                Case: 13-11720    Date Filed: 05/16/2014   Page: 1 of 7


                                                              [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                   No. 13-11720
                             ________________________

                         D.C. Docket No. 4:96-cv-03257-RRA



JOHN HITHON,

                           Plaintiff-Appellant,
versus


TYSON FOODS, INC.,

                           Defendant-Appellee.

                             ________________________

                     Appeal from the United States District Court
                        for the Northern District of Alabama
                            ________________________

                                    (May 16, 2014)

Before WILSON, JORDAN and BLACK, Circuit Judges.

PER CURIAM:

         This employment discrimination case is before us again for consideration of

the district court’s award of attorney’s fees and costs. Appellant John Hithon

argues that the district court committed reversible error when ruling on his Motion
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for Attorney’s Fees and Costs (Petition). Following lengthy employment

discrimination litigation against Appellee Tyson Foods, Inc., Hithon prevailed on a

single promotion discrimination claim and ultimately recovered approximately

$364,000.00. Appellant’s counsel sought $2.9 million in fees and $56,000 in

litigation costs. The district court adopted hourly rates for attorneys lower than

those sought by Appellant and applied an 80-percent across the board reduction to

the Petition. Further, the district court disallowed nearly $40,000 in litigation

related expenses. In response to Appellant’s argument on appeal, Tyson maintains

that the district court substantially reduced the fee award because it found that the

Petition was not filed in good faith and was not based upon reasonable or

scrupulous billing judgment.

      We review an award of attorney’s fees for abuse of discretion, reversing

only if the court “fails to apply the proper legal standard or to follow proper

procedures in making the determination, or bases an award upon findings of fact

that are clearly erroneous.” ACLU of Ga v. Barnes, 168 F.3d 423, 427 (11th Cir.

1999) (internal quotation marks omitted). Determining reasonable attorneys’ fees

is “committed to the sound discretion of a trial judge, but the judge’s discretion is

not unlimited.” Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 558, 130 S. Ct.

1662, 1676 (2010) (citation omitted). The district court’s findings of fact are


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reviewed for clear error. Atlanta Journal and Constitution v. City of Atlanta Dep’t

of Aviation, 442 F.3d 1283, 1287 (11th Cir. 2006).

      We recognize that the attorney fee provision of 42 U.S.C. § 1988 is critical

to ensuring that employees can vindicate their rights by finding attorneys who are

willing to take their claims on a contingency basis, even where the expected

recovery is not large. However, upon review of the parties’ briefs and the record

before us, we find that, as a whole, the district court did not abuse its discretion in

awarding Appellant’s counsel fees far below what she requested. First, we cannot

say that the magistrate judge abused his wide discretion in setting the hourly rates

for Appellant’s attorneys. See Norman v. Housing Auth. of Montgomery, 836 F.2d

1292, 1301 (11th Cir. 1988) (“It is the job of the district court in a given case to

interpolate the reasonable rate based on an analysis of the skills enumerated above

which were exhibited by the attorney in the case at bar . . . .”). Second, despite

Appellant counsel’s claim that she eliminated 1,500 hours from the Petition, it

appears that she did not conduct an hour-by-hour review to separate successful

claims from unsuccessful claims, even after having been asked by the magistrate

judge to do so. Further, the district court provided numerous examples where

Appellant sought to recover fees related to the failed claims of other plaintiffs and

identified time entries where it was impossible to determine which hours were

spent on Hithon’s successful claim. Thus, we conclude that the district court did
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not abuse its discretion in determining that Appellant’s counsel failed to exercise

billing judgment or in cutting Hithon’s fees by a large percentage. See Hensley v.

Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 1939 (1983) (“Where the

documentation of hours is inadequate, the district court may reduce the award

accordingly.”).

       Nevertheless, we find that with respect to a few discrete areas, the district

court abused its discretion. First, the district court abused its discretion by failing

to include fees related to Appellant’s successful appeal. Although the court

correctly noted that no fees should be awarded for Appellant’s 2000 appeal, given

that Hithon’s promotion claim was not at issue, the hours spent on Appellant’s

successful 2005 appeal should be included. It appears, however, that Appellant’s

counsel has not distinguished between his successful and unsuccessful or unrelated

appeals. See Doc. 477-1, p. 27. Accordingly, we add Appellant’s requested hours

for the work of attorneys Alicia and Kenneth Haynes before the 11th Circuit, at the

hourly rates determined by the district court, applying the 80% across-the-board

reduction for the reasons stated. 1



       1
         Appellant’s counsel requested 463.8 hours for Alicia Haynes and 73 hours for Kenneth
Haynes for their work in the Eleventh Circuit. See Case No. 4:96-cv-03257, Doc. 477-1, p. 27.
The district court awarded hourly rates of $375.00 and $325.00 for Alicia and Kenneth Haynes
respectively. See Case No. 4:96-cv-03257, Doc. 478, p. 22. Accordingly, we add $ 39,530 to
the fee award for appellate work.
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       Second, we find that it was an abuse of discretion to exclude the fees

accrued by attorney Eric Schnapper for his work on behalf of Appellant before the

United States Supreme Court. Accordingly, we add Appellant’s requested hours

for Schnapper’s work, at the hourly rate determined by the district court. 2

       Finally, we find that the district court abused its discretion by denying the

majority of Appellant’s requested litigation costs without sufficient explanation.

We have explained that “with the exception of routine office overhead normally

absorbed by the practicing attorney, all reasonable expenses incurred in case

preparation, during the course of litigation, or as an aspect of settlement of the case

may be taxed as costs under section 1988.” Dowdell v. City of Apopka, 698 F.2d

1181, 1192 (11th Cir. 1983). Appellant sought costs and expenses totaling

$56,019.84, and submitted a table identifying each expense as well as affidavits

supporting the requests. The district court awarded Appellant $16,480.51,

essentially allowing each item to which Tyson did not object and a few others.

The district court explained that the costs submitted were duplicative, and often

lacked explanation or indication that they were associated with Hithon’s single

successful claim. For example, the district court disallowed all copying costs

       2
          At oral argument, Appellant stated that Schnapper worked only on the Supreme Court
appeals. The product of the 206 hours requested by Schnapper multiplied by the $375 rate set by
the district court is $77,250 total. As the district court awarded only $15,450 to Schnapper in its
Order, we award Schnapper an additional $61,800 for his work on the Supreme Court appeals.
See Doc. 477-1, p. 27; Doc. 478, p. 22.
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between October 14, 2008 and March 12, 2012, during which time only Hithon’s

case was proceeding. Also, the district court did not allow the $1,092.50 which

was awarded by the clerk of this court on January 19, 2012. We agree that the

Petition did not identify whether some of the costs were for Hithon’s meritorious

claim or for use in trial or appeal and that the Petition could have more clearly

presented Appellant’s taxable costs, but this court has explained that the

“reasonableness” standard articulated in § 1988 is liberally applied. See NAACP v.

City of Evergreen, 812 F.2d 1332, 1337 (11th Cir. 1987) (per curiam). Thus, for

the sake of simplicity and to ensure that § 1988 attorneys receive, at a minimum,

the reasonable costs of their litigation, we award Appellant an additional

$39,539.33, thus enabling him to recover the entirety of the costs sought in the

Petition.

      Therefore, we REVERSE in part and REMAND for the entry of judgment

for an additional $101,300 in attorneys’ fees, and an additional $39,539.33 in costs,

bringing the total amount of attorneys’ fees to $382,403.25, and total costs to

$56,019.84. We also find that since Appellant was partially successful in the

instant appeal, his counsel is entitled to reasonable attorneys’ fees for this appeal,

to be added to the total. If the parties are unable to agree upon a sum, we refer

them to the Eleventh Circuit mediator.


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       In all other respects, we AFFIRM as the district court did not abuse its

discretion.

      REVERSED AND REMANDED IN PART, AFFIRMED IN PART.




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