              Case: 16-11548    Date Filed: 08/30/2017   Page: 1 of 12


                                                                  [PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 16-11548
                           ________________________

                      D.C. Docket No. 6:13-cv-491-JA-KRS



THERESA ANN ELA,

                                                   Plaintiff-Appellant,

versus

KATHLEEN DESTEFANO,
individually a.k.a. Kathleen Ela,
JERRY L. DEMINGS,
in his official capacity as Sheriff of Orange County,
JOHN DOES 1-30,
acting in their individual capacity,
JANE DOES 1-30,
acting in their individual capacity,
ORANGE COUNTY, SHERIFF DEPARTMENT,

                                                   Defendants-Appellees.

                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________

                                 (August 30, 2017)
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Before TJOFLAT and WILSON, Circuit Judges, and ROBRENO,∗ District Judge.

WILSON, Circuit Judge:

       Theresa Ela sued Kathleen Destefano, an Orange County Sheriff’s Deputy,

for improperly accessing and viewing her private information on Florida driver’s

license databases. Following a jury trial, the district court granted Ela’s motion for

judgment as a matter of law and held Destefano liable under the Driver’s Privacy

Protection Act (DPPA) and 42 U.S.C. § 1983. Based on special interrogatories

answered by the jury, the Court awarded Ela liquidated damages and attorneys’

fees. On appeal, Ela challenges the amount of liquidated damages awarded, which

requires us to interpret the remedies provision in the DPPA. Ela also argues that

the district court abused its discretion in reducing the requested attorneys’ fees.

                                              I.

       Theresa Ela was married to Dennis Ela until 2010. In 2011, Dennis Ela

married Kathleen Destefano, who had a romantic relationship with Dennis Ela

while he was still married to Theresa Ela. From January 2010 through November

2011, while sitting alone in her patrol car, Destefano used her access to law

enforcement databases (which store photographs, addresses, vehicle information,

etc.) to search Ela’s name. In 2010, shortly after her divorce, Ela requested access

to public records and learned that Destefano had been searching her name on

       ∗
        Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of
Pennsylvania, sitting by designation.
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driver’s license databases. Ela complained to the Professional Standards Division

of the Orange County Sheriff’s Office. During the ensuing internal investigation,

Destefano stated that she did not have a legitimate business or law enforcement

reason for accessing Ela’s information.1 Destefano was suspended for 60 hours

without pay and placed on disciplinary probation for six months. The internal

investigation revealed no evidence that Destefano used or disclosed Ela’s personal

information. Despite this, Ela asserted emotional distress 2 and proceeded to trial

against Destefano, her ex-husband’s new wife, seeking over $1,000,000 in

compensatory damages.

       After the jury trial, the district court granted Ela’s motion for judgment as a

matter of law as to Destefano’s liability, and Ela agreed to seek damages only

under the DPPA and not § 1983. The district court then provided the jury with a

verdict form containing three interrogatories to determine damages. In response to

the first interrogatory, the jury found that Destefano violated the DPPA 101 times.

In response to the second interrogatory, the jury found that Destefano’s actions did

not cause Ela to suffer any actual damages. The jury did not reach the third

interrogatory, which asked what amount of compensable damages were

attributable to Destefano’s conduct.

1
  Destefano also admitted that she did not have a legitimate law enforcement purpose when she
testified at trial. During her testimony, Destefano admitted that it was a “very big mistake.”
2
  Ela testified that she was “sickened” by Destefano’s actions, which made her feel “anxious,
nervous, sick, angry [and] violated.”
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      After the trial, Ela, by motion, requested $252,500 in liquidated damages:

$2,500 for each of Destefano’s 101 violations of the DPPA. Ela also sought

attorneys’ fees of $153,787 and costs of $4,227.44. The district court awarded Ela

$2,500 in liquidated damages, $15,379 in attorneys’ fees, and $4,227.44 in costs.

The court explained that it awarded only $2,500 for the DPPA violations because

this case does not implicate the purposes of the DPPA, Destefano did not use or

disclose Ela’s private information, and Ela did not suffer any actual damages. The

court then explained its decision on attorneys’ fees by noting that this “lawsuit

resulted in an award of 0% of [Ela’s] request[ed] $1 million in compensatory

damages, 1% of her request[ed] $252,000, and at most a minimal spill-over benefit

for the public, [so] a reasonable attorney[s’] fee incurred by [Ela] in litigating this

case is 10% of $153,787, or $15,379.”

                                                 II.

      We review a district court’s interpretation of a statute de novo. See Kehoe v.

Fidelity Fed. Bank & Trust, 421 F.3d 1209, 1211 (11th Cir. 2005). The parties

agree that if we conclude that the district court has discretion to award the statute’s

enumerated amount and not multiply it per violation, we review the court’s

damages award for abuse of discretion. See DIRECTV, Inc. v. Brown, 371 F.3d

814, 816 (11th Cir. 2004) (per curiam).

                                          III.


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      The analysis of this case involves a simple matter of statutory interpretation.

We hold that the text of the DPPA, our prior precedent, and the statutory context

set a floor of $2,500 in liquidated damages, and any award the district court grants

above that amount is reviewed for abuse of discretion.

      We begin by analyzing the language of the statute. See Merritt v. Dillard

Paper Co., 120 F.3d 1181, 1185 (11th Cir. 1997). This case stems from violations

of the DPPA, specifically 18 U.S.C. § 2724:

             (a) Cause of action.––A person who knowingly obtains,
             discloses or uses personal information, from a motor
             vehicle record, for a purpose not permitted under this
             chapter shall be liable to the individual to whom the
             information pertains, who may bring a civil action in a
             United States district court.
             (b) Remedies.––The court may award—
                   (1) actual damages, but not less than liquidated
                   damages in the amount of $2,500;
                   (2) punitive damages upon proof of willful or
                   reckless disregard of the law;
                   (3) reasonable attorneys’ fees and other litigation
                   costs reasonably incurred; and
                   (4) such other preliminary and equitable relief as
                   the court determines to be appropriate.
      Raising an issue of first impression in this Circuit, Ela urges us to find that

the damages list in § 2724(b) applies to each instance that a person “knowingly

obtains, discloses or uses personal information” from a motor vehicle record with

an improper purpose in violation of § 2724(a). In other words, she argues that the

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plain text of the statute sets a floor of $2,500 per violation.3 Despite Ela’s

assertions that the DPPA’s language is clear, we find it far from clear. The text of

the DPPA does not explicitly require per violation awards, but it does not seem to

foreclose them either.

       While the statute’s plain language neither requires nor prohibits an award of

liquidated damages per violation, the remedy provision does use plainly permissive

language. The use of the word “may” implies that what follows is a permissive

rule. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of

Legal Texts 112 (2012). Not only does the use of the word “may” imply

permissiveness, but we have expressly held so when interpreting this exact

provision of the DPPA. In Kehoe, we held that “[t]he use of the word ‘may’ [in

§ 2724(b)] suggests that the award of any damages is permissive and

discretionary.” 421 F.3d at 1216 (emphasis added). Therefore, “the district court,

in its discretion, may fashion what it deems to be an appropriate award.”

Id. at 1217. While Destefano undoubtedly violated the DPPA, the jury found that

Ela did not suffer any actual damages. The district court properly used its

discretion to fashion a damages award appropriate for this situation. A textual

reading of § 2724 leads us to the conclusion that the district court’s discretion is



3
 Ela thus requests $2,500 for each of Destefano’s 101 violations of the DPPA, for a total of
$252,500 in liquidated damages.
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only limited in the sense that it must award at least $2,500 if any violation has been

shown. For awards above that amount, we review for abuse of discretion.

      Statutory context also supports our reading of § 2724. We find it relevant

that Congress chose to require cumulative damages in the criminal section of the

DPPA, § 2723, which it passed on the same day as § 2724. Section 2723(b) states

that when a DMV has “a policy or practice of substantial noncompliance with this

chapter,” it shall be subject “to a civil penalty imposed by the Attorney General of

not more than $5,000 a day for each day of substantial noncompliance.” 18 U.S.C.

§ 2723(b). “It is well settled that where Congress includes particular language in

one section of a statute but omits it in another section of the same Act, it is

generally presumed that Congress acts intentionally and purposely in the disparate

inclusion or exclusion.” Duncan v. Walker, 533 U.S. 167, 173, 121 S. Ct. 2120,

2125 (2001) (internal quotation marks omitted); see also Pugliese v. Pukka Dev.,

Inc., 550 F.3d 1299, 1303 (11th Cir. 2008). We thus presume that Congress knew

how to include language that permits cumulative damages in the civil section, but

chose not to.

      Disputing this presumption, Ela argues that because § 2725 defines “person”

to exclude states and state agencies, the use of the word “person” in § 2724(a)

means that § 2723(b) is sufficiently dissimilar. However, Ela’s argument misses

the point. Although § 2723(b) and § 2724(a) apply to different entities, our


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comparison of the two is only meant to show that Congress was aware how to

include language authorizing cumulative damages, making its omission of such

language in § 2724 deliberate and meaningful. In addition, there is good reason for

Congress to allow cumulative damages in a section about state DMVs, which

theoretically would be able to better handle larger cumulative damages, as

compared to the single police officer in this case.

       Additionally, we find persuasive the argument that “[w]here Congress

knows how to say something but chooses not to, its silence is controlling.” See,

e.g., Animal Legal Def. Fund v. U.S. Dep’t of Agric., 789 F.3d 1206, 1217 (11th

Cir. 2015) (internal quotation marks omitted). Congress deliberately included

language authorizing cumulative damages awards in many other statutes. A survey

of the United States Code reveals at least thirteen provisions in other federal

statutes that include language (such as “per violation” or “for each violation”)

permitting cumulative damages. 4 See Green v. Bock Laundry Mach. Co., 490 U.S.

504, 528, 109 S. Ct. 1981, 1994 (1989) (Scalia, J., concurring) (writing that a

statute should be understood in a manner “most compatible with the surrounding

body of law into which the provision must be integrated—a compatibility which,

by a benign fiction, we assume Congress always has in mind”). The absence of


4
  See, e.g., 18 U.S.C. § 248(c)(1)(B) (“statutory damages . . . per violation”); 39 U.S.C.
§ 3017(e)(1)(B) (“for each such violation”); 47 U.S.C. § 605(e)(3)(C)(i)(II) (“statutory damages
for each violation”).
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any similar language in § 2724 is conspicuous, and in this case, we find Congress’s

silence persuasive.

       By no means should our decision today be read to discourage or undermine

the importance of private litigation to vindicate a public benefit. While

Destefano’s conduct here was unmistakably wrong and police officers should not

be allowed to take advantage of their position of power to access private

information, the statute specifically provides for punitive damages to deter this

conduct. 18 U.S.C. § 2724(b)(2). Reading “per violation” into the statute’s

liquidated damages clause to mandate cumulative damages would enable

unharmed plaintiffs to abuse this provision.

       We conclude that the district court did not abuse its discretion in shaping a

damages award appropriate for the facts of this case. We affirm the award of

$2,500 in liquidated damages.

                                             IV.

       We review an award of attorneys’ fees for abuse of discretion. See ACLU of

Ga. v. Barnes, 168 F.3d 423, 436 (11th Cir. 1999). Reasonable attorneys’ fees are

available for prevailing parties under the DPPA and § 1983.5 18 U.S.C.

§ 2724(b)(3); 42 U.S.C. § 1988. In this case, Ela requested $153,787 in attorneys’



5
 “[W]e find the relief offered by the DPPA and Section 1983 to be complementary.” Collier v.
Dickinson, 477 F.3d 1306, 1311 (11th Cir. 2007).
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fees for 481 hours of attorney time. The district court awarded $15,379,

compensating Ela’s attorneys for 48 hours of work.

       “The 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.” Bivins v. Wrap It Up, Inc., 548 F.3d 1348, 1350 (11th Cir. 2008)

(per curiam) (internal quotation marks omitted). This number is called the lodestar

and “there is a ‘strong presumption’ that the lodestar is the reasonable sum the

attorneys deserve.” Id. In determining whether the lodestar is reasonable, “the

[district] court is to consider the 12 factors enumerated in Johnson v. Georgia

Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974).”6 Id. If the lodestar is

reasonable, a downward adjustment “is merited only if the prevailing party was

partially successful in its efforts.” Resolution Trust Corp. v. Hallmark Builders,

Inc., 996 F.2d 1144, 1150 (11th Cir. 1993) (per curiam). A district court must

determine what counts as partial success on a case-by-case basis. See Bivins,

548 F.3d at 1351 n.3.

6
  The Johnson factors are “(1) the time and labor required; (2) the novelty and difficulty of the
questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of
employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the
fee is fixed or contingent; (7) time limitations imposed by the client or the 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.” Bivens, 548 F.3d at 1350 n.2
(citing Johnson, 488 F.2d at 717–19); see also Bonner v. City of Prichard, 661 F.2d 1206, 1207
(11th Cir. 1981) (en banc) (holding that all decisions of the “old Fifth” Circuit handed down
prior to the close of business on September 30, 1981, are binding precedent in the Eleventh
Circuit).
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       Here, the district court did not start its analysis with the lodestar and erred in

its approach to the Johnson factors. The court mainly discussed the eighth

Johnson factor, the amount involved and the results obtained.7 While those are

certainly relevant considerations, especially for determining an appropriate

downward adjustment, under the circumstances of this case we find that the district

court went too far by reducing the requested fees by 90%.

       We also find problematic the district court’s court analogy to nominal

damages. The district court likened this case to one in which a party “recovers

only nominal damages because of his failure to prove an essential element of his

claim for monetary relief,” where “the only reasonable fee is usually no fee at all.”

See Farrar v. Hobby, 506 U.S. 103, 115, 113 S. Ct. 566, 575 (1992). However, we

held in Kehoe that a plaintiff “need not prove actual damages to recover the other

types of remedies listed in § 2724(b),” which includes attorneys’ fees. See Kehoe,

421 F.3d at 1212.

       Additionally, liquidated damages are different from nominal damages.

Liquidated damages are “[a]n amount . . . stipulated as a reasonable estimation of

actual damages.” Liquidated Damages, Black’s Law Dictionary (10th ed. 2014).

Liquidated damages are a pre-fixed amount, set here by Congress. Nominal


7
  The district court did not specifically cite Johnson, but almost the entire analysis of the
attorneys’ fees issue was devoted to discussing the amount of actual damages (or lack thereof)
that Ela received.
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damages are “a judicial declaration that the plaintiff’s right has been violated.”

Nominal Damages, Black’s Law Dictionary (10th ed. 2014) (quoting Charles T.

McCormick, Handbook on the Law of Damages § 20, at 85 (1935)). Congress

stipulated a pre-fixed amount of liquidated damages; we should defer to

Congress’s judgment.

      Because we hold that the district court erred in calculating Ela’s attorneys’

fees award, we reverse and remand for reconsideration.

                                          V.

      After a three-day trial, a jury concluded that no compensatory damages were

appropriate. The district court then worked within the bounds of a broad statutory

grant to award liquidated damages. We see no problem with this decision, and we

affirm the award of $2,500.

      As for attorneys’ fees, we find that the district court failed to start with the

lodestar and gave too much weight to the eighth Johnson factor. We reverse and

remand for the court to recalculate an appropriate amount of attorneys’ fees.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




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