                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-1700


TANYA JACKSON; MICHAEL AGYEMAN; THOMAS GEORGE; ISAAC ASAVE,
on behalf of themselves and on behalf of all others
similarly situated,

                Plaintiffs - Appellants,

           v.

ESTELLE’S PLACE, LLC; JIREH PLACE, LLC; OUR           PLACE,   LLC;
DESTINY PLACE, LLC; DEBRA ROUNDTREE; MARY BELL,

                Defendants – Appellees.

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

METROPOLITAN WASHINGTON EMPLOYMENT LAWYERS ASSOCIATION;
WASHINGTON LAWYERS’ COMMITTEE FOR CIVIL RIGHTS AND URBAN
AFFAIRS,

                Amici Supporting Appellants.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.     Leonie M. Brinkema,
District Judge. (1:08-cv-00984-LMB-TRJ)


Argued:   May 14, 2010                     Decided:    August 12, 2010


Before GREGORY, AGEE, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion. Judge Gregory wrote
a dissenting opinion.
ARGUED:   Nicholas   Woodfield,   EMPLOYMENT  LAW   GROUP,   PC,
Washington, D.C., for Appellants.     Edward S. Rosenthal, RICH
ROSENTHAL BRINCEFIELD MANITTA DZUBIN & KROEGER, LLP, Alexandria,
Virginia, for Appellees. ON BRIEF: R. Scott Oswald, EMPLOYMENT
LAW GROUP, PC, Washington, D.C., for Appellants.     Katelin T.
Moomau, Jonathan A. Simms, RICH ROSENTHAL BRINCEFIELD MANITTA
DZUBIN & KROEGER, LLP, Alexandria, Virginia, for Appellees.
Susan E. Huhta, Laura E. Varela, WASHINGTON LAWYERS’ COMMITTEE
FOR CIVIL RIGHTS & URBAN AFFAIRS, Washington, D.C., for Amici
Supporting Appellants.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

     Appellants Tanya Jackson, Michael Agyeman, Thomas George,

Isaac Asare, Sharon Doss, and Courtney Collins are present and

former employees of several related entities that operate group

homes for        the   developmentally    disabled.       Appellees,       defendants

below, are those entities and their principals (Estelle’s Place,

LLC; Jireh’s Place, LLC; Our Place, LLC; Destiny’s Place, LLC;

Debra Roundtree, and Mary Bell). Appellants’ claims arose under

the overtime pay provision of the Fair Labor Standards Act, 29

U.S.C. § 201, et seq. (“FLSA”), and state law. Early on, the

parties   settled       the   action,    leaving     to   the    district      court,

however, determination of the amount of attorney’s fees to be

awarded     to     Appellants    as     prevailing    parties.       See     id.   at

§ 216(b).     Feeling      aggrieved     by   the   amount      of   the    district

court’s award of attorney’s fees ($36,000), Appellants filed the

instant appeal. 1 For the reasons set forth below, we affirm.



                                         I.

     Appellants Jackson, George, Asare, Doss, and Collins were

compensated on an hourly basis; Appellant Agyeman, on the other

     1
       Although Appellants noted their appeal only from the
denial of their motion to alter or amend the district court’s
order awarding attorney’s fees, we have jurisdiction to consider
the merits of the underlying order. See, e.g., Brown v. French,
147 F.3d 307, 311 (4th Cir. 1998).



                                          3
hand, though not paid hourly, was nonetheless misclassified as

an exempt employee for overtime purposes. Appellees effected the

underpayments of wages by assigning Appellants to work a total

of more than 40 hours per week, but at different group homes,

while treating work at each group home (owned by a separate but

related    corporate         entity)   as     work    for     a    separate      employer.

Consequently,      Appellees        paid    Appellants       at    the    straight      time

rate rather than at the overtime rate of time-and-a-half for

hours worked beyond 40 per week.

      On September 22, 2008, Appellants Jackson, Agyeman, George,

and Asare filed suit in the United States District Court for the

Eastern District of Virginia against Appellees, seeking unpaid

overtime     compensation        under      the      FLSA.    Appellants        Doss     and

Collins    opted      into    the    litigation       as     plaintiffs.        Meanwhile,

Appellants filed a Motion to Allow Notice to Similarly Situated

Employees and to Approve Interrogatory to Defendants Seeking the

Identity of Similarly Situated Employees. On December 19, 2008,

the district court granted Appellants’ motion. Shortly after the

district court ordered publication of notice of the pendency of

the   lawsuit    to    other     employees,        but     before       such   notice   was

published,      the    parties       negotiated       a    Confidential        Settlement

Agreement    and      General       Release       resolving       all    of    Appellants’

claims.



                                              4
       The Settlement Agreement stipulated that Appellants would

be paid additional wages equal to unpaid overtime compensation

(i.e., half-time) for all hours or fractions thereof worked in

excess of 40 hours during any one work week (from September 22,

2005, through the date of the settlement), plus an equal amount

in    liquidated        damages.   The   parties        then    stipulated   to   the

following        settlement        amounts:       Asare        ($430.00),    Collins

($567.50),        Doss      ($490.00),         George     ($4,032.00),       Jackson

($1,963.50), and Agyeman ($12,471.34). Notably, of the 13 forms

of relief sought in the complaint, nine were not addressed in

the        Settlement     Agreement      and     were     wholly     abandoned     by

Appellants. 2 In particular, no injunctive relief was awarded, no

relief was awarded on any state law claim, and Appellees were

not required to alter their method of operation. In any event,

pursuant to the Settlement Agreement, the district court entered


       2
       These nine prayers for relief were for (1) an order
appointing plaintiffs and their counsel to represent similarly
situated employees as to the FLSA claims, (2) certification of
the  breach    of   contract    and    quantum  meruit  classes   and
designation of plaintiffs as class representatives and their
counsel as class counsel, (3) a preliminary and permanent
injunction prohibiting the defendants from engaging in the
allegedly unlawful practices, (4) an order awarding declaratory
relief, (5) an order awarding restitution and disgorgement of
profits,   (6)    a    judgment     awarding   plaintiffs   economic,
compensatory damages, liquidated damages, and punitive damages,
(7) pre-judgment interest, (8) equitable relief such as
employment, reinstatement, promotion, or frontpay, and (9)
interest due on unpaid wages.



                                          5
an Agreed Order of Dismissal in Part, dated February 23, 2009,

dismissing all of Appellants’ claims with prejudice, reserving

for   itself   the     issue   of    attorney’s         fees    and   costs,      as     the

parties had agreed.

      Appellants       promptly     filed       their   motion      for    an    award    of

attorney’s     fees.    Following     full       briefing      and    a    hearing,      the

district court issued a Memorandum Opinion and Order granting

attorney’s fees and costs. The district court noted that under

this court’s precedents, a reasonable fee would be calculated by

determining     a      lodestar     fee,        followed       by    any    appropriate

reductions. See Grissom v. The Mills Corp., 549 F.3d 313 (4th

Cir. 2008), where we stated:

           The parties also agree that after calculating the
      lodestar figure, the “court then should subtract fees
      for hours spent on unsuccessful claims unrelated to
      successful ones.” Johnson v. City of Aiken, 278 F.3d
      333, 337 (4th Cir. 2002). “Once the court has
      subtracted   the   fees  incurred   for  unsuccessful,
      unrelated claims, it then awards some percentage of
      the remaining amount, depending on the degree of
      success enjoyed by the plaintiff.” Id.

Id.   321    (emphasis      added);        see     also     Robinson        v.    Equifax

Information Services, LLC, 560 F.3d 235, 243 (4th Cir. 2009).

      The district court determined the appropriate hourly rates

for counsel for Appellants, ranging from $350.00 per hour for

the most experienced lawyer to $60.00 per hour for the legal

assistant. The district court then determined the total hours

reasonably expended by the four people who worked on the case.

                                            6
Thus,    the     district    court    arrived    at    what    it     described     as   a

“lodestar fee” of $47,800. Then, in determining the ultimate

issue of a reasonable fee, the district court noted that only

six   plaintiffs       joined   the    lawsuit,       and    their    total    recovery

amounted to less than $10,000.00 before it was doubled under

FLSA’s    liquidated        damage    provision.      The     court    further      noted

that,    of     the   six   awards,   four     were    for    less    than    $1,000.00

before doubling and that Agyeman received the largest recovery,

based only on his misclassification. Thus, the court reasoned

that the $47,800.00 “lodestar fee” should be reduced because

“[a]n attorneys’ fee should bear some reasonable relationship to

the recovery of plaintiffs.” Given the “modest value” of the

successful claims, the court determined that a reasonable fee,

which it also described as a “lodestar,” amounted to $36,000.00.

      On May 18, 2009, Appellants filed a Motion to Alter or

Amend     the    district     court’s    order        granting       fees    and   costs

pursuant to Fed. R. Civ. P. 59(e). On June 9, 2009, the district

court     denied       Appellants’      motion.        Appellants       have       timely

appealed.



                                         II.

                                         A.

        We review a district court’s award of attorney’s fees for

abuse of discretion. Johnson v. City of Aiken, 278 F.3d 333, 336

                                          7
(4th Cir. 2002) (citing McDonnell v. Miller Oil Co., 134 F.3d

638, 640 (4th Cir. 1998); Freeman v. Case Corp., 118 F.3d 1011,

1014 (4th Cir. 1997)). “Our review of the district court’s award

is   sharply   circumscribed;       we   have    recognized      that   because    a

district court has close and intimate knowledge of the efforts

expended and the value of the services rendered, the fee award

must not be overturned unless it is clearly wrong.” Plyler v.

Evatt, 902 F.2d 273, 277-78 (4th Cir. 1990) (internal quotation

marks, citations, and alteration marks omitted).

                                         B.

       A prevailing party is entitled to an award of reasonable

attorney’s fees and costs pursuant to the FLSA. See 29 U.S.C. §

216(b). Here, because the parties have agreed that Appellants

are prevailing parties, Appellants are entitled to an award of

attorney’s fees and costs that they establish as reasonable. See

Plyler, 902 F.2d at 277.

       Appellants’ challenge to the award in this case is a narrow

one.   Although    Appellants      sought     fees   and   costs   in   excess    of

$87,000,    they    do   not   assign    error       to   the   district    court’s

initial determination that the traditional lodestar amount in

this case (hours worked x appropriate hourly rate) was $47,800.

Rather,    they    limit   their    challenge        to   the   district    court’s

ultimate determination that a reasonable fee was the traditional

lodestar   amount    less      approximately     25%.      Appellants      make   two

                                         8
arguments in support of their contention that the district court

abused its discretion in reducing the traditional lodestar by

approximately 25% in this case. First, they contend that our

opinion in Grissom does not allow such a reduction. Second, they

contend that even if Grissom could be interpreted to allow such

a reduction, such a reduction is prohibited by City of Riverside

v.   Rivera,    477     U.S.   561    (1986),     and   by    the    Supreme    court’s

recent opinion in Perdue v. Kenny A., 130 S. Ct. 1662 (2010). We

disagree.

                                           1.

      We have set forth the Grissom methodology, 549 F.3d at 320,

above, which the district court cited in its order and which

provides in part that a court should “award[] some percentage of

the remaining amount [after reductions for unsuccessful claims],

depending on the degree of success enjoyed by the plaintiff.”

(Emphasis      added)    Appellants        contend      that,      inasmuch    as    they

enjoyed “complete success on all claims,” Appellant’s Br. 11,

there should not have been any reduction for their pursuit of

unsuccessful      claims       and    that,      therefore,        their   “degree     of

success”    under     Grissom        was   effectively       one    hundred    percent.

Thus,   according         to    Appellants,        under      Grissom,        the    only

appropriate “percentage” of the traditional lodestar amount that

constituted a “reasonable fee” is one hundred percent.



                                             9
      In   support   of     this    contention,         Appellants      seize     on    the

district court’s statement that “[i]t is unnecessary to subtract

fees incurred for unsuccessful, unrelated claims or award only a

percentage    of    this    amount       because   plaintiffs          settled    all    of

their   claims     for   full     value.”       Having   carefully       reviewed       the

district court’s orders, it is clear to us that, in context, the

district     court       indeed     followed       Grissom,       albeit         somewhat

awkwardly.    In    other       words,    we    agree    with    Appellants       to    the

extent that they contend that the methodology followed by the

district court is somewhat less precise than one would hope, but

we reject the contention that the district court deviated from

the core mandate of Grissom in calculating a “reasonable fee.”

      Like most (if not all) of the courts of appeals, we have

directed that in deciding what constitutes a reasonable number

of hours and the appropriate hourly rates (i.e., in calculating

the   lodestar     fee),    a    district       court    looks    to    the   following

twelve factors:

      (1) the time and labor expended; (2) the novelty and
      difficulty of the questions raised; (3) the skill required
      to properly perform the legal services rendered; (4) the
      attorney’s opportunity costs in pressing the instant
      litigation; (5) the customary fee for like work; (6) the
      attorney’s expectations at the outset of the litigation;
      (7) the time limitations imposed by the client or
      circumstances; (8) the amount in controversy and the
      results     obtained; (9) the experience, reputation and
      ability of the attorney; (10) the undesirability of the
      case within the legal community in which the suit arose;
      (11)    the    nature  and  length  of   the  professional


                                           10
        relationship   between  attorney   and   client;                     and   (12)
        attorneys’ fees awards in similar cases.

Barber v. Kimbrell’s Inc., 577 F.2d 216, 226 n.28 (4th Cir.

1978)       (adopting     factors   set   forth    in    Johnson      v.   Ga.   Highway

Express, Inc., 488 F.2d 714 (5th Cir. 1974), abrogated on other

grounds by Blanchard v. Bergeron, 489 U.S. 87 (1989). In this

case, the district court properly assessed the 12 factors and

focused, most heavily, on factor number eight - “the amount in

controversy and the results obtained.” In doing so, the district

court       purported      to    arrive   at      an    “initial”       lodestar       fee

($47,800), and then, after consideration of factor number eight,

it   arrived         at   its   “final”   lodestar       fee     of   $36,000.     Thus,

although       the    district    court   arrived       at   a   reasonable      fee    as

mandated by Grissom, it took the somewhat circuitous route of

calculating a “final” lodestar by relying on factor eight in the

Kimbrell’s analysis, rather than by expressly taking account of

Appellants’ unsuccessful claims and then taking a “percentage

reduction”       from     the   traditional    lodestar,         as   contemplated      by

Grissom. 3

        3
       The district court described its approach in its order
denying the motion to alter or amend, stating that: “After
arriving at the lodestar figure of $36,000.00, the Court
determined   that   further  reduction  [under  Grissom]  was
unnecessary because plaintiffs had been fully compensated for
the hours they worked. Finding that further reduction was
unnecessary does not support the argument that the earlier
reduction was in error.”


                                          11
     Under    the   circumstances      here,      we    have    no   hesitation   in

leaving undisturbed what the district court did, notwithstanding

that its methodology was not congruent with that contemplated by

Grissom. Plainly, the court was cognizant of the broad scope of

the case as Appellants filed it, see supra page 5 and note 2,

including    the    presence   of    state     law     claims    (which    were   not

“successfully”      prosecuted)     and    the    request      for   broad    relief,

compared to the more modest result achieved. We should not and

do   not   fault    the   district    court       for    an     arguable     analytic

imprecision    where,     substantively,         no    abuse    of   discretion   is

evident. In so doing, we bear in mind the following reminder

from the Supreme Court:

     [W]e have said repeatedly that “[t]he initial estimate
     of a reasonable attorney’s fee is properly calculated
     by multiplying the number of hours reasonably expended
     on the litigation times a reasonable hourly rate.”
     Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541,
     1544, 79 L.Ed.2d 891 (1984). The courts may then
     adjust this lodestar calculation by other factors.

Bergeron, 489 U.S. at 95 (emphasis added); and see Burlington v.

Dague, 505 U.S. 557 (1992):

          We have [turned to the lodestar model], it must
     be noted, even though the lodestar model often
     (perhaps, generally) results in a larger fee award
     than the contingent-fee model. See, e.g., Report of
     the Federal Courts Study Committee 104 (Apr. 2, 1990)
     (lodestar method may “give lawyers incentives to run
     up   hours    unnecessarily,  which   can   lead   to
     overcompensation”).




                                          12
Id. at 566 (brackets added).                  In    sum,     despite        its     imprecise

methodology, the district court plainly acted consonant with our

Grissom mandate. See Hensley v. Eckerhart, 461 U.S. 424, 437

(1983)     (noting       that      a    district      court      may   either       identify

particular hours to be eliminated or reduce the fee in light of

the limited success in calculating fee award).

                                               2.

     Appellants’          arguments       relying       on      City   of    Riverside      v.

Rivera, 477 U.S. 561 (1986), and Perdue v. Kenny A., 130 S. Ct.

1662 (2010),           fare   no   better      than   their      arguments        relying   on

Grissom.        They    contend        that    City     of      Riverside     prohibits     a

limitation on an award of attorney’s fees to a proportion of the

damages awarded. As the district court stated, however, City of

Riverside, did not impose a blanket prohibition on the use of

the rule of proportionality. In that case, the Supreme Court

merely “reject[ed] the proposition that fee awards . . . should

necessarily be proportionate to the amount of damages a civil

rights plaintiff actually recovers.” City of Riverside, 477 U.S.

at 565 (emphasis added). The Court emphasized the sui generis

nature     of    civil        rights    cases,      where       plaintiffs        “seek[]   to

vindicate important civil and constitutional rights that cannot

be valued solely in monetary terms” and fee awards are used to

deter future violations. Id. at 575-76. Nevertheless, the Court

expressly        held    that      “[t]he      amount      of    damages      a    plaintiff

                                               13
recovers is certainly relevant to the amount of attorney’s fees

to be awarded under § 1988.” Id. at 574. There is no indication

here that the district court relied solely on a proportionality

approach.

       Appellants’ reliance on the Supreme Court’s recent decision

in Perdue is similarly unavailing. They contended in their Rule

28(j)    submission    that      Perdue       involved    a    rejection    of    an

“arbitrary     enhancement”   of    a     lodestar      fee,   and   that   “if   an

arbitrary enhancement of the lodestar is reversible error, an

arbitrary reduction of the lodestar would be . . . an abuse of

discretion and reversible error.” Appellants overstate, if they

do not misstate, the holding in that case. In Perdue, the Court

held    that   an   attorney’s     fee    based    on    the   lodestar     may   be

increased due to superior performance, but only in extraordinary

circumstances. 130 S. Ct. at 1674. But while the Court held that

an enhancement to the lodestar fee may be permissible, it found

the justification there inadequate. Indeed, Perdue makes plain

that    the    lodestar   figure,        though    supported     by    a    “strong

presumption” of correctness, is not invariably the end of the

analysis but, in some classes of cases, only the beginning:

            In light of what we have said in prior cases, we
       reject any contention that a fee determined by the
       lodestar method may not be enhanced in any situation.
       The   lodestar  method  was  never  intended   to  be
       conclusive in all circumstances. Instead, there is a
       “strong presumption” that the lodestar figure is
       reasonable, but that presumption may be overcome in

                                         14
     those rare circumstances in which the lodestar does
     not adequately take into account a factor that may
     properly be considered in determining a reasonable
     fee.

Id. at 1673 (emphasis added). In any event, nothing in Perdue

persuades us that the district court’s reduced fee award here

was in any sense “arbitrary” or was otherwise the product of an

abuse of discretion.



                             III.

     For the reasons set forth above, the orders of the district

court are

                                                       AFFIRMED.




                               15
GREGORY, Circuit Judge, dissenting:

        The    fee   award     in   this   case    is   clearly     wrong.       After

calculating the initial lodestar fee of $47,800, the district

court stated that based on “the amount involved and the results

obtained,” it was reducing the fee award by twenty-five percent.

J.A. 369. 1      While the majority correctly notes that this is an

appropriate factor to consider under our precedent, we also have

precedent that mandates such consideration occurs by comparing

the relief sought to the relief awarded.                   Under the latter case

law, I am left with the inescapable conclusion that the court

abused its discretion by focusing on the value of the employees’

claims and thus respectfully dissent.



                                           I.

     This Court has recognized that the factor relied on by the

district      court     to   reduce   the    lodestar      fee,     “the    amount   in

controversy      and    the    results     obtained,”     Barber     v.    Kimbrell’s

Inc.,    577    F.2d    216,    226   n.28      (4th    Cir.   1978),      is   largely

coextensive      with    the    court’s     consideration      of    the   employee’s

“degree of success.”           Nigh v. Koons Buick Pontiac GMC, Inc., 478

F.3d 183, 190 (4th Cir. 2007).               “When considering the extent of


     1
       Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in this appeal.



                                           16
the relief obtained, we must compare the amount of the damages

sought to the amount awarded.”                 Mercer v. Duke Univ., 401 F.3d

199, 204 (4th Cir. 2005).              This comparison “rests on the idea

that a prevailing plaintiff is less worthy of a fee award when

one or more of his claims lack merit – that is, when he cannot

demonstrate that he deserves the compensation he demanded in his

complaint.”      Nigh, 478 F.3d at 190.

     The above analysis is consistent with the Supreme Court’s

elucidation      of    how    district    courts        should   account    for   the

“degree of success.”          In Hensley v. Eckerhart, the Supreme Court

stated    that   in    considering       the    “degree     of   success,”      “[t]he

result is what matters.”             461 U.S. 424, 435-36 (1983) (finding

that in a case where “a plaintiff has achieved only partial or

limited success, the product of hours reasonably expended on the

litigation as a whole times a reasonable hourly rate may be an

excessive    amount”).         The   Court      found    that    although   district

courts have discretion in making these judgments, the courts

must consider this success or result “in comparison to the scope

of the litigation as a whole.”                  Id. at 440.       For example, in

Hensley     itself,     the    Court     explained       that    “had    respondents

prevailed on only one of their six general claims, . . . a fee

award    based    on    the   claimed     hours     clearly      would   have     been

excessive.”      Id. at 436.



                                          17
       Following these principles, courts have reduced fee awards

where FLSA plaintiffs recovered only a portion of the amount

actually sought.        See, e.g., Saizan v. Delta Concrete Prods.

Co., Inc., 448 F.3d 795, 801 (5th Cir. 2006) (affirming the

district      court’s   reduction     of    the   lodestar      fee   due   to   the

difference between the amount initially sought in the complaint

and the ultimate settlement amount); Spegon v. Catholic Bishop

of Chicago, 175 F.3d 544, 558 (7th Cir. 1999) (affirming the

district      court’s   reduction     of    the   lodestar      fee   because    the

plaintiff      failed   to   obtain   the    full    overtime     pay   that     was

asserted in the complaint and failed all-together on his claim

for discrimination and its accompanying request for damages).

Courts have also reduced fee awards based on degree of success

when    the    plaintiffs    prevailed      on    only   some    of   the   claims

brought.      See, e.g., Spegon, 175 F.3d at 558; Baird v. Boies,

Schiller & Flexner LLP, 219 F. Supp. 2d 510, 523-24 (S.D.N.Y.

2002).

       In light of the above case law, the district court’s focus

on the damages awarded as compared to the attorneys’ fee is more

than “analytic imprecision” or “imprecise methodology.”                          Maj.

Op.    at   12.    Rather,   it   constitutes       error.       In   its   initial

determination of the fee, the court stated that the employees’

“total recovery was less than $10,000 before being doubled under

the liquidated damages provision of the FLSA,” that “of the six

                                       18
awards, four were less than $1,000 before doubling,” and that

“[a]n attorneys’ fee should bear some reasonable relationship to

the recovery of the plaintiffs.”                    J.A. 369.          The court then

stated    that    it   was    reducing      the    lodestar      fee   by   twenty-five

percent “[g]iven the modest value of the plaintiff’s claims.”

J.A. 369.        No other explanation was given for the fee reduction

at the time of the determination.                   No comparison of the relief

sought to the relief awarded was conducted by the court, as

mandated by case law when considering “results” or the “degree

of success.”           Nor did the court decide that any claims put

forward by the employees lacked merit.                     Subsequently responding

to the employees’ objection to the fee reduction, the court’s

main justification for reducing the fee remained its belief that

“the amount of plaintiffs’ claims and their eventual recovery

was quite modest.”        J.A. 418.

       “A presumptively correct ‘lodestar’ figure should not be

reduced    simply      because       a    plaintiff    recovered        a   low    damage

award.”        Cowan v. Prudential Ins. Co. of America, 935 F.2d 522,

526 (2d Cir. 1991).               The size of the damage award carries even

less    weight     here   given      that    the    case   arose       under     the   fee-

shifting provision of the FLSA.                  See Quaratino v. Tiffany & Co.,

166 F.3d 422, 426 (2d Cir. 1999) (“Congress enacted fee-shifting

in     civil    rights    litigation        precisely      because       the      expected

monetary       recovery      in    many    cases    was    too    small     to    attract

                                            19
effective legal representation.”); Fegley v. Higgins, 19 F.3d

1126, 1134-35 (6th Cir. 1994) (“The purpose of the FLSA attorney

fees provision is to insure effective access to the judicial

process   by    providing    attorney     fees    for    prevailing   plaintiffs

with wage and hour grievances.            Courts should not place an undue

emphasis on the amount of the plaintiff’s recovery because an

award   of   attorney      fees   here   encourage[s]      the   vindication   of

congressionally identified policies and rights.” (alteration in

original)      (internal    quotation     marks    and    citations   omitted).

Thus, by subjectively labeling the employees’ success “modest”

and failing to look at the success of the employees’ claims “in

comparison to the scope of the litigation as a whole,” Hensley,

461 U.S. at 440, the court abused its discretion.

     While the court did have discretion to consider the size of

the damages award, that amount was relevant only when compared

to the damages sought.            Mercer, 401 F.3d at 204.         The district

court itself found that no reduction for “degree of success” was

necessary because the employees “settled all of their claims for

full value.”       J.A. 370 (emphasis added).               I assume that the

district court meant what it said.                 Indeed, full success is

supported by the record.           The employees negotiated a settlement

that provided them with the maximum monetary relief due under

the FLSA – the full amount of overtime pay owed plus an equal

amount of liquidated damages.             When compared to the scope of

                                         20
litigation        as    whole,    which      evolved    solely       around    the       FLSA

claims, this relief cannot be classified as limited.                           There was

no   other    claim      that    the    employees      failed   to    succeed       on    the

merits,      and       the   majority     even    agrees    that      the     settlement

agreement “resolv[ed] all of Appellants’ claims.”                           Maj. Op. at

4.   Thus, the full lodestar fee should have been awarded. 2

      The majority closes its eyes to the district court’s focus

on the value of the employees’ claims.                      Beyond repeating the

same mistake made by the district court – judging the result

obtained     as    “modest”      in    and   of   itself,   see      maj.     op.    at    12

(describing the employees’ full recovery as a “modest result”) –

the majority seems to assert that the district court correctly

compared the result obtained to the result sought in justifying

the fee reduction.           This cannot be the case.            The district court

did, only after the employees objected, state that it compared

the relief sought to the relief obtained, and that the employees

“did not receive any of the other forms of relief they sought in

the complaint.”          J.A. 418. 3     The court is referring to the prayer


      2
       This is especially so given the “strong presumption” that
the full lodestar fee is reasonable and owed to prevailing
attorneys.   City of Burlington v. Dague, 505 U.S. 557, 562
(1992).
      3
       The court also claims that the employees obtained limited
success because only six employees joined the lawsuit.     It is
unclear how this fact means that the six employees that did opt
in were not successful. The fact that they settled their claims
(Continued)
                                             21
for relief contained in the complaint, which sought punitive

damages, a request for declaratory judgment, and various forms

of injunctive relief.          The majority likewise cites to the prayer

for relief, maj. op. at 5, as proof that a fee reduction is

appropriate because the employees failed to obtain every form of

relief requested.         In this case, placing such a burden on the

employees in order for them to obtain the full lodestar fee,

which is presumptively reasonable, is unfounded.                   First, as the

employees       and     amicus     point      out,    punitive     damages      and

reinstatement or other injunctive relief are not available for

claims under the FLSA.            EEOC v. Gilbarco, Inc., 615 F.2d 985,

987 n.1 (4th Cir. 1980) (finding that only the Secretary of

Labor   may   bring      an   action   for    injunctive    relief);    Lanza    v.

Sugarland Run Homeowners Ass’n, Inc., 97 F. Supp. 2d 737, 741

(E.D. Va. 2000) (holding that punitive damages are not allowed

under   the     FLSA).        Therefore,     the    employees   argue   that    the

request   for    such    relief    was     merely    boilerplate   language     and

should not provide a basis for finding limited success.                      There




within seven days of the district court’s granting their Motion
to Allow Notice to Similarly Situation Employees would seem to
indicate that the employers settled quickly to avoid a larger
damages award, meaning the employees were successful.    If the
court did rely on the number of employees that opted in, this
was legal error.   See Estrella v. P.R. Painting Corp., 596 F.
Supp. 2d 723, 727-28 (E.D.N.Y. 2009).



                                         22
is   support      for    this   assertion.          See     Smith     v.   District       of

Columbia, 466 F. Supp. 2d 151, 160 (D.D.C. 2006) (“The District

of   Columbia     argues    that   Plaintiff’s        degree     of    success       –   the

award of $72,000 – should be measured against the ad damnum

clause in her Complaint.           That is just plain foolish.                Ad damnum

requests,    as    all    judges   and     litigants        know,    rarely       bear   any

relationship        to     reality       or        expectations.”).                Second,

“[l]itigants in good faith may raise alternative legal grounds

for a desired outcome, and the court’s rejection of or failure

to reach certain grounds is not a sufficient reason for reducing

a fee.   The result is what matters.”                 Hensley, 461 U.S. at 435.

Here, the result was significant and the best possible under the

FLSA, which was the employees’ only stated source of relief.                             In

“the scope of the ligation as a whole,” id. at 440, the relief

was not limited.

      Finally,      because     the   other        relief    referred        to    by    the

district court and the majority is available only through the

breach of contract or quantum meruit claims, the court must have

necessarily meant that the failure of the employees to prevail

on   those   claims,       in   addition      to    the   FLSA      claim,    merited      a

reduction in the lodestar fee.                The majority specifically cites

“the presence of state law claims.”                   Maj. Op. at 12.              Yet, it

was impossible for the employees to prevail on both the FLSA

claim and the breach of contract/quantum meruit claims.                            Quantum

                                           23
meruit   was    an    alternative      to    the   breach    of     contract     claim.

Additionally, the breach of contract claim nowhere relies on

Virginia    law   and    asserts      no    contractual     basis    for   the    claim

other than the FLSA.           Thus, the breach of contract duplicates

the FLSA claim and is preempted under this Circuit’s precedent.

See Anderson v. Sara Lee Corp., 508 F.3d 181, 194 (4th Cir.

2007).     The court, therefore, relied on an alternative claim on

which the employees had no chance of success.

      It is telling that the majority omits discussion of the

district court’s final rationale for reducing the lodestar fee –

that the employees “did not achieve the sort of public benefits

discussed in City of Riverside.”                 J.A. 418.        This assertion is

patently incorrect.          As the court itself recited in the same

order, “damages in civil rights cases also serve[] the public

interest,      for     example,     by      deterring     future      civil      rights

violations.”      J.A. 417 (citing City of Riverside v. Rivera, 477

U.S. 561, 575 (1986)).            In City of Riverside, the Supreme Court

stated, “[r]egardless of the form of relief he actually obtains,

a   successful       civil   rights      plaintiff   often     secures     important

social benefits that are not reflected in nominal or relatively

small damages awards.”             477 U.S. at 574.               Thus, the public

interest promoted by civil rights statutes, such as the FLSA,

“is perhaps most meaningfully served by the day-to-day private

enforcement of these rights, which secures compliance and deters

                                            24
future violations.”               Quarantino, 166 F.3d at 426.                  Therefore,

counsel’s efforts to secure a full recovery in this case is

exactly the type of private enforcement of wage and hour rights

that achieves a public benefit.                       See Wales v. Jack M. Berry,

Inc.,    192   F.    Supp.    2d     1313,       1327    (M.D.    Fla.    2001)      (“It   is

recognized     that    the        FLSA     is    an     important    piece      of    social

legislation.        Accordingly, the public derived a benefit from the

plaintiffs’ recovery on their FLSA claims.”).                             Sadly today’s

opinion    discounts         the     public           benefit    that     unquestionably

accompanied counsel’s efforts. 4



                                                II.

     Additionally, the majority fails to recognize that although

the court did not run afoul of the Supreme Court’s rejection of

a rule of strict proportionality, see City of Riverside, 477

U.S. at 578, the district court’s emphasis on the size of the

attorneys’     fee    and    its     pro    rata       reduction    of    the   fee    comes

dangerously     close        to    such     violation       and     has    been      soundly

rejected by other courts.                 See Simpson v. Merchants & Planters

Bank, 441 F.3d 572, 581 (8th Cir. 2006) (finding in the context


     4
       The opinion goes further and, in an attempt to affirm the
“imprecise” reasoning of the district court, throws in a quote
suggesting counsel ran up hours in this case, maj. op. at 12, an
allegation of which there is no evidence whatsoever.



                                                25
of   an   Equal     Pay    Act     case   that     “a   pro    rata     reduction     [in

attorneys’ fees] would not normally be appropriate . . . [and

that      the     court        had]     explicitly      rejected        a    ‘rule    of

proportionality’          in     civil    rights     cases     because       tying    the

attorney’s fees to the amount awarded would discourage litigants

with small amounts of damages from pursuing a civil rights claim

in court”); Kassim v. City of Schenectady, 415 F.3d 246, 252 (2d

Cir. 2005) (“Reasoning that a rule calling for proportionality

between     the    fee     and    the     monetary      amount     involved     in    the

litigation would effectively prevent plaintiffs from obtaining

counsel in cases where deprivation of a constitutional right

caused injury of low monetary value, we have repeatedly rejected

the notion that a fee may be reduced merely because the fee

would be disproportionate to the financial interest at stake in

the litigation.”).

       Even if the majority is correct that some reduction in the

fee award was appropriate, which I do not believe to be the

case, the district court’s method of reducing the award by the

arbitrary figure of twenty-five percent without any explanation

as   to    how    the     percentage      was    arrived      at   is   an    abuse    of

discretion.        It is precisely this subjectivity on the part of

the district court that the lodestar analysis guards against,

making the Supreme Court’s decision in Perdue v. Kenny A. ex

rel. Winn, 130 S. Ct. 1662 (2010), particularly relevant.                              In

                                            26
Perdue, the Court considered whether a district court abused its

discretion       in    increasing          the        lodestar       fee        by     seventy-five

percent based on what the court believed to be extraordinary

results.        Id. at 1669.             The Court first noted “the lodestar

method     is     readily          administrable”              because              “the     lodestar

calculation is ‘objective,’ and thus cabins the discretion of

trial judges, permits meaningful judicial review, and produces

reasonably       predictable         results.”                Id.     at        1672       (citations

omitted).        The    Court       then    noted          that     while       “[t]he       lodestar

method     was        never        intended           to      be     conclusive              in        all

circumstances,”         “there       is     a     ‘strong          presumption’             that       the

lodestar    figure      is        reasonable,         but     that        presumption            may    be

overcome in those rare circumstances in which the lodestar does

not adequately take into account a factor that may properly be

considered in determining a reasonable fee.”                                Id. at 1673.               The

court    found    only        a    few    exceptional             circumstances             in     which

superior     attorney         performance             would        lead        to    an     increased

lodestar fee.          Id. at 1674.               One such instance was when “an

attorney’s       performance         includes          an     extraordinary                outlay       of

expenses and the litigation is exceptionally protracted.”                                              Id.

However, in such a rare case, the Court held that “the amount of

the   enhancement       must        be    calculated          using        a    method       that       is

reasonable, objective, and capable of being reviewed on appeal,



                                                 27
such    as     by    applying           a    standard         rate        of    interest    to    the

qualifying outlays of expenses.”                         Id. at 1674-75.

       As for the seventy-five percent increase in the lodestar

fee in Perdue, the Court found that “this figure appears to have

been essentially arbitrary.                         Why, for example, did the court

grant    a   75%      enhancement            instead       of       the    100%     increase      that

respondents sought?                  And why 75% rather than 50% or 25% or 10%?”

Id. at 1675.              Thus, although the Court found that an enhanced

fee    was   possible           in    some    circumstances,              it    reversed   the    fee

award because “when a trial judge awards an enhancement on an

impressionistic basis, a major purpose of the lodestar method-

providing       an        objective          and    reviewable            basis     for    fees    is

undermined.”         Id. at 1676 (citation omitted).

       Here,    the       same       prohibition         of     subjectivity         should      apply

when a judge asks whether a plaintiff’s “results obtained” are

limited.       The lodestar fee is presumptively reasonable and while

the district court did have discretion to reduce the fee based

on limited success, the court arbitrarily decreased the lodestar

fee    by    twenty-five             percent       even       if    we     assume    success       was

limited.       The court provided no rationale for why the decrease

was    not   above         or     below       the    number         it     chose,    offering      no

“objective          and     reviewable             basis,”         id.     at     1676,    for    the

percentage      decrease.               I     therefore            believe      today’s    decision

undermines the very purpose of the lodestar approach.

                                                    28
                                     III.

     Because     the    district   court     abused    its   discretion   in

reducing the presumptively reasonable lodestar fee based on its

determination    that    the   value    of   the   employees’    award    was

“modest”   and   in    arbitrarily     choosing    a   twenty-five   percent

reduction, I would reverse the order of the district court and

remand with instructions to award the full fee of $47,800.




                                       29
