                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 12-2375


MELANIE PITROLO,

                Plaintiff – Appellant,

          v.

COUNTY OF BUNCOMBE, NC; BRITT LOVIN; DEAN KAHL; LOYD KIRK;
VONNA CLONINGER; WESTERN NORTH CAROLINA REGIONAL AIR QUALITY
AGENCY BOARD OF DIRECTORS; WESTERN NORTH CAROLINA REGIONAL
AIR QUALITY AGENCY,

                Defendants - Appellees.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:06-cv-00199-MR-DLH)


Submitted:   September 12, 2014           Decided:   October 20, 2014


Before SHEDD and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Dismissed in part and affirmed in part by unpublished per curiam
opinion.


Michael G. Wimer, WIMER & ASSOCIATES, PC, Asheville, North
Carolina, for Appellant.    Thomas J. Doughton, Amy L. Rich,
DOUGHTON RICH BLANCATO PLLC, Winston-Salem, North Carolina, for
Appellees.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              In this, Melanie Pitrolo’s (“Appellant”) third appeal,

we are faced with multiple assignments of error.                         Following a

favorable verdict on her Title VII gender discrimination claim,

Appellant moved the district court for attorney’s fees, costs,

and declaratory relief, all of which the district court denied.

Soon afterward, Appellant filed a motion demanding the district

court judge recuse himself.             One month later, she filed a motion

to vacate all orders the district court judge had entered while

he   was     allegedly     disqualified.            While    these      motions    were

pending, Appellant filed her Third Notice of Appeal. 1                      Appellant

then submitted a supplemental motion to vacate, alleging the

district      court    relied    upon   confidential        information      obtained

during      settlement    mediation      in   its    order    denying      attorney’s

fees.       After the district court denied Appellant’s motions for

recusal and vacatur, Appellant filed an Amended Third Notice of

Appeal.

              Appellant     claims      the    district       court      abused     its

discretion      both     when    it   denied    her     post-trial       motion    for

declaratory     relief     and   attorney’s     fees,       and   her    motions    for

        1
       We considered the issues presented in Appellant’s First
Notice of Appeal in Pitrolo v. Cnty. of Buncombe, N.C., No. 07-
2145, 2009 WL 1010634 (4th Cir. Mar. 11, 2009), and her Second
Notice of Appeal in Pitrolo v. Cnty. of Buncombe, N.C., 407 Fed.
App’x 657 (4th Cir. 2011).



                                          2
recusal and vacatur.          Because we lack appellate jurisdiction to

review the district court’s denial of Appellant’s motions for

recusal and vacatur, we dismiss those assignments of error.                            We

affirm the district court’s denial of Appellant’s motion for

attorney’s      fees    and   declaratory       relief,     albeit    on    different

grounds than those upon which the district court relied.                            MM ex

rel. DM v. Sch. Dist. of Greenville Cnty., 303 F.3d 523, 536

(4th.    Cir.   2002)     (“[W]e    are   entitled     to    affirm      the   court’s

judgment on alternate grounds, if such grounds are apparent from

the record.”).         Applying the factors set forth in Aetna Casualty

& Surety Co. v. Ind-Com Electric Co., 139 F.3d 419, 421-23 (4th

Cir.    1998)   (per     curiam),    we   conclude     that      Appellant     is     not

entitled to declaratory relief because the judgment she sought

would neither clarify any issue of law in which the forum state

or the federal government has an interest, nor provide relief

from uncertainty giving rise to the proceedings.                         Finally, we

affirm the district court’s denial of attorney’s fees, because

the factors set forth in Mercer v. Duke University, 401 F.3d

199, 204-09 (4th Cir. 2005), militate against a fee award in

this case.

                                          I.

            The    facts      underlying       this   appeal      have     been      well

articulated by the district court.                    See Pitrolo v. Cnty. of

Buncombe,    N.C.,      No.   1:06-cv-00199,      2012      WL   4511173,      at    *1-2

                                          3
(W.D.N.C. Oct. 1, 2012) (“October 1, 2012 Order”) (J.A. 2 155-59).

Therefore, we recite the facts again here only to the extent

they are relevant to the instant appeal.

                                       A.

            On May 26, 2006, Appellant filed suit in the Superior

Court of Buncombe County, North Carolina pursuant to Title VII

of the Civil Rights Act, 42 U.S.C. § 2000e, against the County

of Buncombe, North Carolina; the Western North Carolina Regional

Air   Quality    Agency   (“the      Agency”);     the        Agency’s   Board    of

Directors,      and   members   of    the     Board      in     their    individual

capacities (collectively, “Appellees”).                  Appellant claimed the

Agency violated 42 U.S.C. § 2000e-2(m) when it considered her

gender as a motivating factor in its decision to deny her a

promotion to Interim Director of the Board. 3                  In her prayer for

relief, Appellant requested “actual damages, liquidated damages,

and punitive damages, together with the costs of the litigation,

including    reasonable   attorney’s        fees   and    expenses,”      and    “all


      2
       Citations to the “J.A.” and the “Supp. J.A.” refer to the
Joint Appendix and Supplemental Joint Appendix filed by the
parties in this appeal.
      3
       Appellant also claimed Appellees retaliated against her in
violation of Title VII; abridged her right to free speech in
violation of 42 U.S.C. § 1983 and the federal and North Carolina
Constitution; violated the Equal Pay Act, 29 U.S.C. § 206;
committed slander per se; and breached an implied contract with
Appellant. See Supp. J.A. 8-15.



                                       4
other relief, whether legal or equitable, to which she may be

entitled.”      Supp. J.A. at 15.             However, Appellant did not make

any legal or factual argument in support of declaratory relief

either before or during trial.                 Appellees removed the case to

the District Court for the Western District of North Carolina on

June 22, 2006.

            On March 7, 2007, Appellees moved for summary judgment

as to all of Appellant’s claims.                  Defs.’ Mot. for Summ. J.,

Pitrolo v. Cnty. of Buncombe, N.C., No. 1:06-cv-00199 (W.D.N.C.

June 22, 2006; filed Mar. 7, 2007), ECF No. 19.                         The district

court granted summary judgment on October 10, 2007, dismissing

Appellant’s      entire       case.       The     district      court       dismissed

Appellant’s gender discrimination claim in particular because it

concluded      the    principal      evidence    supporting      this     claim    was

inadmissible hearsay, and Appellant offered no other direct or

circumstantial evidence of gender discrimination.                     Mem. & Order

at 14-16, Pitrolo v. Cnty. of Buncombe N.C., No. 1:06-cv-00199

(W.D.N.C.      June   22,    2006;    filed    Oct.   10,    2007),   ECF    No.   47.

Appellant appealed the order granting summary judgment to this

court,   but    only    to   the     extent    that   it    dismissed    her   gender

discrimination and retaliation claims.                     On March 11, 2009, we

vacated the district court’s order of summary judgment as to

Appellant’s gender discrimination claim and remanded for trial,

but affirmed the district court’s grant of summary judgment on

                                          5
Appellant’s        retaliation       claim.        See    Pitrolo        v.    Cnty.    of

Buncombe, N.C., No. 07-2145, 2009 WL 1010634, at *4 (4th Cir.

Mar. 11, 2009) (“Pitrolo I”).

             Following trial on July 22, 2009, the jury returned a

verdict     finding        Appellees    unlawfully        considered          Appellant’s

gender as a motivating factor in the decision not to promote

her, but Appellees would have denied Appellant the promotion

notwithstanding her gender.                 Jury Verdict, Pitrolo v. Cnty. of

Buncombe, No. 1:06-cv-00199 (W.D.N.C. June 22, 2006; filed July

22, 2009), ECF No. 82.           Therefore, Appellant was not awarded any

damages.

             On August 7, 2009, Appellant moved for attorney’s fees

and   declaratory          relief,     specifically,           a     declaration       that

Appellees discriminated against her in violation of Title VII,

and   to   have     this    declaration       placed     in    her    personnel    file.

Rather     than    rule    on   this   motion,     the    district      court     entered

judgment      as     a     matter      of    law    in        favor    of      Appellees,

notwithstanding the jury’s verdict.                 Am. J. at 1-2, Pitrolo v.

Cnty. of Buncombe, N.C., No. 1:06-cv-00199 (W.D.N.C. June 22,

2006; filed Aug. 20, 2009), ECF No. 95.                       Appellant successfully

appealed that judgment to this court, and we held that as the

prevailing        party,     Appellant       may   “seek        declaratory       relief,

injunctive relief, and attorney’s fees and costs demonstrated to

be directly attributable to her mixed-motive [Title VII] claim.”

                                             6
Pitrolo v. Cnty. of Buncombe, N.C., 407 Fed. App’x 657, 659 (4th

Cir. 2011) (“Pitrolo II”) (internal quotation marks omitted).

In    Pitrolo     II,     we    did    not,    however,    consider        whether   the

district court should grant such relief.

                                              B.

              On September 15, 2009, this case was reassigned to

district        court      Judge       Reidinger      upon        Judge     Thornburg’s

retirement.        After requesting supplemental briefs on the issue

of attorney’s fees and declaratory relief, the district court

denied Appellant’s motion for declaratory relief in its October

1, 2012 order (the “October 1, 2012 Order”), for two reasons.

First,     the    district      court    concluded     that       Appellant    neither

requested declaratory relief nor referenced the statutory source

for    that      relief    in    her     complaint.          In    support    of     this

conclusion, the district court cited one unpublished case from

the Middle District of Florida, and Wright & Miller’s Federal

Practice & Procedure. 4          Second, the district court ruled that “in

any   event”      it    would   deny    Appellant’s       motion     for    declaratory

relief, explaining,




       4
       See 4 C. Wright & A. Miller, Federal Practice & Procedure
§§ 1238, 1256 (3d ed. 1998) (“[I]t is necessary for the
plaintiff to . . . provide a short and plain statement of the
claim on which relief may be granted, and include the demand for
[declaratory] relief.”).



                                              7
          [a]lthough   relief    in  the    form    of  a
          declaratory judgment may be given pursuant
          to § 2000e-5(g)(2)(B) in the absence of an
          award of damages, such relief is available
          only when the plaintiff has succeeded in
          serving       an        important        public
          purpose . . . Gudenkauf       v.       Stauffer
          Communications, Inc., 158 F.3d 1074, 1080-81
          (10th Cir. 1998) . . . . [Appellant] has not
          been in the [Appellees’] employment since
          2005 [and therefore] a declaratory judgment
          would do little more than simply affirm the
          jury’s verdict. [Marsal v. East Carolina
          University,   No.   4:09–cv–126–fl,    2012  WL
          3283435, at *9 (E.D.N.C. Aug. 8, 2012)].

October   1,   2012   Order,   2012       WL   4511173,   at   *3    (internal

quotation marks omitted).

          Based on its application of the factors set forth in

Mercer v. Duke University, 401 F.3d 199, 204-09 (4th Cir. 2005),

in the October 1, 2012 Order the district court also declined to

award attorney’s fees, reasoning, (1) while Appellant’s “primary

goal was an award of damages . . . the jury awarded no damages,”

which indicated her “victory [was] in fact purely technical”;

(2) Appellant’s case was not “legally significant to the law of

gender discrimination”; and (3) Appellant’s rejection of several

reasonable settlement offers, coupled with the fact her case

would have a minimal impact “on the development of the law and

on society,” showed the litigation lacked a public purpose and

only served to vindicate Appellant’s own rights.                    October 1,

2012 Order, 2012 WL 4511173, at *4-7.



                                      8
               On October 19, 2012, three years and 35 days after

Judge Reidinger was assigned to this case -- but only 18 days

after he denied Appellant’s motion for declaratory relief and

attorney’s         fees     --   Appellant    filed       a    motion    demanding     Judge

Reidinger recuse himself (“Motion to Recuse”).                              Before Judge

Reidinger ruled on Appellant’s Motion to Recuse, Appellant filed

her Third Notice of Appeal on October 31, 2012, claiming the

district court abused its discretion when it denied her motion

for declaratory relief and attorney’s fees in the October 1,

2012    Order.        Then,      on   November      21,       2012,    Appellant    filed     a

motion pursuant to Federal Rule of Civil Procedure 60(b)(6) to

vacate    Judge       Reidinger’s       orders,      particularly         the   October      1,

2012,        Order     because        he     “entered          [these]     orders      while

disqualified pursuant to 28 U.S.C. section 455(b)” (the “First

Motion       to    Vacate”).          J.A.    233.        Appellant        also     filed     a

supplemental motion to vacate on November 21, 2012, claiming for

the first time that Appellees disclosed confidential information

obtained during settlement mediation proceedings in violation of

Rule    33    of     the    Fourth    Circuit       Rules      of     Procedure,    and     the

district      court        improperly      relied    on   this        information    in     its

October 1, 2012 Order (the “Supplemental Motion to Vacate”).

See id. at 264-65.

               The district court denied the Motion to Recuse, the

First Motion to Vacate, and the Supplemental Motion to Vacate in

                                              9
an order dated February 13, 2013 (“February 13, 2013 Order”).

Subsequently, Appellant filed her Amended Third Notice of Appeal

to challenge the February 13, 2013 Order.

            In the instant appeal, Appellant asks us to address

the assignments of error listed in both the Third Notice of

Appeal    and    Amended   Third   Notice    of   Appeal,    which   claim   the

district court abused its discretion when it denied each of her

post-trial motions in its October 1, 2012 and February 13, 2013

Orders.

                                     II.
                                      A.

   February 13, 2013 Order; Motion to Recuse, First Motion to
            Vacate and Supplemental Motion to Vacate

            As a court of limited jurisdiction, we must determine

whether we possess jurisdiction to consider any of Appellant’s

arguments.      See United States v. Hadden, 475 F.3d 652, 659 (4th

Cir. 2007); Bender v. Williamsport Area Sch. Dist., 475 U.S.

534, 541 (1986) (“[E]very federal appellate court has a special

obligation to satisfy itself . . . of its own jurisdiction . . .

even [if] the parties are prepared to concede it.” (internal

quotation       marks   omitted)).         Therefore,   we     first   address

Appellant’s claim that the district court abused its discretion

when it denied her Motion to Recuse, First Motion to Vacate, and

Supplemental Motion to Vacate in the February 13, 2013 Order.



                                      10
              A notice of appeal “must be filed with the district

clerk    within    30    days     after    entry     of    the     judgment   or   order

appealed from.”          Fed. R. App. P. 4(a)(1)(A).                    Ordinarily, a

notice of appeal can only secure appellate review of specific

orders that (1) have already been entered or announced at the

time of the notice; and (2) are listed in the notice of appeal.

See Fed. R. App. P. 3(c)(1)(B), 4(a)(2).                     If the party files a

premature notice of appeal, subsequent orders must be appealed

in accordance with the Rules of Appellate Procedure.                          See Nolan

v. U.S. Dep’t of Justice, 973 F.2d 843, 846 (10th Cir. 1992).

“The effect of a notice of appeal is determined at the time it

is filed.”        Trinidad Corp. v. Maru, 781 F.2d 1360, 1362 (9th

Cir. 1986).        A party may only amend its notice of appeal to

include (1) any order entered by the district court within 30

days of the order prompting the original notice of appeal; or

(2)     an   order      denying     a     specific        motion    listed    in    Rule

4(a)(4)(A), the filing of which tolls the appeals period, within

30 days of an order disposing of that motion.                        See Fed. R. App.

P. 4(a)(4)(A), (B)(ii).

              A motion pursuant to Federal Rule of Civil Procedure

60(b)(6) tolls the appeals period if the motion “is filed no

later than 28 days after the judgment is entered.”                       Fed. R. App.

P. 4(a)(4)(A)(vi).         If a party fails to file a 60(b) motion in

the   trial    court     within     28    days   of   the     order    meriting     such

                                           11
relief, the appeals period is not tolled, and the appeal must be

dismissed as untimely as to the underlying order.                    See id.; see

also Shields v. Ill. Dep’t of Corrections, 746 F.3d 782, 799

(7th    Cir.    2014)   (dismissing     Appellant’s      appeal      for   lack   of

jurisdiction because he “filed his Rule 60 motion 30 days after

the    district    court   entered     its    final    judgment”);     Johnson     v.

Univ. of Rochester Med. Ctr., 642 F.3d 121, 124 (2d Cir. 2011)

(ruling the court “lacks appellate jurisdiction” over an order

denying    Appellant’s     Rule    60(b)      motion   because    he    filed     the

original motion “three days after the twenty-eight day tolling

deadline expired”).

                                         1.

               We cannot review the February 13, 2013 Order insofar

as it denied Appellant’s Motion to Recuse.                Appellant originally

filed her Third Notice of Appeal to contest the October 1, 2012

Order on October 31, 2012.              She then attempted to amend her

Third   Notice     of   Appeal    to   add    the   February   13,     2013   Order.

However, because the district court entered the February 13,

2013 Order more than 30 days after the October 1, 2012 Order,

Appellant could not amend her original notice to include the

denial of her Motion to Recuse, but was instead required to file

a separate notice of appeal.                 See Fed. R. App. P. 3(a)(1-2),

4(a)(1)(A).       This she failed to do.            And, Appellant’s Motion to

Recuse pursuant to 28 U.S.C. § 455(b)(2) cannot be saved by

                                         12
tolling because it is not a motion listed in Rule 4(a)(4)(A),

for which the appeals period may be tolled.                          Therefore, we lack

jurisdiction     to    consider       the   district       court’s         denial      of   the

Motion to Vacate.

              We also cannot address Appellant’s arguments regarding

the   First     Motion        to   Vacate,        because           it     is    inseparably

intertwined     with     Appellant’s        Motion        to   Recuse.            We     cannot

consider whether the district court abused its discretion when

it denied the First Motion to Vacate without, at the same time,

considering whether Judge Reidinger should have recused himself.

We also lack jurisdiction over this issue because Appellant’s

First Motion to Vacate was untimely as to the underlying Order.

This is because Appellant filed her first 60(b)(6) motion 42

days after the October 1, 2012 Order, and she did not file a

separate notice of appeal regarding the issues complained of in

her First Motion to Vacate.

                                            2.

              Likewise, we lack jurisdiction to consider whether the

district    court     erred    when    it    denied       Appellant’s           Supplemental

Motion   to    Vacate     because     this       motion    was       not    timely       filed.

Appellant filed her Supplemental Motion to Vacate 112 days after

the district      court    entered      the      October       1,    2012       Order,    which

allegedly     contained    confidential           information.             Therefore,       her



                                            13
attempt to amend her Third Notice of Appeal to challenge the

February 13, 2013 Order was ineffective.

             Compliance with the Rules of Appellate Procedure is

“mandatory and jurisdictional,” Browder v. Director, Department

of Corrections of Illinois, 434 U.S. 257, 264 (1978) (internal

quotation marks omitted), and Appellant has clearly failed to

follow    them.     Accordingly,       we     lack    jurisdiction      to   consider

Appellant’s arguments relating to the February 13, 2013 Order.

                                         B.

         October 12, 2012 Order; Motion for Declaratory Relief

             We   review     decisions      to   grant      or   deny    declaratory

relief for an abuse of discretion.                   See Wilton v. Seven Falls

Co., 515 U.S. 277, 289-90 (1995).

             Appellant offers two reasons why the district court

abused its discretion when it denied her motion for declaratory

relief.     First, she posits that Rule 54(c) of the Federal Rules

of Civil Procedure permits a district court to award any relief

to which the prevailing party may be entitled, regardless of

whether the relief was requested in the complaint.                      Second, she

argues    that    the    declaratory   relief        she   sought   would    serve    a

public purpose, and would do more than simply restate the jury

verdict.

            We    hold    that   the    district       court     was    required     to

entertain whether to award Appellant declaratory relief even if

                                         14
Appellant did not request this relief in her complaint or make

any    factual      or    legal     argument        in    support      of     a    declaratory

judgment.        We      also    hold    the     district        court      relied         upon    an

incorrect legal standard to guide its discretion when it decided

whether        to        award      Appellant’s             requested             declaration.

Nonetheless,        applying       the    correct        standard      to     this     case,       we

affirm the district court’s denial of declaratory relief.

               Title     VII      prevents       employers         from       discriminating

against “any individual because of race, color, religion, sex or

national origin.”            42 U.S.C. § 2000e-2(a)(1).

               Plaintiffs may prevail if they demonstrate that “race,

color, religion, sex, or national origin was a motivating factor

for    any   employment         practice,       even      though      other       factors        also

motivated the practice.”                 42 U.S.C. § 2000e-2(m).                   However, if

the employer demonstrates it “would have taken the same action

in the absence of the impermissible motivating factor,” Title

VII    restricts       the      plaintiff’s      remedies;         “the     court . . . may

grant declaratory relief . . . and attorney’s fees and costs,”

but “shall not award damages.”                       42 U.S.C. § 2000e-5(g)(2)(B)

(emphasis      supplied).           By    including        the     word     “may”          in    this

subsection,         Congress      left    the       decision     of    whether         to       award

declaratory relief to the discretion of the trial judge.                                          See

Sheppard v. Riverview Nursing Ctr., Inc., 88 F.3d 1332, 1335

(4th    Cir.    1996)        (holding     that      the    term     “may”         in   §    2000e-

                                               15
5(g)(2)(B) “make[s] evident” that the relief it provides “is

discretionary        rather      than     mandatory”).               The       Court       has

interpreted      §         2000e-5(g)(2)(B)         as     creating        a     “limited

affirmative defense” that narrows the scope of a plaintiff’s

remedies.       Desert       Palace,    539    U.S.      90,   94   (2003)      (internal

quotation      marks       omitted).          Additionally,         “because         a    case

generally does not become a mixed-motive or pretext case until

after the evidence is developed . . . plaintiffs ordinarily will

not know whether their claim implicates § 2000e-5(g)(2)(B) at

the time of filing suit.”           Sheppard, 88 F.3d at 1336.

                                          1.

            Rule 54(c) of the Federal Rules of Civil Procedure

directs trial courts to “grant the relief to which each party is

entitled, even if the party has not demanded that relief in its

pleadings.”      Fed. R. Civ. P. 54(c).               We have held that district

courts have a “duty to grant whatever relief is appropriate in

the case on the basis of the facts proved” even if the party has

not demanded that relief in its pleadings, and “[t]he pleadings

serve   only    as     a    rough   guide      to   the    nature     of       the       case.”

Robinson v. Lorillard Corp., 444 F.2d 791, 803 (4th Cir. 1971);

see Gilbane Bldg. Co. v. Fed. Reserve Bank of Richmond, 80 F.3d

895, 901 (4th Cir. 1996) (“Rule 54(c) . . . commands that the

trial court shall grant the relief to which the party in whose

favor it is rendered is entitled, even if the party has not

                                          16
demanded        such     relief      in   the      party’s        pleadings.”     (internal

quotation marks omitted)); see also New Amsterdam Cas. Co. v.

Waller,      323       F.2d    20,    24-25      (4th   Cir.        1963)    (“Under     the

[F.R.C.P.] . . . a plaintiff in his complaint is required only

to set forth a short and plain statement of the claim.                             He need

not set forth any theory or demand any particular relief for the

court will award appropriate relief if the plaintiff is entitled

to    it     upon       any    theory.”       (internal       quotations         omitted)).

However, “[a] party will not be given relief not specified in

its complaint where the failure to ask for particular relief so

prejudiced the opposing party that it would be unjust to grant

such relief.”            Atl. Purchasers, Inc. v. Aircraft Sales, Inc.,

705   F.2d      712,    716    (4th   Cir.      1983)   (internal       quotation      marks

omitted).

                In the context of Title VII, if a plaintiff prevails

on their 42 U.S.C. § 2000e-2(m) claim but is restricted in their

remedy     to    a     declaration,       injunction,        or    award    of   attorney’s

fees, as was Appellant in this case, we recognize that the jury

made all factual conclusions necessary for the court to award

declaratory relief.              Cf. Mercer, 401 F.3d at 207 (“The jury’s

verdict, of course, does represent a factual determination that

Duke was legally responsible for violating Mercer’s rights under

Title IX.”).           Therefore, in that circumstance § 2000e-5(g)(2)(B)

and   Rule       54(c)        together     obligate      the        district     court   to

                                              17
determine,       in    its    discretion,          if      declaratory      relief    is     an

appropriate remedy, provided that doing so would not prejudice

the   defendant.            See     Atl.    Purchasers,       705    F.2d    at   716;      cf.

Mercer, 401 F.3d at 207.

            In    her       complaint,       Appellant        claimed    entitlement         to

relief pursuant to § 2000e-2(m).                         The jury rendered findings,

pursuant to § 2000e-5(g)(2)(B), that Appellant’s gender was a

motivating   factor          in     Appellees’       employment      action,      but      that

Appellees    would           have     taken        the     same     action     regardless.

Appellant did not request declaratory relief in her complaint,

raising the issue for the first time after trial.

            This case is quite similar to Albemarle Paper Co. v.

Moody, 422 U.S. 405 (1974), in which appellants brought their

claim under § 2000e et seq and requested back pay, for the first

time, in a post-trial motion.                      See id. at 410.           The district

court   denied        the    motion    in     part       because    appellants       had    not

requested back pay in their complaint.                             See id.        The Court

dismissed this reasoning, citing Rule 54(c).                             See id. at 424

(noting, “[i]t is true that Title VII contains no legal bar to

raising   back        pay    claims        after     the    complaint . . . has            been

filed, or indeed after a trial on that complaint has been had,”

and Rule 54(c) requires district courts to grant all relief to

which a plaintiff is entitled, absent substantial prejudice).



                                              18
             In this case, Appellant filed her original motion for

declaratory relief on August 7, 2009.                  By virtue of the district

court’s order permitting the parties to supplement their filings

on this issue, Appellees had over a year and a half to consider

their response to Appellant’s motion.                  As a result, we conclude

there was no prejudice to Appellees, even despite Appellant’s

failure     to    formally      request     declaratory       relief   until     after

trial.      Therefore,       the   district      court    erred   when    it    denied

Appellant declaratory relief based on the fact that Appellant

failed to specifically request such relief prior to trial or to

make any legal or factual argument in favor of a declaratory

judgment.

                                            2.

            While § 2000e-5(g)(2)(B)(i) places the power to award

declaratory      relief    in    the   district      courts’    discretion,      “such

discretionary choices are not left to a court’s inclination, but

to its judgment; and its judgment is to be guided by sound legal

principles.”        Albermarle Paper Co., 422 U.S. at 416 (internal

quotation       marks    omitted).        “We    have . . . enumerated         several

factors    to    guide    district     courts     in    their   exercise    of   this

discretion.”       Aetna Cas. & Sur. Co. v. Ind-Com Elec. Co., 139

F.3d     419,    421-22     (4th     Cir.    1998)     (per     curiam)    (internal

quotation marks omitted).



                                            19
                  In Aetna, we held that, when deciding whether to grant

declaratory relief pursuant to the Declaratory Judgment Act, 28

U.S.C. § 2201, 5 a district court should consider several factors.

See Aetna, 139 F.3d at 422-24.                 Among those factors relevant to

this       case    are    whether    awarding       declaratory      relief   (1)    will

clarify important issues of law in which the forum state has an

interest;         (2)    will    “clarify    the    legal    relations    between     the

parties”      or     afford      “relief    from    uncertainty,      insecurity,     and

controversy giving rise to the proceeding”; and (3) “whether the

declaratory judgment action is being used merely as a device for

procedural fencing.” 6              Id. (internal quotation marks omitted);

see also Am. Cas. Co. of Reading, Pa. v. Howard, 173 F.2d 924,

927 (4th Cir. 1949) (“We think [judicial discretion whether to

grant       declaratory         relief]    should    be     liberally    exercised    to

effectuate the purposes of the [Declaratory Judgment Act] and

thereby       afford      relief     from    uncertainty       and   insecurity      with

respect to rights, status and other legal relations.”); see also

Edwin Bouchard, Declaratory Judgments 299 (2d ed. 1941) (“The

       5
       “[A]ny court of the United States, upon the filing of an
appropriate pleading, may declare the rights and other legal
relations of any interested party seeking such declaration.” 28
U.S.C. § 2201 (emphasis supplied).
       6
       Fencing includes “provid[ing] another forum in a race for
res judicata[,] . . . achiev[ing] a federal hearing in a case
otherwise not removable,” and “forum shopping.” Aetna, 139 F.3d
at 422, 424 (internal quotations omitted).



                                             20
two principal criteria guiding the policy in favor of rendering

declaratory judgments are (1) when the judgment will serve a

useful purpose in clarifying . . . the legal relations at issue

and (2) when it will . . . afford relief from the uncertainty,

insecurity, and controversy giving rise to the proceeding.”).

               Citing     a   Tenth       Circuit       opinion,     the   district      court

refused to grant Appellant the declaratory relief she requested,

reasoning that declaratory relief pursuant to § 2000e-5(g)(2)(B)

“is available only when the plaintiff has succeeded in serving

an important public purpose.”                      October 1, 2012 Order, 2012 WL

4511173,       at    *3   (J.A.         162-63)    (citing        Gudenkauf     v.    Stauffer

Commc’ns, Inc., 158 F.3d 1074, 1080-81 (10th Cir. 1998)).                                    The

district court reasoned that, because “the Plaintiff has not

been in the Defendants’ employment since 2005, a declaratory

judgment would ‘do[] little more than simply affirm the jury’s

verdict.’”          Id. at *3.            However, these conclusions flow from

inapplicable legal standards.

               The district court’s reliance on authority from the

Tenth Circuit was misplaced.                    The Gudenkauf case did not address

whether    and       when     a    district       court     should     order    declaratory

relief    --    in    fact,       it     does     not   discuss      declaratory       relief;

instead,   that       case        was    focused       on   the    issue   of   when    it    is

appropriate to award attorney’s fees.                             Gudenkauf, 158 F.3d at

1080     (“Justice          O’Connor’s            concurring        opinion      in     Farrar

                                                  21
recognizes that recovery [of attorney’s fees] may be had even

where actual damages are minimal or nonexistent if plaintiff

succeeds in serving an important public purpose.”).              It is well-

established law that whether a lawsuit in toto serves “important

public    purpose”    is   only   relevant   to    a    district       courts’

determination of whether to award attorney’s fees via § 2000e-

5(g)(2)(B)(i). 7     See Sheppard, 88 F.3d at 1336 (district courts

should consider “whether the public purposes served by resolving

the dispute justifies the recovery of fees.” (citing Farrar v.

Hobby, 506 U.S. 103, 121-22 (1992) (O’Connor, J., concurring));

see also Mercer, 401 F.3d at 204 (“[W]hen determining whether

attorney’s fees are warranted in a nominal-damages case, courts

should consider ‘the extent of relief, the significance of the

legal issue on which the plaintiff prevailed, and the public

purpose served’ by the litigation.” (quoting Farrar, 506 U.S.

103 at 122 (O’Connor, J., concurring)).       Whether the declaratory

relief requested restates the verdict is primarily relevant to

the   district     courts’   determination    of       whether    to     award

attorney’s fees, and is not directly related to the question of

      7
        Gudenkauf also expressly “disagree[d] . . . with the
Fourth Circuit Court of Appeals . . . that Farrar should be
applied in a mixed motive case to deny all but a nominal fee
recovery simply because a mixed motive plaintiff does not
recover money damages . . . . See Sheppard v. Riverview Nursing
Center, Inc., 88 F.3d 1332 (4th [Cir. 1996]).”   Gudenkauf, 158
F.3d at 1080.



                                    22
whether       an        award        of        declaratory       relief      is     warranted.

See    Sheppard,           88   F.3d      at    1336-38    (discussing       the    extent     of

declaratory relief sought as a factor in the decision of whether

to award attorney’s fees).

              Instead, the Aetna factors serve as a useful guide for

situations, such as this, where the district court is tasked

with    making         a    discretionary          determination        of   whether      it   is

appropriate to award declaratory relief pursuant to § 2000e-

5(g)(2)(B)(i).                  We   are        aware     that    the     district      courts’

assessment         of       whether       to      award    declaratory        relief      in   a

particular case must be “measured against the purposes which

inform Title VII,” namely “to achieve equality of employment

opportunities and remove barriers that have operated in the past

to    favor    an          identifiable         group . . . over        other      employees.”

Albemarle Paper Co., 422 U.S. at 417.                            We are also mindful that

we “must be careful not to apply rules applicable under one

statute   to       a       different      statute       without     careful       and   critical

examination.”              Fed. Express Corp. v. Holowecki, 552 U.S. 389,

393 (2008).            Indeed, the Aetna factors are consistent with the

purposes of Title VII and are more likely to generate consistent

outcomes than the “important public purpose” standard employed

by the district court.

              Applying the Aetna factors to the case now before us,

we conclude they weigh against a declaratory judgment.                                    First,

                                                   23
the   declaratory    relief   Appellant   sought   would   do     nothing   to

clarify any issue of law in which the forum state, or indeed the

federal government, has an interest.            While Appellant sought a

declaration   that    effectively    restates   the   verdict     –-   a   fact

which, in and of itself, is not determinative to our analysis –-

we recognize the verdict itself in this case did not represent a

significant development in Title VII such that the law requires

clarification.      For example, this is not a case such as Mercer

where the jury’s verdict represented an evolution in the law.

See, e.g., Mercer, 401 F.3d at 206-07.

           Second, the declaration Appellant requested would not

clarify the post-trial legal rights of the parties and would not

resolve any uncertainties.       In Sheppard, the plaintiff prevailed

on her § 2000e-2(m) gender discrimination claim, but pursuant to

§   2000e-5(g)(2)(B)    the   jury   entered    findings   that    defendant

would have made the same employment decision not withstanding

her gender.   There, the district court entered a declaration as

follows:

           [T]he   Court  hereby   declares   that  the
           plaintiff underwent an unlawful employment
           practice, in that her sex (pregnancy status)
           was a motivating factor in her layoff on
           4/13/92   but   that   other   factors  also
           motivated that layoff and that this judgment
           constitutes the whole of the relief to which
           the plaintiff is entitled, except for costs
           (including attorney’s fees) as therein set
           forth.


                                     24
Order    and    J.,    Sheppard     v.    Riverview     Nursing   Ctr.,    Inc.,   No.

1:93-cv-02663 (D. Md. Sept. 13, 1993; filed Nov. 4, 1994), ECF

No. 36.        This declaration was useful for clarifying the legal

rights of the parties in that case because it explained the

effect of the mixed-motive verdict upon the scope of remedies

available to the plaintiff.                 Here, the declaration Appellant

requested –- “that defendant’s failure to promote her to the

position of Interim Director of the Agency was motivated by her

gender in violation of Title VII” -- would not have a similar

effect.        J.A. 22.       Such a declaration would not resolve any

outstanding uncertainties, but would simply reiterate the jury’s

verdict that Appellees are liable for violating Title VII.                          We

are satisfied, based on our analysis of the Aetna factors, that

the district court did not err when it denied Appellant’s motion

for declaratory relief. 8

                                            C.
          October 1, 2012 Order; Motion for Attorney’s Fees

               “[W]e review the district court’s [determinations on]

attorneys’          fees   under    the    abuse      of    discretion     standard.”

Lefemine       v.    Wideman,      758    F.3d   551,      554   (4th    Cir.   2014).

Awarding attorney’s fees through 42 U.S.C. § 2000e-5(g)(2)(B) is

obviously not appropriate when a plaintiff loses its case.                         But
     8
       The third factor -- concern as to procedural fencing -- is
not applicable to this case.



                                            25
they are similarly inappropriate “when the plaintiff’s success

is purely technical or de minimis.”                  Farrar, 506 U.S. at 117

(1992) (O’Connor, J., concurring).              In such a case, “no fees can

be awarded” because the “plaintiff either has failed to achieve

victory at all, or has obtained only a Pyrrhic victory for which

the reasonable fee is zero.”             Id.; see also Mercer, 401 F.3d at

203 (extending this rationale to Title IX cases); Sheppard, 88

F.3d    at   1336,    1339      (extending    this   rationale     to    Title   VII

cases).      Therefore, when the judgment lacks significant damages

recovery, and yet the plaintiff seeks attorney’s fees, courts

must consider the following factors: (1) the extent of relief

sought compared to the relief obtained; (2) the significance of

the    legal    issues     on   which   the   plaintiff   prevailed;       and   (3)

whether the litigation served a public purpose.                  See Farrar, 506

U.S. at 122 (O’Connor, J., concurring); Mercer, 401 F.3d at 204;

Sheppard, 88 F.3d at 1335-36.

                                         1.

               We   take   into    account    the    extent   of   the    recovery

because “a substantial difference between the judgment recovered

and the recovery sought suggests that the victory is in fact

purely technical.”           Farrar, 506 U.S. at 121; see also Mercer,

401 F.3d at 205 (applying Farrar to Title IX cases).                        Courts

must first identify the “relief sought.”                  In doing so, we are

required to determine the objective “purpose” of the lawsuit.

                                         26
Mercer,    401       F.3d    at   204-06.        If   the    rule      were    otherwise,

plaintiffs that only receive nominal damages (or no damages)

would seek attorney’s fees on the basis that the only relief

they actually wanted was a liability finding or a declaratory

judgment.       See id. at 206.           If the plaintiff only seeks monetary

damages, the purpose of the lawsuit is likely to obtain monetary

damages, and the appropriate comparison is between the amount of

damages sought and the measure of damages awarded.                            “[T]he most

critical factor in determining the reasonableness of a fee award

is the degree of success obtained.”                    Farrar, 506 U.S. at 114

(internal quotation marks omitted).

                                            2.

            When determining whether to award attorney’s fees, we

also measure the legal import of the civil rights claim on which

the plaintiff prevailed.                Farrar, 506 U.S. at 122; Mercer, 401

F.3d at 206.          We have interpreted this factor to require more

than a simple victory on a civil rights claim or a jury verdict

stating the defendant engaged in unlawful discrimination.                             See

Mercer, 401 F.3d at 206-07 (noting “the issue on which Mercer

prevailed       is   an     important     one”).      For   this    factor      to   weigh

heavily in the courts’ determination of whether to enter a fee

award,    the    case       should   be   significant       to   the    body    of   civil

rights law because it is novel, establishes important precedent,

or otherwise advances the law.               See id. at 207.           For example, in

                                            27
Mercer, we found it persuasive that the verdict “gave rise to a

first-of-its-kind         liability       determination,”           namely     that        Title

IX’s contact-sports exemption does not permit collegiate sports

teams to discriminate against women who already play contact

sports.    Id.

                                            3.

            And finally, we consider “whether the public purposes

served by resolving the dispute justifies the recovery of fees.”

Mercer,   401     F.3d    at    207     (internal     quotation          marks      omitted).

“[S]uccess      might    be     considered       [worthy       of   fees]      if     it    also

accomplish[es] some public goal . . . .”                       Sheppard, 88 F.3d at

1336   (internal        quotation       marks    committed).             “Typical          civil

rights    cases”       that    only     serve    to   vindicate          the   plaintiff’s

rights and have no far-reaching effect are generally not worthy

of attorney’s fees.             Mercer, 401 F.3d at 210; accord Pino v.

Locascio, 101 F.3d 235, 239 (2d Cir. 1996) (“The vast majority

of civil rights litigation does not result in ground-breaking

conclusions      of    law,    and      therefore,      will    only      be   appropriate

candidates       for     fee    awards      if    a     plaintiff         recovers         some

significant measure of damages or other meaningful relief.”).

Lastly, “refusing a reasonable offer of settlement promotes few

public interests when the plaintiff ultimately receives a less

favorable    recovery         after     trial”    and    “courts         may   consider        a

plaintiff’s      refusal       of   a   settlement      offer       as   one     of   several

                                            28
proportionality    factors      guiding        their    exercise     of    discretion

under § 2000e-5(g)(2)(B).”         Sheppard, 88 F.3d at 1337.

            This third factor is sometimes discussed in connection

with the second because both share a common core -- a civil

rights    plaintiff’s    case      must        be   somewhat      extraordinary       to

justify an award of attorney’s fees if the jury awarded no or

only nominal damages and the plaintiff failed to request other

relief or obtained none.        See Mercer, 401 F.3d at 207-12 (noting

plaintiff’s failure to request declaratory relief having impact

beyond her case or to obtain monetary damages did not prevent

court from awarding attorney’s fees, because her case “marked a

milestone in the development of the law under Title IX”).

                                          4.

            We are satisfied the district court did not abuse its

discretion when it denied Appellant’s motion for attorney’s fees

because    its   decision    was    supported          by   the    Mercer       factors.

First, while it is obvious from the record that the purpose of

Appellant’s lawsuit was to recover money damages, she received

none.     Appellant did not formally request declaratory relief --

and in fact did not mention declaratory relief at all -- until

after the jury’s verdict. 9        Thus, Appellant’s victory was merely


     9
       Appellant’s      counsel     emphasized         damages     in     his   closing
argument:

(Continued)
                                          29
technical.      Second, with regard to the legal significance of the

issues upon which Appellant prevailed, the district court noted,

“to the extent that Plaintiff may claim success, it was not

material to the public good,” and “this factor does not weigh in

favor    of   attorney’s   fees.”     October     1,    2012   Order,     2012   WL

4511173, at *5-6 (J.A. 168).          The core of Appellant’s case had

little to no precedential value to the body of Title VII case

law.     And third, the district court found “the only goal [of

Appellant’s     case]   was   personal     to   the    Plaintiff   and     to    her

attorney’s desire for an award of counsel fees,” and, therefore,

she failed to “accomplish some public goal other than occupying

the time and energy of counsel, court, and client.”                Id.

       The district court did not abuse its discretion when it

denied    Appellant’s      motion   for    attorney’s      fees.         Appellant



              Another issue you’ll be asked to address is:
              What amount of compensatory damages, if any,
              do you find Melanie Pitrolo should recover?
              And    then  there’s   a   whole   list   of
              instructions that you look at. . . . [The
              list] talks about emotional distress; it
              talks about sort of loss of career path; it
              talks about pecuniary damages. . . . If you
              think she’s entitled to any compensatory
              damages, then you would write a number in
              there.

Tr. of Trial Proceedings Vol. 3 at 557, Pitrolo, 2009 WL 2600906
(W.D.N.C. June 22, 2006; filed Dec. 23, 2009), ECF No. 103.




                                      30
obtained none of the relief she sought in her complaint, and her

case was neither legally significant nor did it serve a public

purpose.

                                        III.

              For   the   foregoing     reasons,    we   dismiss     for   lack   of

jurisdiction        the   assignments    of    error     regarding    Appellant’s

Motion   to    Recuse,     First   Motion      to   Vacate,   and    Supplemental

Motion to Vacate.           We affirm the district court’s denial of

Appellant’s motion for declaratory relief and attorney’s fees.



                                                              DISMISSED IN PART
                                                           AND AFFIRMED IN PART




                                         31
