UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GRIFFIN ROGERS,
Plaintiff-Appellant,

v.                                                               No. 98-2253

CITY OF VIRGINIA BEACH, VIRGINIA,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Henry C. Morgan, Jr., District Judge.
(CA-97-1073-2)

Argued: May 18, 1999

Decided: July 15, 1999

Before MICHAEL, MOTZ, and KING, Circuit Judges.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

ARGUED: Thomas Aquinas Woodley, MULHOLLAND &
HICKEY, Washington, D.C., for Appellant. Richard Jay Beaver,
Senior Attorney, CITY ATTORNEY'S OFFICE, Virginia Beach,
Virginia, for Appellee. ON BRIEF: Gregory K. McGillivary, MUL-
HOLLAND & HICKEY, Washington, D.C., for Appellant. Leslie L.
Lilley, City Attorney, L. Steven Emmert, Senior Attorney, CITY
ATTORNEY'S OFFICE, Virginia Beach, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Griffin Rogers sued his employer, the City of Virginia Beach, chal-
lenging its overtime pay policies. The City attempted to settle the
case, making an offer of judgment that Rogers declined. The district
court subsequently granted summary judgment to Rogers. He then
sought attorneys' fees and costs against the City. The court made a
partial award of fees and costs, but denied Rogers's request for
amounts relating to litigation after the City's offer of judgment. Rog-
ers appeals, and we vacate the fee order and remand for further con-
sideration.

I.

Rogers is employed by the City of Virginia Beach as a firefighter.
In 1986 the City adopted a policy of granting compensatory time
("comp time") to employees in lieu of paying cash for overtime hours
worked. Employees could then use the comp time at a later date to
take paid leave.

Two aspects of the overtime policy are relevant to Rogers's law-
suit. First, the City imposed a cap on the maximum number of hours
of comp time that workers could accrue. It also gave department
heads the discretion to require employees to use their comp time so
as to avoid exceeding the specified limits. Department heads could
compel workers to use their comp time leave on days unilaterally cho-
sen by the department. Second, the City also barred employees from
using their comp time when a day (or "leave slot") designated by the
department was already taken or when the City would have to pay
another worker overtime pay to fill in for the employee on leave.

Rogers sought to use some of his accrued comp time in the first
part of 1997, but only one day was available under the City's policy,

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a day that apparently was not suitable to Rogers. In June 1997 he was
forced to take 15 hours of leave to reduce his accrued comp time total
below the cap imposed by the City. Rogers filed an internal griev-
ance, claiming that the City's comp time policies violated the Fair
Labor Standards Act (FLSA). After the fire department rejected his
grievance, Rogers sued the City in district court in November 1997.
He alleged that the City violated Section 207(o) of the FLSA, 29
U.S.C. § 207(o), in two ways: (1) by forcing employees to take
accrued comp time on dates unilaterally chosen by the City; and (2)
by denying requests to use comp time when leave slots were unavail-
able or when the City would have to pay overtime to a replacement
worker. Rogers sought back pay, liquidated damages, and a declara-
tion that the City's policies violated federal law.

The City took steps to settle Rogers's lawsuit. It restored the 15
hours of comp time that Rogers had been forced to take in June 1997.
It also revised its overtime policy so that department heads could no
longer force employees to use their accrued comp time. However, it
did not change the policy of denying leave requests when a leave slot
was unavailable or when it would have to pay overtime to another
worker. In February 1998 the City made an offer of judgment pursu-
ant to Rule 68 of the Federal Rules of Civil Procedure. The offer of
judgment listed the steps taken by the City to address Rogers's griev-
ances. However, Rogers rejected the offer of judgment and continued
to prosecute his lawsuit against the City.

In April 1998 Rogers moved for summary judgment against the
City. The district court granted this motion, ruling for Rogers on both
of the FLSA violations he alleged. The court awarded him back pay,
liquidated damages, and reasonable attorneys' fees and costs. Rogers
submitted a petition seeking full recovery of $25,210 in attorneys'
fees and $2,311 in costs. However, the district court awarded only
$7,355 in attorneys' fees and $640 in costs. The court refused to
award any fees and costs incurred after the City made its offer of
judgment. It explained that the relief granted Rogers by the court "vir-
tually mirrors the City's proposed settlement," so that "plaintiff's
counsel unreasonably expended time and labor" by continuing the liti-
gation after receiving the City's offer. Rogers appeals the district
court's order limiting fees and costs, contending that he obtained

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additional benefits beyond the City's offer by continuing to prosecute
his lawsuit.

II.

The FLSA provides that the district court "shall, in addition to any
judgment awarded to the plaintiff or plaintiffs, allow a reasonable
attorney's fee to be paid by the defendant, and costs of the action."
29 U.S.C. § 216(b). As the express language of this provision sug-
gests, the award of fees and costs to a prevailing plaintiff is manda-
tory under the FLSA. Burnley v. Short, 730 F.2d 136, 141 (4th Cir.
1984). A court, as a starting point, should calculate attorneys' fees by
multiplying a reasonable hourly rate by the number of hours reason-
ably expended on the case. Hensley v. Eckerhart , 461 U.S. 424, 433
(1983). It may then adjust the fee award up or down to take other con-
siderations into account. Id. at 434. We have adopted the factors set
forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714,
717-19 (5th Cir. 1974), to determine whether the fee award should be
adjusted.* See Barber v. Kimbrell's, Inc., 577 F.2d 216, 226 n.28
(4th Cir. 1978). We review the reasonableness of the fee award for
abuse of discretion. Brodziak v. Runyon, 145 F.3d 194, 196 (4th Cir.
1998).

The district court reduced its award of attorneys' fees and costs to
Rogers based on two of the Johnson factors: (1) the time and labor
required and (2) the amount involved and the results obtained. The
court reasoned that its judgment order gave Rogers essentially what
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*These factors, sometimes called "the Johnson factors," were listed by
the Supreme Court in Hensley, 461 U.S. at 430 n.3:

          (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
          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.

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the City had previously offered him in its Rule 68 offer of judgment.
Therefore, it found that Rogers's attorneys unreasonably continued to
prosecute the case.

We conclude that the district court went beyond its discretion by
using a faulty reason to limit its award of attorneys' fees and costs to
Rogers. Rogers's complaint alleged two distinct violations of the
FLSA by the City: (1) forcing employees to use accrued comp time
on dates unilaterally chosen by the City and (2) denying employee
leave requests to use accrued comp time when leave slots were not
available and when the City would have to pay overtime to a replace-
ment worker. The City changed its overtime policy to address Rog-
ers's first claim; its offer of judgment noted that the policy had been
revised. However, the City did nothing with regard to Rogers's sec-
ond claim and its offer of judgment made no mention of that claim.
Despite the City's intransigence on the second claim, the district court
ultimately ruled in Rogers's favor on that claim, specifically conclud-
ing that the City's policy of denying comp time leave violated the
FLSA. The district court was therefore incorrect when it said in its fee
order that its ruling on the merits "virtually mirrored" the City's set-
tlement offer. Rather, it held that both of the City's policies chal-
lenged by Rogers violated the FLSA, whereas the City's earlier offer
related only to Rogers's first claim. In order for Rogers to challenge
the City's policy with respect to the denial of comp time leave, it was
necessary for him to continue prosecuting his lawsuit after the City
made its offer of judgment. Furthermore, Rogers's victory in court on
his second claim benefited not only him, but all other city employees
subject to the policy. This result would not have been achieved if
Rogers had accepted the offer of judgment.

Under these circumstances, the denial of attorneys' fees and costs
on the second claim is inconsistent with the mandatory fee language
of § 216(b) (the court "shall" award attorneys' fees and costs). We
therefore vacate the district court's order setting fees and costs and
remand for reconsideration of the fees and costs to be awarded to
Rogers.

VACATED AND REMANDED

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