                                                                     [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                           FILED
                                                                 U.S. COURT OF APPEALS
                      ------------------------------------------- ELEVENTH CIRCUIT
                                                                    JANUARY 13, 2009
                                   No. 08-12011
                                                                    THOMAS K. KAHN
                             Non-Argument Calendar
                                                                         CLERK
                      --------------------------------------------

                     D.C. Docket No. 07-22834-CV-PAS


LUISA E. SILVA,

                                                       Plaintiff-Appellant,

                                        versus

GRANT MILLER,
JOYCE MILLER,

                                                       Defendants-Appellees.


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                 Appeal from the United States District Court
                       for the Southern District of Florida
            ----------------------------------------------------------------
                                (January 13, 2009)

Before EDMONDSON, Chief Judge, BIRCH and DUBINA, Circuit Judges.

PER CURIAM:
        Appellants J. H. Zidell, Esq. and J. H. Zidell, PA (“Zidell”) appeal the

attorney’s fee awarded in an action brought under the Fair Labor Standards Act,

29 U.S.C. § 201 et seq., (“FLSA”) on behalf of employee Luisa Silva. No

reversible error has been shown; we affirm.

        Silva was employed as a domestic-service employee by Defendants Grant

and Joyce Miller. Zidell represented Silva in a minimum wage action. By fee

agreement between Zidell and Silva, Zidell was to receive a contingency fee equal

to the higher of 40% of the total recovery or an hourly rate based on $300.00 per

hour.

        The parties agreed to settle Silva’s FLSA claims for $20,000 -- an amount

stipulated to represent full compensation -- and sought dismissal of the case with

prejudice without court approval of the settlement. Zidell argued before the

district court that no court approval was required because the settlement provided

(before payment of attorney’s fees) that Silva recover all wages to which she was

entitled. The district court concluded that FLSA and Eleventh Circuit precedent

require that amounts paid under the settlement be reviewed to assure that the

settlement constitutes a fair and reasonable resolution of the employee’s claim.

After review of the record and oral argument, the district court determined that

$20,000 constituted a reasonable settlement amount; the court rejected Zidell’s

                                          2
claim to 40 per cent ($8,000) from that amount plus costs. The district court

determined that a fair and reasonable recovery for Silva was $12,286; a reasonable

attorney’s fee of $7,714 (a fee award of $6,325 plus $1,389 in costs) was awarded

to Zidell.

      Attorney Zidell argues that (1) no judicial oversight of an FLSA settlement

is appropriate unless the employee is proceeding pro se; (2) the district court

enjoyed no authority to reduce the amount of attorney’s fees under the

contingency contract to which the employee had agreed; and (3) whatever judicial

review might otherwise apply, no judicial review is applicable when the employee

is represented by counsel and the parties stipulate that the employee is receiving

full recovery under the facts of the case. We do not accept that FLSA

contemplates or sanctions such broad exemption of FSLA settlements from

judicial review.

      We start with the language of the statute:

             Any employer who violates the provisions of section 206
             or section 207 of this title shall be liable to the employee
             or employees affected in the amount of their unpaid
             minimum wages, or their unpaid overtime compensation,
             as the case may be, and in an additional equal amount as
             liquidated damages. ... The court in [an action to recover
             under FLSA] 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.

                                          3
29 U.S.C. § 216(b). The language of the statute contemplates that “the wronged

employee should receive his full wages plus the penalty without incurring any

expense for legal fees or costs.” Maddrix v. Dize, 153 F.2d 274, 275-76 (4th Cir.

1946). See also, Skidmore v. John J. Casale, Inc., 160 F.2d 527, 531 (2nd Cir

1947) (“We have considerable doubt as to the validity of the contingent fee

agreement; for it may well be that Congress intended that an employee’s recovery

should be net....”).

      As we noted in Lynn’s Food Stores, Inc. v. U.S. ex rel. U.S. Dept. of

Labor, 679 F.2d 1350, 1352 (11th Cir. 1982), FLSA provisions are mandatory; the

“provisions are not subject to negotiation or bargaining between employer and

employee.” Id. Only two ways exist for the settlement or compromise of an

employee FLSA claim: one is where an employee accepts payment supervised by

the Secretary of Labor, id. at 1352-53; the other is pursuant to “a stipulated

judgment entered by a court which has determined that a settlement proposed by

an employer and employees, in a suit brought by the employees under the FLSA,

is a fair and reasonable resolution of a bona fide dispute over FLSA provisions.”

Id. at 1354. On its face, Lynn’s Foods suggests no exception to judicial oversight

of settlements when the employee receives all wages due; it offers no support for




                                          4
the even broader exception proposed by Zidell that would include all counseled

settlements.

        Zidell contends that Lynn’s Food applies only when an FLSA claim is

compromised. See Mackenzie v. Kindred Hospital East, L.L.C., 276 F.Supp.2d

1211, 1217 (M.D. Fla. 2003) (“Lynn’s Food Stores addresses judicial oversight of

‘compromises’ of FLSA claims....There is no need for judicial scrutiny where, as

here, the defendant represents that it has offered the plaintiff more than full relief,

and the plaintiff has not disputed that representation.”). We do not say what, if

any, judicial oversight applies under Lynn’s Food when full satisfaction of the

FLSA claim is made; because FLSA directs the court to provide for payment of

the employee’s attorney’s fees by the defendant, the $20,000 settlement as

proposed by the parties -- from which attorney’s fees were to be deducted --

necessarily involved a compromise of the FLSA claim.1

        That Silva and Zidell entered into a contingency contract to establish

Zidell’s compensation if Silva prevailed on the FLSA claim is of little moment in

the context of FLSA. FLSA requires judicial review of the reasonableness of


    1
     As noted by the district court, the Settlement Agreement provided that Silva agreed to and
understood that the Agreement compromised disputed claims. And the district court determined that
the $10,611 recovery to Silva under the Settlement Agreement -- net after $8,000 for attorney’s fees
and $1,389 for costs -- fell below the range of reasonable recovery amounts. The Settlement
Agreement set out a compromised claim within the meaning of Lynn’s Food.

                                                 5
counsel’s legal fees to assure both that counsel is compensated adequately and that

no conflict of interest taints the amount the wronged employee recovers under a

settlement agreement. FLSA provides for reasonable attorney’s fees; the parties

cannot contract in derogation of FLSA’s provisions. See Lynn’s Food, 679 F.2d at

1352 (“FLSA rights cannot be abridged by contract or otherwise waived.”)

(quotation and citation omitted). To turn a blind eye to an agreed upon

contingency fee in an amount greater than the amount determined to be reasonable

after judicial scrutiny runs counter to FLSA’s provisions for compensating the

wronged employee. See United Slate, Tile & Composition Roofers v. G & M

Roofing & Sheet Metal Co., 732 F.2d 495, 504 (6th Cir. 1984) (“the determination

of a reasonable fee is to be conducted by the district court regardless of any

contract between plaintiff and plaintiff’s counsel”); see also Zegers v.

Countrywide Mortg. Ventures, LLC, 569 F.Supp.2d 1259 (M.D. Fla. 2008).

       The district court had a duty to review the compromise of Silva’s FLSA

claim and to award a reasonable attorney’s fee to Silva’s counsel. No reversible

error has been shown.2

       AFFIRMED.


   2
    We understand Zidell’s appeal to take issue with judicial review of the attorney’s fees and the
fact -- as opposed to the amount -- of reduction of the fee award.

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