                                                                               FILED
                            NOT FOR PUBLICATION                                NOV 13 2012

                                                                            MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                           U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


JANET D. LEWIS,                                  Nos. 11-35682 and 11-35727

             Plaintiff-Appellee/                 D.C. No. 3:06-cv-00053-JWS
             Cross-Appellant,

  v.                                             MEMORANDUM*

MICHAEL B. DONLEY, Secretary of the
United States Air Force; UNITED
STATES OF AMERICA,

              Defendants-Appellants/
              Cross-Appellees.



                    Appeal from the United States District Court
                             for the District of Alaska
                    John W. Sedwick, District Judge, Presiding

                      Argued and Submitted August 29, 2012
                               Anchorage, Alaska

Before: HAWKINS, McKEOWN, and BEA, Circuit Judges.

       Plaintiff Janet Lewis (“Lewis”) prevailed in her retaliation claim against

defendants Michael B. Donley, Secretary of the United States Air Force, and the


       *
        This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
United States of America (collectively, “Government”) and was awarded $100,000

by a jury. The district court in large part granted Lewis’s request for attorney’s fees

as the prevailing party, awarding $274,479, but denied her motion for equitable

remedies such as back pay and reinstatement. The Government appeals the attorney’s

fee award and Lewis cross-appeals the denial of equitable remedies. We affirm both

decisions.

      The district court did not abuse its discretion by awarding Lewis nearly all the

fees she requested. Although she prevailed on only one of the ten claims she alleged

in her third amended complaint, her claims arose out of a “common core of facts” or

were based on “related legal theories,” and thus the court reasonably concluded that

“[m]uch of counsel’s time will be devoted generally to the litigation as a whole,

making it difficult to divide the hours expended on a claim-by-claim basis.” Hensley

v. Eckerhart, 461 U.S. 424, 435 (1983). The court also sufficiently considered the

relationship of the fees requested to the success achieved, and concluded that the

$100,000 verdict was substantial and that the hours were reasonably expended to

achieve this result. See id. at 435-36.

      Nor did the court abuse its discretion by declining to grant Lewis’s request for

equitable remedies. The Special Verdict Form did not require the jury to identify

which adverse employment actions it found to be retaliatory. In the absence of such


                                          2
a finding, the court reviewed the evidence and found Lewis had failed to establish that

but for her EEO complaint she would not have been terminated, and concluded that

she was actually terminated because she took leave without her employer’s approval.

This finding is not clearly erroneous, and precludes the award of reinstatement or back

pay. 42 U.S.C. § 2000e-5(g)(2)(A) (plaintiff must establish termination was not for

“any reason other than” discrimination/retaliation).1

      For the first time on appeal, Lewis argues that even assuming she was actually

terminated for her AWOL status, she should nonetheless receive equitable remedies

because her employer’s retaliatory acts caused the health problems that led her to take

leave without permission. We decline to address this fact-dependent issue in the first

instance. See In re Mercury Interactive Corp. Sec. Litig., 618 F.3d 988, 992 (9th Cir.

2010).

      AFFIRMED.




      1
         Nor is the court’s finding necessarily inconsistent with the jury’s verdict.
Although the jury’s compensatory award must have encompassed medical bills
associated with Lewis’s heart attack, it does not follow that the jury must have found
the termination was retaliatory and caused the attack. It is equally plausible for the
jury to have found that one or more of the earlier retaliatory acts contributed to
Lewis’s stress condition and compromised her heart health, eventually causing the
heart attack when she received the termination letter, even if the termination itself
were not a retaliatory act.

                                          3
4
