                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           FEB 19 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    JANE ROE,

                Plaintiff-Appellant,

    v.                                                   No. 98-1138
                                                  (D.C. No. 95-WY-2152-CB)
    CHEYENNE MOUNTAIN                                     (D. Colo.)
    CONFERENCE RESORT, INC.,

                Defendant-Appellee.




                            ORDER AND JUDGMENT            *




Before ANDERSON , KELLY , and LUCERO , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       Plaintiff Jane Roe (a pseudonym used for purposes of privacy) appeals the

district court’s attorney fee award on her claims brought pursuant to the

Americans with Disabilities Act (ADA), 42 U.S.C. § 12112(d)(4)(A). As the

prevailing party in the underlying litigation, plaintiff is entitled to attorney fees

pursuant to 42 U.S.C. § 12205. In a prior appeal, this court directed the district

court to determine the appropriate amount of attorney fees and costs to be

awarded to plaintiff.   See Roe v. Cheyenne Mountain Conference Resort, Inc.        ,

124 F.3d 1221, 1234 (10th Cir. 1997) (   Roe I ). On remand, the district court made

various reductions to plaintiff’s attorney fee request of $196,371.22, and awarded

$100,080.47 to plaintiff. We dispense with another recitation of the underlying

facts. See id. at 1226-27.

       On appeal, plaintiff objects to the following reductions made by the district

court: (1) $15,000 for plaintiff’s failure to file a charge with the EEOC prior to

instigating this litigation; (2) $15,000 for plaintiff’s settlement posture; (3) fees

incurred by attorney Walta for professional expert witness services; (4) reductions

for unreasonable number of hours expended, duplication of services and failure to

keep adequate and contemporaneous records; and (5) a reduction of fifty attorney

hours on plaintiff’s state law claims. Plaintiff also claims the district court’s

denial of her motion to compel discovery was reversible error.




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       An attorney fee award under the ADA is treated similarly to fee awards

under Title VII and 42 U.S.C. § 1988.       See Roe I , 124 F.3d at 1232. We review

the district court’s fee award for an abuse of discretion.   See Malloy v. Monahan ,

73 F.3d 1012, 1017 (10th Cir. 1996).       The facts underlying a fee award are

reviewed for clear error.    See Mann v. Reynolds , 46 F.3d 1055, 1062 (10th Cir.

1995). The burden is on the fee applicant to establish her entitlement to an award

and to document the reasonable hours expended and hourly rates.        See Hensley v.

Eckerhart , 461 U.S. 424, 437 (1983).

       Plaintiff first objects to the district court’s reduction of $15,000 based on

her failure to file an EEOC claim before bringing suit, claiming the reduction was

punitive, not supported by the record, and not related to a specified number of

hours of attorney time. The district court concluded that the EEOC would have

found the challenged drug policy unlawful, but that defendant would have resisted

changing its policy even in the face of an adverse ruling by the EEOC. Therefore,

the district court made only a modest reduction in the fees plaintiff requested.

The district court fulfilled its obligation to consider on remand “whether the

plaintiff’s decision to bypass the EEOC initially increased the cost of the

litigation unnecessarily.”   Roe I , 124 F.3d at 1234. The district court provided

the requisite “concise but clear explanation of its reasons for the fee award,”

Hensley , 461 U.S. at 437, and there is no indication that the reduction was


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punitive. The district court was within its discretion to make a general reduction

in fees to comport with what it ascertained was reasonable.      See Carter v.

Sedgwick County , 36 F.3d 952, 956 (10th Cir. 1994).

       Plaintiff also objects to the district court’s reduction of $15,000 based on

her settlement posture. As directed,     the district court “determine[d] whether

either or both parties [bore] responsibility for the delay in resolving this case,”

Roe I , 124 F.3d at 1234, and concluded that both plaintiff and defendant were

responsible for the delay. Plaintiff argues that the district court erred in finding

that only her own attorney was at fault. The record clearly shows that the district

court found that attorneys for both parties were at fault. We conclude that the

district court did not abuse its discretion in reducing the fee awarded to plaintiff

for this reason.   See Ellis v. University of Kan. Med. Ctr.   , Nos. 96-3343 &

96-3344, slip op. at 34-36, 1999 WL 6431 (10th Cir. Jan. 11, 1999) (affirming

reduction in attorney fees due to delay in filing stipulation for dismissal).

       The district court denied plaintiff’s application for fees incurred by

Greg Walta, an attorney hired as an expert to testify on plaintiff’s attorney fee

application. Plaintiff maintains that she engaged Mr. Walta’s services to prepare

for the possibility that an evidentiary hearing would be held and that the district

court did not inform the parties until shortly before the hearing that evidence

would not be taken. On this record, we agree with the district court that plaintiff


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could have ascertained the nature of the hearing before committing substantial

sums to Mr. Walta. Furthermore, because no evidentiary hearing was held,

Mr. Walta’s assistance was not “actually necessary or essential to proper

representation.”   Case v. Unified Sch. Dist. No. 233   , 157 F.3d 1243, 1252

(10th Cir. 1998). We find no abuse of discretion in this ruling.

       Plaintiff next complains that the district court failed to identify each hour

of attorney time that was unreasonable, duplicative or inadequately recorded, and

therefore, a remand is required for further explanation. “[T]he district court need

not identify and justify every hour allowed or disallowed, as doing so would run

counter to the Supreme Court’s warning that a request for attorney’s fees should

not result in a second major litigation.”   Ellis , Nos. 96-3343 & 96-3344, slip op.

at 33 (quotations and citations omitted).

       Plaintiff also challenges the district court’s reduction of requested attorney

fees due to an unreasonable number of hours expended, duplication of services

and failure to keep adequate and contemporaneous records. “[I]t is within a

district court’s discretion to reduce the number of compensable hours upon

determining that the claimed time spent is excessive. Moreover, the court may

make a general reduction in hours claimed to achieve what the court perceives to

be a reasonable number.”      Carter , 36 F.3d at 956 (citations omitted).

Furthermore, “[w]here the documentation of hours is inadequate, the district court


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may reduce the award accordingly.”       Hensley , 461 U.S. at 433. We have

reviewed the record, keeping in mind that the district court has a “superior

understanding of the litigation,”   id. at 437. We find no abuse of discretion in the

district court’s reduction in the number of hours claimed by plaintiff’s attorneys.

       Plaintiff alleges the district court erred in reducing the requested attorney

fees for her state law claims because the numbers of hours disallowed exceeded

the total number of hours billed on these claims. The district court could not

determine from the billing records the amount of time spent on each claim.

Accordingly, it reduced the time spent by two of plaintiff’s attorneys by

twenty-five hours each. On appeal, plaintiff has not referred us to any record

support for the number of hours billed on these claims.      See SEC v. Thomas ,

965 F.2d 825, 827 (10th Cir. 1992) (reviewing court will not “sift through” the

record to find support for appellant’s arguments). We find no abuse of discretion

in the district court’s reduction of compensable hours on the state law claims.

See, e.g. , Hensley , 461 U.S. at 433.

       Finally, plaintiff appeals the district court’s denial of her motion to compel

discovery of defendant’s attorneys’ billing records and specified correspondence.

“We review a district court’s discovery orders for an abuse of discretion.”    Burks

v. Oklahoma Publ’g Co. , 81 F.3d 975, 981 (10th Cir. 1996). At the hearing held

on December 12, 1997, defendant revealed the rate charged by the losing counsel,


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a factor we have held may be relevant in determining a reasonable hourly rate,

see Sussman v. Patterson , 108 F.3d 1206, 1212 (10th Cir. 1997). The district

court clearly was familiar with both the settlement situation and the reasonable

number of hours expended.      See Blum v. Stenson , 465 U.S. 886, 899 (1984)

(recognizing district court is in best position to determine attorney fees).

Therefore, based on this record, we conclude that the district court did not abuse

its discretion in declining to compel production.   Cf. Anderson v. Secretary of

Health & Human Servs. , 80 F.3d 1500, 1507 (10th Cir. 1996) (“[W]e have

examined plaintiff’s requests for further discovery and fail to see how the

information she seeks would be relevant to the amount of the fee award.”).

       Plaintiff’s request for fees and costs incurred in this appeal is DENIED.

The judgment of the United States District Court for the District of Colorado

is AFFIRMED.



                                                     Entered for the Court



                                                     Paul J. Kelly, Jr.
                                                     Circuit Judge




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