                                PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 12-2481


EILEEN MCAFEE,

                 Plaintiff – Appellee,

          v.

CHRISTINE M. BOCZAR,

                 Defendant – Appellant,

          and

JOHN DOE 1; JOHN DOE 2; JOHN DOE 3,

                 Defendants.



                               No. 13-1088


EILEEN MCAFEE,

                 Plaintiff – Appellee,

          v.

CHRISTINE M. BOCZAR,

                 Defendant – Appellant,

          and

JOHN DOE 1; JOHN DOE 2; JOHN DOE 3,

                 Defendants.
                               No. 13-1356


EILEEN MCAFEE,

                 Plaintiff – Appellee,

           v.

CHRISTINE M. BOCZAR,

                 Defendant – Appellant,

           and

JOHN DOE 1; JOHN DOE 2; JOHN DOE 3,

                 Defendants.



Appeals from the United States District Court for the Eastern
District of Virginia, at Richmond.      Robert E. Payne, Senior
District Judge. (3:11-cv-00646-REP-MHL)


Argued:   October 30, 2013                   Decided:   December 12, 2013


Before NIEMEYER, KING, and DUNCAN, Circuit Judges.


Nos. 13-1356 and 13-1088 affirmed; No. 12-2481 vacated and
remanded with instructions by published opinion. Judge King
wrote the opinion, in which Judge Niemeyer and Judge Duncan
joined.


ARGUED:   Henry Keuling-Stout, KEULING-STOUT, PC, Big Stone Gap,
Virginia, for Appellant. William H. Hurd, TROUTMAN SANDERS LLP,
Richmond, Virginia, for Appellee.    ON BRIEF: Michael R. Ward,
MORRIS & MORRIS, PC, Richmond, Virginia, for Appellant. Stephen
C. Piepgrass, TROUTMAN SANDERS LLP, Richmond, Virginia, for
Appellee.


                                    2
KING, Circuit Judge:

       Defendant Christine Boczar, a deputy sheriff of Powhatan

County,       Virginia,   appeals      the   judgment      of    damages     plus

attorney’s fees entered against her in the Eastern District of

Virginia in this 42 U.S.C. § 1983 proceeding.                   Boczar presents

two appellate issues:        First, she contends that she is entitled

to qualified immunity such that a trial should not have been

conducted;      and,   second,   she   maintains   that,    even    should   the

jury’s verdict stand, the district court’s award of $322,340.50

in attorney’s fees to plaintiff Eileen McAfee is contrary to

law.       As explained below, we reject Boczar’s qualified immunity

contention and affirm the verdict of damages totalling $2943.60.

We vacate the attorney’s fee award, however, and remand for an

award of $100,000, exclusive of costs.



                                       I.

                                       A.

       On December 26, 2010, Eileen McAfee accompanied a friend to

a residence in Powhatan County, Virginia, to inspect a dog that

appeared to be in distress. 1          After securing permission from the


       1
       Insofar as they relate to the qualified immunity issue, we
recite the facts in the light most favorable to McAfee.     Henry
v. Purnell, 501 F.3d 374, 377 (4th Cir. 2007). With respect to
facts relating solely to the attorney’s fee award, we accept the
facts — unless clearly wrong — as they were set forth by the
(Continued)
                                        3
owner,    McAfee   examined        the    dog    and   concluded      that     it   lacked

appropriate shelter but was otherwise in good condition.                            McAfee

then bought the animal a new doghouse and, on January 7, 2011,

delivered it to the dog and its owner.                        While setting up the

doghouse, McAfee sought to feed the pet a treat.                       Unfortunately,

in its eagerness to eat the treat, the dog accidentally bit

McAfee’s hand, causing McAfee to seek medical treatment at a

local hospital.        The hospital reported McAfee’s dog bite to the

animal control authorities in Powhatan County.

       Deputy Boczar, an animal control officer with the Powhatan

County Sheriff’s Office, received notification of McAfee’s dog

bite    and    began   an    investigation.            On   January    10,     2011,   she

inquired by telephone about the incident, asking McAfee where

the dog was housed.               McAfee, who was unfamiliar with Powhatan

County, replied that she did not know the owner’s address but

could    lead    Boczar      to    the    dog’s    location.          Boczar    declined

McAfee’s offer and ended the conversation, which was apparently

the     only    exchange      Boczar      ever     had      with   McAfee.          Boczar

thereafter      contacted         two    other    persons,     further       seeking   to

locate the dog.             Both of those persons had spoken to McAfee




district court.         See Plyler v. Evatt, 902 F.2d 273, 278 (4th
Cir. 1990).



                                             4
about the dog bite incident, but neither had sought to ascertain

from McAfee the location of the dog.

       Predicated on these conversations, Boczar determined that

McAfee had refused to disclose to the authorities the location

of the dog, in violation of Virginia Code § 18.2-313.1, which

prohibits the withholding of information about possibly rabid

animals.      As a result, on January 13, 2011, Boczar secured an

arrest warrant for McAfee from a state court magistrate.                      Boczar

then arrested McAfee on the warrant and transported her to the

County   Sheriff’s      Office.       The       magistrate   thereafter     released

McAfee   on    bond,    and    a   one-day       jury   trial    was   conducted    in

magistrate court on May 27, 2011.                 At its conclusion, McAfee was

acquitted.

                                         B.

       On September 28, 2011, the underlying complaint was filed

in the Eastern District of Virginia, alleging that Boczar had

arrested      McAfee    without    probable       cause.     The    complaint      made

three separate claims:             first, a claim under 42 U.S.C. § 1983

for violation of McAfee’s Fourth Amendment rights (Count I);

second, a claim for malicious prosecution under state law (Count

II);   and,    third,    a    false   imprisonment       claim     under   state   law

(Count III).      In responding to McAfee’s complaint, Boczar moved

for summary judgment on the basis of qualified immunity, which

the court promptly denied.            Boczar also sought the dismissal of

                                            5
Count III under Rule 50 of the Federal Rules of Civil Procedure,

which the court granted.                  A jury trial was thereafter conducted

in Richmond on the allegations in the first two counts of the

complaint.

      At     the     trial’s        conclusion        on   July    6,    2012,    the      jury

returned a verdict for McAfee on the § 1983 claim and in favor

of    Boczar       on    Count      II.      At       trial,    McAfee    requested         both

compensatory            and   punitive           damages   as      “determined        by     the

evidence.”         McAfee v. Boczar, 906 F. Supp. 2d 484, 488 (E.D. Va.

2012) (the “Opinion”).                In closing argument to the jury, counsel

for   McAfee       summed      up    her    claims      thusly:     “[M]oney      can      never

really compensate for what has been done here, but money is the

only remedy the law has to offer.                       So what is the right number

to compensate Ms. McAfee?                        Is it $50,000?          Is it $500,000?

Something else?           Is it something more?                You decide.”      J.A. 339. 2

The   jury     verdict        found       that    McAfee   was     entitled      to   recover

$2943.60 in stipulated out-of-pocket expenses relating to her

state court defense, which the jury awarded on her § 1983 claim.

The    jury        declined         to     otherwise       award     McAfee      additional

compensatory or any punitive damages.

      2
       Our citations herein to “J.A. __” refer to the contents of
the Joint Appendix filed by the parties in this appeal.     As it
pertains to the issues herein, the published Opinion addressed
and disposed of McAfee’s § 1988 fee petition without revisiting
the district court’s decision to deny Boczar qualified immunity.


                                                  6
      After the jury returned its verdict, Boczar made a renewed

motion for qualified immunity on the § 1983 claim.                The district

court again denied the motion, explaining that Boczar’s conduct

in arresting McAfee lacked probable cause and “fails to meet the

test of objective reasonableness” required for the protection of

qualified immunity.       McAfee v. Boczar, No. 3:11-cv-00646, 2012

WL 3525619, at *2 (E.D. Va. Aug. 15, 2012).                 In so ruling, the

court focused on Boczar having secured McAfee’s arrest warrant

on the basis of false statements.          Indeed, Boczar represented to

the magistrate that McAfee “refuse[d]” to give any information

about the dog’s whereabouts.         Id. at *3.       At trial, however, it

was   established    that     this   statement    was       untrue.      Boczar

testified that, in her only conversation with McAfee, Boczar had

explained that she could locate the dog, though she did not have

the address where it lived.           Neither of the other two persons

Boczar interviewed about the dog bite incident told Boczar that

McAfee   had   refused   to   give   the   location    of   the   dog.    As   a

result, the court concluded that Boczar lied to the magistrate

to secure the arrest warrant, and that such conduct “does not

give rise to qualified immunity.”          Id.

      After the court accepted the verdict and entered judgment

thereon, McAfee filed a petition pursuant to 42 U.S.C. § 1988,

seeking a total of $365,027 in attorney fees, plus $10,305.51 in

costs (the “Fee Petition”).          Though acceding to the full amount

                                      7
of the documented costs, Boczar complained that the requested

fees    were     unreasonable           and    countered       with     a    fee       proposal

awarding      $15,000.         The     district      court    then    referred          the    Fee

Petition       to    a        federal     magistrate          judge        for     settlement

negotiations.             A      settlement         conference       was     conducted          on

September 19, 2012, but the parties were unable to reach an

accord.       The magistrate judge reported to the district court

that    the     state’s        Division        of    Risk     Management,          which       was

responsible for the damages award, had refused to negotiate in

good faith.

       Because      the    settlement         negotiations      failed,          the   district

court   independently            evaluated      the    Fee    Petition       to        determine

whether the request was reasonable under 42 U.S.C. § 1988, which

provides      that     “the      court,   in    its       discretion,       may    allow       the

prevailing party, other than the United States, a reasonable

attorney’s      fee”      with     respect      to    a     claim,    inter       alia,       made

pursuant to § 1983.               Applying the familiar “lodestar” method,

the court granted the Fee Petition in part.                          By its Opinion, the

court determined that the hourly rates of McAfee’s lawyers were

reasonable and that, applying a ten percent reduction in the

hours logged to account for “block billing,” the amount of time

devoted    to    the      case    by    counsel      was    also     reasonable.           As    a

result, the court awarded McAfee $322,340.50 in attorney’s fees,



                                                8
plus the $10,305.51 in agreed costs.              See McAfee, 906 F. Supp.

2d at 505.

     Boczar   has     timely      appealed,     challenging    the    district

court’s denial of qualified immunity and its related decision to

conduct a trial, and also seeking to vacate the attorney’s fee

award.   We possess jurisdiction pursuant to 28 U.S.C. § 1291. 3



                                      II.

                                      A.

     McAfee alleged that Boczar violated her Fourth Amendment

rights by subjecting her to arrest without probable cause.                    In

seeking relief from McAfee’s allegations of liability pursuant

to 42 U.S.C. § 1983, Boczar unsuccessfully asserted qualified

immunity.     We    review   de    novo    a   district   court's    denial   of


     3
       Boczar filed three notices of appeal. The first (No. 12-
2481) was from the district court’s November 2, 2012 Order
granting McAfee’s initial fee petition and awarding her
$332,646.01.   The second (No. 13-1088) was from the court’s
Order   filed   December  19,   2012,   disposing  of   McAfee’s
supplemental petition in which she requested an additional
$59,021.00 in attorney’s fees incurred post-trial, including
fees for preparation of the initial fee petition.     The court
granted the supplemental petition, but, after substantial
reductions in the amount claimed, awarded only $12,628.      The
supplemental award has gone virtually unchallenged here, and we
therefore affirm it.   The third notice of appeal (No. 13-1356)
was from the court’s judgment of February 22, 2013, awarding
McAfee $2943.60 in damages. The court had delayed its entry of
judgment pending final resolution of Boczar’s renewed qualified
immunity defense.



                                       9
qualified immunity.            Merchant v. Bauer, 677 F.3d 656, 661 (4th

Cir. 2012). 4

     In    this     case,   Boczar     invoked     qualified       immunity    in     the

district    court      prior    to   trial    by   way   of    a   summary    judgment

request.    In some circuits, a defendant’s failure to follow the

procedures set forth in Rule 50 — beginning with a Rule 50(a)

motion    and   then    renewing      the    contention       under   Rule    50(b)    —

constitutes     a   waiver      of   the    qualified    immunity     claim.        See,

e.g., Parker v. Gerrish, 547 F.3d 1, 12 (1st Cir. 2008) (“[W]e

have held that even if a defendant raises qualified immunity at

summary judgment, the issue is waived on appeal if not pressed

in a Rule 50(a) motion.”); Sykes v. Anderson, 625 F.3d 294, 304

(9th Cir. 2010) (“The Defendants' failure to make a pre-verdict

motion for judgment as a matter of law under Rule 50(a) on the

grounds of qualified immunity precluded them from making a post-


     4
       Boczar has proceeded with her qualified immunity argument
in an arguably unconventional manner.       She first asserted
qualified immunity in a motion for summary judgment under Rule
56.   After the district court denied the motion, McAfee’s case
proceeded to trial.    Boczar did not raise qualified immunity
again until after the jury verdict.     Although a post-verdict
motion for judgment as a matter of law is acceptable under Rule
50(b), it is usually preceded by one or more motions under Rule
50(a), typically made at the close of the plaintiff’s case-in-
chief and again after all the evidence has been presented. See
Fed. R. Civ. P. 50(a) (authorizing a party to seek judgment as a
matter of law at any time before the case is submitted to the
jury). A party is permitted to renew a Rule 50(a) motion after
trial. See Fed. R. Civ. P. 50(b).



                                            10
verdict      motion    under       Rule    50(b)        on    that          ground.”).         Here,

however, we need not decide whether Boczar’s unusual approach

has worked a waiver of qualified immunity, because we are amply

satisfied that no such immunity was warranted.

      Qualified immunity serves to protect a government official

from liability for civil damages unless the facts alleged show a

violation      of      a    clearly        established            constitutional           right.

Merchant, 677 F.3d at 662.                Here, McAfee asserts her right under

the   Fourth    Amendment      to     be       free    from       arrest       absent    probable

cause   to    believe      that     she    had        committed         a    crime.      We     have

consistently explained that probable cause has been shown “when

the facts and circumstances within an officer’s knowledge — or

of which he possesses reasonably trustworthy information — are

sufficient     in     themselves      to        convince      a     person       of    reasonable

caution      that     an   offense        has    been        or    is       being     committed.”

Wadkins v. Arnold, 214 F.3d 535, 539 (4th Cir. 2000).

      In     this     situation,          it     is     clear       that        Boczar     lacked

sufficient      knowledge      about        McAfee’s          dog    bite       to     reasonably

believe      that     McAfee   contravened             Virginia         law.          Boczar    had

interviewed     only       three    persons,          and    none       had     suggested       that

McAfee was refusing to disclose the dog’s location.                                     With such

limited knowledge, a law officer of reasonable caution would not

believe that McAfee had violated § 18.2-313.1.                                      Indeed, that

Boczar made false statements to the state magistrate in seeking

                                                11
McAfee’s      arrest       suggests        that        Boczar     understood       that     the

evidence failed the probable cause standard.

      By    securing       a    warrant         that     lacked      adequate    evidentiary

support, Boczar infringed McAfee’s Fourth Amendment right to be

free from capricious arrest.                     And this constitutional right is

clearly established.             See Miller v. Prince George's Cnty., 475

F.3d 621, 627 (4th Cir. 2007) (“Unquestionably, [t]he Fourth

Amendment      prohibits         law       enforcement          officers        from    making

unreasonable         seizures,       and       seizure    of    an    individual       effected

without     probable       cause      is       unreasonable.”         (internal    quotation

marks omitted)).           Therefore, Boczar cannot shield herself from

damages liability by invoking qualified immunity.

                                                 B.

      The     more      difficult     issue       in     this   appeal     is   whether     the

district court’s § 1988 attorney’s fee award is “reasonable.”

The threshold requirement for such an award is, of course, that

the   §    1983    plaintiff       be      a    “prevailing          party.”      Hensley    v.

Eckerhart, 461 U.S. 424, 433 (1983).                       The designation of a party

as “prevailing” is a legal question that we review de novo.                                 See

Grissom v. The Mills Corp., 549 F.3d 313, 318 (4th Cir. 2008).

For purposes of § 1988, “a party in whose favor a judgment is

rendered, regardless of the amount of damages awarded,” is the

prevailing party.          Id.       More specifically, a party has prevailed

if    there       has    been    a      “material         alteration       of     the     legal

                                                 12
relationship     of        the    parties,”       and     there     is     a     “judicial

imprimatur on the change.”            Id.

       Neither party disputes the proposition that McAfee was the

prevailing party on the § 1983 claim.                      The jury’s verdict of

$2943.60 created a material alteration of the legal relationship

between McAfee and Boczar, and the district court’s power to

enforce that award provides the requisite judicial imprimatur.

Because     McAfee    is    a    prevailing      party    under   §      1988,    we   must

determine whether the attorney’s fee award is a reasonable one.

                                            C.

       We review for abuse of discretion a district court’s award

of attorney’s fees, but, we will only reverse such an award if

the district court is “clearly wrong” or has committed an “error

of law.”     Brodziak v. Runyon, 145 F.3d 194, 196 (4th Cir. 1998).

The proper calculation of an attorney’s fee award involves a

three-step     process.           First,    the    court     must     “determine       the

lodestar figure by multiplying the number of reasonable hours

expended times a reasonable rate.”                      Robinson v. Equifax Info.

Servs., LLC, 560 F.3d 235, 243 (4th Cir. 2009).                            To ascertain

what   is   reasonable       in   terms     of    hours    expended      and     the   rate

charged, the court is bound to apply the factors set forth in

Johnson v. Georgia Highway Express Inc., 488 F.2d 714, 717–19




                                            13
(5th Cir. 1974). 5       Id. at 243–44.      Next, the court must “subtract

fees       for   hours   spent   on   unsuccessful   claims     unrelated   to

successful ones.”         Id. at 244.     Finally, the court should award

“some      percentage    of   the   remaining   amount,   depending   on    the

degree of success enjoyed by the plaintiff.”              Id.   Although the

district court in this case adequately performed the first two

steps, it erred on the third.             That is, it overstated McAfee’s

success. 6


       5
       Our Court has characterized the twelve Johnson factors as
follows:

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

See Barber v. Kimbrell’s Inc., 577 F.2d 216, 226 n.28 (4th Cir.
1978)    (adopting  twelve    factors   for   determining   the
reasonableness of attorney’s fees that Fifth Circuit identified
in Johnson).
       6
        Boczar argues on appeal that McAfee secured only a
“nominal” award from the jury, and so the district court should
not have awarded an attorney’s fee at all.      This contention
fails, however, because the damages award, though small in
dollar amount, is not nominal.     An award of nominal damages
signifies that a plaintiff has established a violation of his
(Continued)
                                        14
                                     1.

        The Supreme Court has indulged a “strong presumption” that

the lodestar number represents a reasonable attorney’s fee.                    The

Court   recently    explained    that   this   presumption      can    only    be

overcome “in those rare circumstances where the lodestar does

not adequately take into account a factor that may properly be

considered   in    determining   a   reasonable     fee.”     See     Perdue    v.

Kenny A. ex rel. Winn, 130 S. Ct. 1662, 1673 (2010).                Consistent

with the prescribed methodology, the district court addressed

the attorney’s fee issue by calculating the lodestar number.                   In

so doing, the court relied on the Johnson factors to determine

the applicable multipliers.

     The Opinion’s application of the Johnson factors warrants a

brief discussion.       As the district court recognized, we have

reviewed attorney’s fee awards primarily by use of the lodestar

method,   with    “substantial   reliance”     on   the     Johnson    factors,

“sometimes to inform the calculation of the lodestar, sometimes

to make upward or downward adjustments to it, and sometimes for

both purposes.”     906 F. Supp. 2d at 490.         The Opinion explained,




right but has not proved actual loss. See Farrar v. Hobby, 506
U.S. 103, 112 (1992). Here, the damages awarded represented the
“entirety of McAfee’s out-of-pocket expenses.”  McAfee, 906 F.
Supp. 3d at 503. As such, the jury’s award cannot be classified
as nominal.



                                     15
however, that unquestioning reliance on Johnson is not justified

in the post-Perdue world because that Supreme Court decision

“teaches so clearly that departures from the lodestar figure are

to occur rarely and only in extraordinary cases.”                  Id. at 491.

Moreover, as the Opinion relates, the Perdue Court emphasized

that “an enhancement may not be awarded based on a factor that

is subsumed in the lodestar calculation.”             Id. (quoting Perdue,

130 S. Ct. at 1673).      Accordingly, the court determined that its

consideration of certain of the Johnson factors was foreclosed

by the lodestar calculation.        See id. at 490.

     At the outset, the district court decided that the number

of hours reasonably expended by McAfee’s lawyers — the first

multiplier in the lodestar calculation — encompasses at least

three Johnson factors — Factor 1 (time and labor expended),

Factor 2 (novelty and difficulty of question raised), and Factor

7 (time limitations imposed by the client or circumstances).

See id. at 492.        As such, those three factors did not warrant

further consideration in calculating the attorney’s fee award.

The court then explained that the reasonable hourly rate — the

second multiplier in the lodestar calculation — subsumes five

additional    Johnson    factors:        Factor   3   (skill       required   to

properly     perform    legal      services);     Factor     4      (attorney’s

opportunity    cost);     Factor     5     (customary      fee);     Factor    6

(attorney’s expectations at outset of litigation); and Factor 9

                                      16
(experience, reputation, and ability of attorney).                      See id.       As

a   result,      according    to    the   court,     those    five     factors      also

collapse into the lodestar calculation.                  Ultimately, pursuant to

the   court’s      lodestar    analysis,       Perdue     reserved     four    Johnson

factors for use in adjusting the lodestar fee amount:                         Factor 8

(amount     in     controversy      and     results       obtained);     Factor      10

(undesirability       of     case   within      legal    community);     Factor      11

(nature and length of professional relationship between attorney

and client); and Factor 12 (attorneys’ fee awards in similar

cases).     See id.

      We    have    indeed     recognized        that,     consistent        with   the

district    court’s    analysis,      “to      the   extent   that     any    of    [the

Johnson factors] has already been incorporated into the lodestar

analysis, we do not consider [those factors] a second time.”                         E.

Associated Coal Corp. v. Dir., OWCP, 724 F.3d 561, 570 (4th Cir.

2013) (citing Perdue, 130 S. Ct. at 1673).                   We have never ruled,

however, that when certain Johnson factors have merged into the

lodestar calculation, they are not to be otherwise considered to

adjust     the    lodestar     amount.         Although    some   of    our     sister

circuits agree that any Johnson factor subsumed in the lodestar

calculation should in no other way affect the determination of

an attorney’s fee award, few have explicitly identified specific




                                          17
factors to which such a principle might apply. 7                  For example, the

Fifth     Circuit    has   held   that    a    bankruptcy      court      abused   its

discretion in using four of the Johnson factors “to justify its

substantial     upward     departure     from       the   lodestar”      because   the

lodestar amount already accounted for those factors.                       See Matter

of Fender, 12 F.3d 480, 488 (5th Cir. 1994).                           And the Second

Circuit recently held that a district court erred in adjusting

the   initial   lodestar     figure      on   the    basis   of    Johnson     factors

already included.          See Millea v. Metro-N. R.R. Co., 658 F.3d

154, 167–68 (2d Cir. 2011).

      In any event, we need not further assess or identify which

of    the   Johnson    factors    might       be    subsumed      by    the   lodestar

calculations.         In its Perdue decision, the Supreme Court was

addressing the enhancement of a lodestar attorney’s fee.                       130 S.

Ct. at 1673.        In this case, however, the district court did not

enhance the lodestar fee calculation — it simply reduced that


      7
       At least three of our sister circuits have also evaluated
the relationship between Perdue and Johnson.    See, e.g., Black
v. SettlePou, P.C., 732 F.3d 492, 502 (5th Cir. 2013) (“The
lodestar may not be adjusted due to a Johnson factor that was
already taken into account during the initial calculation of the
lodestar.”); Millea v. Metro-N. R.R. Co., 658 F.3d 154, 167 (2d
Cir. 2011) (“[A] court may not adjust the lodestar based on
factors already included in the lodestar calculation itself
because doing so effectively double-counts those factors.”);
Anchondo v. Anderson, Crenshaw & Assocs., L.L.C., 616 F.3d 1098,
1103 (10th Cir. 2010) (determining that Perdue “appears to
significantly marginalize the twelve-factor Johnson analysis”).



                                         18
calculation by $42,600.          Predicated on these distinctions, we

limit our analysis to ensuring that the court’s application of

the Johnson factors was a reasonable one and that it did not

inappropriately weigh any particular factor.

       Returning to step one — calculation of the lodestar fee

amount — we will not disturb the district court’s determination

of the lodestar multipliers.           We explain further below.

                                          a.

       In her Fee Petition, McAfee requested an award for 996.7

hours of legal work by her lawyers.              McAfee, 906 F. Supp. 2d at

496.        The district court reduced the hours of her two lead

attorneys by ten percent each, because they had used a “block

billing” system (lumping tasks together in time entries rather

than making such entries task-by-task).                Id. at 500.         The court

also eliminated the hours recorded by the “client originator”

because his time overlapped that of the lead attorneys.                       Id. at

501.    Neither of the parties disputes these calculations, and

they are not further addressed.

       In    determining   whether        the   time    expended      by    McAfee’s

lawyers      was   reasonable,      the    Opinion     referred      to     Boczar’s

unwillingness      to   entertain      settlement      on   the    attorney’s     fee

issues.      See McAfee, 906 F. Supp. 2d at 502.             The court observed

that failure to contemplate a settlement strategy “makes for

expensive      litigation,”      and      the   defendant         must     bear   the

                                          19
consequences.         Id. at 501–02.        Boczar asserts that the court, by

taking    her     settlement           position    into     account,         abused    its

discretion and punished Boczar for her recalcitrance.                           Boczar’s

argument falls short in two respects.                      First, a district court

“has     discretion         to    consider        settlement       negotiations         in

determining the reasonableness of fees but it is not required to

do so.”    Thomas v. Nat'l Football League Players Ass'n, 273 F.3d

1124, 1130 n.9 (D.C. Cir. 2001); see also Sands v. Runyon, 28

F.3d 1323, 1334 (2d Cir. 1994) (concluding that a district court

can consider settlement offers in making a fee award).                           Second,

although the court expressed disapproval of Boczar’s apparent

failure    to    seriously       engage     in    settlement      negotiations,        the

court did not alter its lodestar calculations to reflect that

disapproval.          The   court       simply    observed    that      any    prolonged

litigation caused by a failure to settle would be “subsumed” in

the time component of the lodestar calculation.                         McAfee, 906 F.

Supp. 2d at 502 n.17.            In other words, the court’s assessment of

the    settlement      negotiations       could    not     have   had    a    measurable

impact on the lodestar calculation.                  In these circumstances, the

court    did    not   abuse      its    discretion    in    calculating       the     hours

expended by McAfee’s lawyers.

                                            b.

       McAfee's lead counsel charged an hourly rate of $585, and

his senior associate charged $365 per hour.                          McAfee, 906 F.

                                            20
Supp. 2d at 496.              As the fee applicant, McAfee bore the burden

of establishing the reasonableness of those hourly rates.                                   See

Plyler v. Evatt, 902 F.2d 273, 277 (4th Cir. 1990).                                     A fee

applicant is obliged to show that the requested hourly rates are

consistent with “the prevailing market rates in the relevant

community for the type of work for which [s]he seeks an award.”

Id.        The evidence we have deemed competent to show prevailing

market rates includes “affidavits of other local lawyers who are

familiar both with the skills of the fee applicants and more

generally         with    the    type    of    work       in   the   relevant   community.”

Robinson, 560 F.3d at 245.

       Boczar contends that McAfee failed to provide the essential

evidence          on   the    hourly     rate    issue.          The      opinion,    however,

concluded that the affidavits of two experts were sufficient to

substantiate           the    hourly     rates       of    McAfee’s       lawyers,    and    so

“McAfee       has      more     than    met     her    burden        of   establishing      the

reasonable hourly rate for her counsel.”                             McAfee, 906 F. Supp.

2d    at    496.         Although      those    rates      would     appear    excessive     to

almost any lay observer, and some members of the judiciary would

deem       them    exorbitant,         the    district         court’s     findings    to   the

contrary are entitled to our deference.                              As a result, we are




                                                21
unable to disturb its finding that the requested hourly rates

are reasonable. 8

                                          2.

         After determining that the hours expended and the attendant

rates        requested   by   a    lawyer      for    a     prevailing   party   are

reasonable, a court is obliged to “subtract fees for hours spent

on   unsuccessful        claims    unrelated         to   the   successful    ones.”

Grissom, 549 F.3d at 321.              Of the three counts alleged, McAfee

prevailed on solely her § 1983 claim, and then only with respect

to   a       single   category    of   damages,      that    is,   general   damages

reimbursing McAfee for her out-of-pocket expenses.                       The other

two categories of damages McAfee sought in connection with her

§ 1983 claim — special damages plus punitive damages — were

wholly rejected. 9


         8
        We observe that the hourly rates of court-appointed
counsel in federal criminal cases are substantially less than
those being sought here. Compensation paid to appointed counsel
for time expended in or out of court or before a magistrate
judge may not exceed $125 per hour.     See 7A Admin. Office of
U.S. Courts, Guide to Judiciary Policy § 230.16(a) (2013).
Furthermore, the maximums for representation of a criminal
defendant in a federal felony case are $9700 for the trial court
level and $6900 for the appeal. Id. § 230.23.20. Viewed from
that perspective, McAfee’s lawyers may be said to have received
a hefty premium for their legal services.
         9
       See Slaughter v. Valleydale Packers, Inc., of Bristol, 94
S.E.2d 260, 266 (Va. 1956) (reciting that “there are two general
classes of compensatory damages . . . : (1) general damages, or
those which the law presumes to be the natural, proximate, and
necessary result of the [tort]; and (2) special damages, or
(Continued)
                                          22
     By its Opinion, the district court agreed with McAfee’s

lawyers that a six percent reduction for prevailing on one of

three counts in the complaint was a reasonable reduction because

McAfee’s   counsel        “identified    the    work    that    was    performed     in

furtherance    of    the     unsuccessful      counts”    and    “deducted        those

hours,    on   a    line-by-line     basis,      from    the    work    performed.”

McAfee, 906 F. Supp. 2d at 497.               Moreover, the Opinion explained

that the three counts in the complaint involved a common core of

facts, and therefore “[m]uch of counsel’s time [was] devoted

generally to the litigation as a whole.”                   Id. at 502 (quoting

Hensley,   461     U.S.     at   435).     Reducing      the    number       of   hours

expended by six percent and multiplying it by the hourly rate,

the court calculated McAfee’s lodestar fee as $322,340.50.

     We    will     not    dispute   the      district    court’s      six    percent

reduction to account for the commonality of effort expended on

unsuccessful Counts II and III.               We are concerned, however, that



those which, although a natural and probable consequence
thereof, are not assumed to be necessary or inevitable, and must
be shown by allegation and proof” (citation and internal
quotation marks omitted)).    McAfee’s complaint and contentions
at trial identified three categories of damages being sought
under § 1983: (1) general compensatory damages for out-of-pocket
expenses incurred in defending state criminal charges; (2)
special   compensatory  damages   for   deprivation of   liberty,
humiliation   and   embarrassment,   inconvenience,  and   mental
anguish; and (3) punitive damages.      See J.A. 28–29 & 338–39.
The jury instructions conveyed these categories of potential
damages to the jury. See id. at 353.



                                         23
the     court    failed     to    properly      consider     McAfee’s    failure       to

receive an award on her § 1983 claim, except for her undisputed

out-of-pocket expenses.             We will further explain those concerns.

                                           3.

      In the final step before making an attorney’s fee award

under § 1988, a district court must “consider the relationship

between the extent of success and the amount of the fee award.”

The     court    will     reduce     the    award    if    “the    relief,      however

significant,       is     limited    in    comparison      to    the   scope    of    the

litigation as a whole.”              Hensley, 461 U.S. at 439–40.               Indeed,

the     Supreme     Court     has     recognized      that       the   extent    of     a

plaintiff’s success is “the most critical factor” in determining

a reasonable attorney’s fee under 42 U.S.C. § 1988.                      Id. at 436.

What the court must ask is whether “the plaintiff achieve[d] a

level    of     success    that    makes   the    hours    reasonably     expended      a

satisfactory basis for making a fee award.”                     Id. at 434.

      Although McAfee’s success in recovering her general out-of-

pocket expenses must be accorded respect, it does not justify a

fee award of over $300,000 — approximately 109 times the verdict

— when     McAfee’s       failure     to   recover   any     special    compensatory

damages, or any punitive damages at all, is taken into account.

Though Congress intended § 1988 fee awards to be “adequate to

attract competent counsel,” it also wanted to avoid “produc[ing]

windfalls to attorneys.”             City of Riverside v. Rivera, 477 U.S.

                                           24
561,    580     (1986).         The    district       court’s      erroneous         view    of

McAfee’s success — best illustrated by comparing McAfee’s lofty

expectations with the jury’s paltry damages award — produced an

excessive       fee    award    that     would,       in    our    view,      constitute      a

windfall.

                                              a.

       We have recognized that, “[w]hen considering the extent of

the    relief       obtained,    we    must     compare      the    amount      of    damages

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

199, 204 (4th Cir. 2005).                If a § 1983 plaintiff achieves only

part   of     the     success   she     sought,       the    lodestar      amount     may    be

excessive.         See Farrar v. Hobby, 506 U.S. 103, 114 (1992).                           For

example,      in      Farrar,    the     plaintiffs         sought      $17     million     in

compensatory damages, but the jury awarded only the meager sum

of    one   dollar.       Id.         Because      the     district     court    failed      to

compare the plaintiff’s damages request with the nominal jury

verdict, the Court reversed a fee award of $280,000.                                  Id. at

115–16.       In her concurrence, Justice O’Connor elaborated: “[A]

substantial difference between the judgment recovered and the

recovery      sought     suggests      that     the      victory   is    in    fact    purely

technical.”           Id. at 121 (O’Connor, J., concurring) (emphasis

added).       In Farrar, the plaintiff “asked for a bundle” ($17

million) and “got a pittance” ($1).                        Id. at 120.        As such, the



                                              25
Court ruled that any award of attorney’s fees was unjustified.

Id. at 116.

       To accurately gauge McAfee’s success, the district court,

in accordance with Mercer and Farrar, should have compared what

she sought with what was awarded.                  Although McAfee downplays her

attempts to recover anything beyond her out-of-pocket expenses,

the record below suggests her pursuit of a bigger payday was

sincere, even pointed.               Indeed, McAfee conceded at trial that

“[t]here are out-of-pocket expenses[, b]ut that’s not what this

case    is   really        about.”       J.A.     338.      In    particular,          McAfee

requested     special         compensatory        damages    for       “deprivation       of

liberty,” “great inconvenience,” “great insult and humiliation,”

and    “mental    anguish.”            Id.   at   338–39.        Counsel         for   McAfee

rhetorically inquired of the jury, “What is the right number to

compensate       Ms.       McAfee?      Is   it    $50,000?            Is   it    $500,000?

Something else?             Is it something more?”           Id. at 339 (emphasis

added).      McAfee’s arrest, according to her lawyers, caused her

to lose weight and forgo sleeping, diminishing her energy.                               See

id.    McAfee’s lawyers therefore strongly encouraged the jury to

compensate her for these special injuries.                       See id.     In the face

of McAfee’s effort to secure a damages verdict of $500,000 or

even “something more,” the jury awarded only $2943.60.

       It is also important to our analysis that McAfee strongly

advocated    for       a    punitive    damages    award.         At    trial,     McAfee’s

                                             26
lawyer supported the effort by stressing that “deprivation of

[her] liberty” calls for “some punishment upon the wrongdoer.”

J.A. 338–39 (emphasis added).                     And the jury fully understood

that it could award punitive damages, for both punishment and

deterrence.        See J.A. 355–56.           But, as Justice Powell explained

in a § 1988 setting, “[w]here recovery of private damages is the

purpose     of    a    civil    rights     litigation,         a    district    court,       in

fixing fees, is obligated to give primary consideration to the

amount of damages awarded as compared to the amount sought.”

Rivera, 477 U.S. at 585 (Powell, J., concurring).                              Put simply,

the jury verdict was puritanically modest, and the attorney’s

fee award fails to reflect that reality.

                                             b.

      In justifying its award of attorney’s fees, the Opinion

accorded great weight to the deterrent effect of the judgment

and   the   verdict’s         reaffirmation        of   McAfee’s       Fourth    Amendment

rights.     See McAfee, 906 F. Supp. 2d at 505.                        According to the

Opinion,         the     verdict      “vindicated          important           civil        and

constitutional rights that cannot be valued solely in monetary

terms.”     Id. at 503 (quoting Rivera, 477 U.S. at 574).                              In so

ruling,     the       court    explained     that       “the       hours    expended       were

reasonable       and    necessary     to     vindicate,        for    McAfee    and    other

citizens    of     Virginia,      a   most    important        right       secured    by    the

Fourth Amendment of the United States Constitution.”                           Id.

                                             27
      The   jury’s       forbearance      of    a     punitive        damages     award,

however, reveals that deterrence and vindication may not be so

important here.         The point of punitive relief is to “punish what

has occurred and to deter its repetition.”                     Pac. Mut. Life Ins.

Co. v. Haslip, 499 U.S. 1, 21 (1991).                    Because the jury did not

approve punitive damages, the court’s reliance on deterrence and

vindication        in    its     calculation        of     McAfee’s      success       is

substantially       undermined. 10        Cf.       Rivera,     477    U.S.     at   595

(Rehnquist, J., dissenting) (“In short, this case shares none of

the special aspects of certain civil rights litigation [that]

would justify an award of attorney’s fees totally divorced from

the amount of damages awarded by the jury.”).

      The   Supreme      Court    has    rejected        the   proposition      that   a

§ 1988 fee award must invariably be proportionate to the amount

of   damages   a    civil      rights   plaintiff        actually     recovers.      See

Rivera, 477 U.S. at 574.                In Rivera, the Court affirmed an

attorney’s fee award of $245,456, which was slightly in excess

      10
        In Lewis v. Kendrick, 944 F.2d 949 (1st Cir. 1991), the
plaintiff sought $300,000 in damages and only recovered $1000.
Id. at 951.     The plaintiff initially requested $132,778 in
attorney’s fees, id. at 951 n.1, of which the district court
awarded $49,685.90. Id. at 951. The court of appeals rejected
the fee award, concluding that “[t]o turn a single wrongful
arrest into a half year’s work, and seek payment therefor, with
costs, amounting to 140 times the worth of the injury, is, to
use a benign word, inexcusable.”       Id. at 956.    The Court
conceded, however, that “had there been punitive damages found,”
attorney’s fees “would have been another matter.” Id. at 954.



                                          28
of    seven    times      the    plaintiff’s              recovery      of    compensatory      and

punitive damages, amounting to $33,350.                               See id. at 565-67.         In

this        case,     however,            we        cannot       ignore       the    pronounced

disproportionality between the verdict for less than $3000, and

the fee award more than 100 times that amount.                                Such a disparity

may    well     be    unprecedented             in        this   Circuit,      notwithstanding

Mercer, which affirmed an award of attorney’s fees amounting to

almost $350,000 on a verdict for nominal compensatory damages of

just    $1.         The   plaintiff            in    Mercer,     though,       was   also    found

entitled to $2,000,000 in punitive damages, see 401 F.3d at 202,

rendering the fee award a fraction — not a multiple — of the

damages obtained. 11

       Although       a   substantial               disproportionality          between     a   fee

award and a verdict, standing alone, may not justify a reduction

in    attorney’s       fees,     a    lack          of    litigation     success     will.       In

short, the limited success achieved by McAfee — reflected by the

jury’s       decision      not       to    award          anything      for    deprivation      of

liberty, great inconvenience, great insult and humiliation, and

mental       anguish,      or    make          an        award   of    punitive      damages     —

undermines the attorney’s fee award being appealed.


       11
       The punitive damages award in Mercer was later vacated on
the basis of Barnes v. Gorman, 537 U.S. 181 (2002), because
punitive damages are not legally available for private actions
under Title IX. Mercer, 401 F.3d at 202.



                                                     29
                                          D.

       Because the district court overstated McAfee’s degree of

success, it erred in not making an attorney’s fee award that

would properly reflect her success in this case.                           Under such

circumstances, we typically would remand this case for further

work   by   the    district     court    and    the    lawyers.       We   have   also

recognized,       however,      that    “[a]    request    for    attorney’s      fees

should not result in a ‘second major litigation.’”                          Rum Creek

Coal Sales, Inc. v. Caperton, 31 F.3d 169, 181 (4th Cir. 1994)

(citing Hensley, 461 U.S. at 437 n.12).                        Consistent with Rum

Creek, and to avoid further expense and the nonessential use of

judicial resources associated with remand proceedings and other

appeals, we are satisfied to vacate the attorney’s fee award and

direct that it be reduced by approximately two-thirds, that is,

to $100,000, exclusive of costs.                 See id. (modifying award of

attorney’s    fees      “[t]o    avoid   further      litigation      expenses    that

would follow a remand and the risk of yet a fourth appeal”).



                                         III.

       Pursuant    to    the    foregoing,      we    affirm    the   judgment    with

respect to the verdict, vacate the attorney’s fee award, and




                                          30
direct that an attorney’s fee award of $100,000, exclusive of

costs, be entered by the district court on remand.

                                             No. 13-1356 AFFIRMED
                                             No. 13-1088 AFFIRMED
                                          No. 12-2481 VACATED AND
                                       REMANDED WITH INSTRUCTIONS




                               31
