for Work Before the District Court

       Our review establishes that the district court properly calculated the fees

using the lodestar. The district court considered the number of hours each attorney

claimed, and, instead of conducting an hour-by-hour review of the attorneys’ work,

the court applied an 85-percent reduction across the board.3 In making this

reduction, the court explained that the case was not novel or complex, it did not

involve a lengthy trial, and there was a de minimus public benefit at stake. The

court compared the case to other discrimination actions and concluded that



       3
           The district court determined that a reasonable hourly rate for the attorneys involved
was less than the amount the attorneys had requested. The attorneys have not challenged the
district court’s determination of the hourly rate for their work before the district court. They
have, however, challenged the district court’s reduction in their hourly rates for the work done
on the first appeal.

                                                 5
Bivins’s action was not of the same caliber as landmark civil-rights cases that had

served an enormous public good. The court expressed its concern for the number

of hours claimed for various aspects of the case, but instead of going through and

reducing hour by hour, it chose to apply the across-the-board reduction.

      The district court’s statements show that it correctly calculated the lodestar,

properly considered the Johnson factors, and provided sufficient explanation to

enable appellate review.

      Essentially, Bivins’s attorneys disagree with the district court’s conclusion

that a case resulting in a $10,000 damage award was not worth $245,000 in fees

and costs. A small award does not “automatically indicate that a particular case is

of little importance.” Gray, 570 F.3d at 1324. The court’s decision to apply an 85-

percent across-the-board reduction is troublesome given the purpose behind

§ 1988. But whether we agree with the district court’s calculations is not relevant,

and the fact that we may disagree does not mean the court abused its discretion.

             B. Fees for Work on Appeal

      The court determined that the length of time the attorneys claimed was

excessive for a simple appeal that had been decided without oral argument. After

determining a reasonable hourly rate for the attorneys, which was less than the

amount requested by the attorneys, the court applied a 40-percent across-the-board



                                          6
reduction. In doing so, the court explained that there were no novel legal issues

involved, the case was not an “undesirable appeal,” and it did not require a higher

level of skill.

       On review, we cannot say the district court abused its discretion. The

attorneys requested more than $25,000 in fees to litigate their first appeal. The

issue on appeal concerned only the fee award and did not involve the merits of the

discrimination claim. Given the limited nature of the appeal, the district court did

not abuse its discretion in finding that the time spent and the amount requested

were excessive.

       Because the district court correctly determined the lodestar amount and did

not abuse its discretion in calculating the amount of fees due on appeal, we have no

reason to overturn its determination of fees and costs. Accordingly, the district

court’s award of fees and costs is

       AFFIRMED.




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