Lead Opinion
Dissenting Opinion filed by Circuit Judge RANDOLPH.
This attorney’s fees dispute arises out of a lawsuit tried in 1989, in which a jury found that Julie Goos was improperly dismissed by her employer, the National Association of Realtors (“NAR”), in violation of the District of Columbia Human Rights Act (“DCHRA”), and awarded her $9,000 of the $20,000 in backpay and lost benefits she had sought. Following the jury verdict, Goos applied for attorney’s fees pursuant to the DCHRA, and the district court reduced by 30% the $13,793 in fees she had incurred before NAR had made a settlement offer, basing this reduction on the fact that Goos had failed to prevail on a second count of her complaint in which she had alleged that the NAR had breached its employment contract with her.
I. BACKGROUND
The facts of this case have been discussed at length in our previous opinion and in the memoranda issued by the district court. See Goos I,
A. Underlying Litigation
In 1988, Julie Goos filed a complaint against her former employer, the National Association of Realtors. Goos alleged that
Ms. Goos’ complaint contained two counts. In Count I she alleged her own discharge was retaliatory, in violation of the District of Columbia Human Rights Act; in Count II she alleged that the NAR had breached its contract with her by violating the procedures set forth in its employee handbook. Shortly before trial, the district court granted summary judgment in favor of the NAR on Count II. Also before trial, the NAR extended an “Offer of Judgment” to Ms. Goos, pursuant to Fed.R.Civ.P. 68, in the amount of $18,000. Ms. Goos rejected the offer, and tried the case before a jury.
In her original complaint, Ms. Goos had sought $500,000 for loss of pay and other benefits, and $1 million for “embarrassment, humiliation, indignity, and other injuries.” At trial, Ms. Goos introduced evidence of approximately $20,000 in damages for back-pay and lost benefits. The jury found in her favor on the retaliatory discharge claim and awarded her $9,000 in damages.
B. Fee Dispute
After recovering the $9,000 in damages under Count I, Ms. Goos petitioned the district court for attorney’s fees pursuant to §§ 2553(a)(1)(E) and 2556(b) of the DCHRA. The court determined that counsel had generated $13,793 in fees prior to the time that the NAR made its offer of judgment, and then reduced this amount by 30% to account for time spent on Count II, on which Ms. Goos had not been successful, yielding a subtotal of $9,655. The court then reduced this subtotal by an additional 50%, due to the limited nature of Ms. Goos’ success on Count I, bringing the award to $4,827. Finally, the court added 5% to this amount to account for the two-year delay between the filing of the fee petition and the awarding of fees (bringing the total to $5,068), and added this amount to the $3,149 in costs incurred by counsel, yielding a grand total of $8,217.
Ms. Goos appealed this fee award, arguing, inter alia, that the district court had misapplied the test set forth in Hensley for determining fees when a plaintiff prevails on some but not all of the counts of her complaint. Ms. Goos argued that both counts involved a central issue — whether the NAR had improperly dismissed her for retaliatory reasons— and therefore shared a “common core of facts.” See Hensley,
On remand, the district court recalculated the fee award. The court started with the $13,793 in pre-settlement-offer fees, just as before. This time, however, the court reduced the $13,793 by 65% to account for Ms. Goos’ limited success, yielding $4,827. The court then added 5% to account for the delay, and added the $3,149 in costs, giving a grand total of $8,217 — exactly the same amount as before. The court offered the following explanation for why a 65% reduction was warranted:
Although plaintiff asked for a $20,000 award of actual damages at trial, the jury awarded her only 45%, or $9,000. Additionally, while the work done on count 2 related to the work done on count 1, count 2 was admittedly redundant. The time was not “reasonably expended on the litigation.” As such, the “relief obtained” for that work was zero, and would have been*1384 even if plaintiff prevailed on count 2. Treating the counts as arising from a common nucleus of operative facts, as it must, this Court finds the total work done compared with the total relief obtained warrants a reduction in fees of 65%.
Mem.Op. at 3 (internal footnote and citations omitted).
II. Discussion
The nub of the dispute this time around is whether the district court abused its discretion in reducing Ms. Goos’ presettlement-offer fees by 65%. Ms. Goos argues that this reduction was an abuse of discretion because at trial she had been awarded 45% of the $20,000 in backpay and benefits she was seeking. Moreover, she argues that the district court provided no clear explanation for why a 65% reduction for limited success was appropriate on remand, when the court had reduced fees by only 50% for limited success the first time it decided the matter. The NAR argues that the 65% reduction was not an abuse of discretion, because it was applied to the total fees requested for both Counts I and II, while the original 50% reduction had been applied only to the fees attributable to the successful Count I. Because the two percentage reductions were applied to different corpuses, the NAR argues, there is no reason why they should be the same. Indeed, the NAR notes, this court left the door open for just such a reduction when we said that the district court would “ ‘necessarily ha[ve] discretion’ to determine the degree of plaintiffs success in pursuing her claims.” Goos I,
Although we reaffirm here that the district court does indeed have broad discretion to reduce requested fees when a plaintiff has achieved limited success on her basic claim, we find that the district court did not provide a rationale for its 65% reduction, other than the citation to the $9,000 jury award, and the “redundant” and unsuccessful nature of Count II. Under Hensley, once a court has determined that a plaintiffs different legal claims are based on the same factual scenario (which we did in Goos I) or the same legal theory, the court should determine fees by evaluating “the significance of the overall relief obtained ... in relation to the hours reasonably expended on the litigation.” Hensley,
It remains important, however, for the district court to provide a concise but clear explanation of its reasons for the fee award. When an adjustment is requested on the basis of either the exceptional or limited nature of the relief obtained by the plaintiff, the district court should make clear that it has considered the relationship between the amount of the fee awarded and the results obtained.
Id. at 437,
Moreover, the Supreme Court specifically addressed the situation we are faced with here — where the plaintiff has advanced multiple claims based on the same core set of facts or related legal theories, but has prevailed on only one:
Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee. Normally this will encompass all hours reasonably expended on the litigation, and indeed in some cases of exceptional success an enhanced award may be justified. In these circumstances the fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit. Litigants in good faith may raise alternative legal grounds for a desired outcome, and the court’s rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee. The result is what matters.
Id. at 435,
Thus, a plaintiffs failure to prevail on a related count is not in itself a sufficient ground for reducing her fees. It is a plaintiffs overall success, and not the number of counts she prevails on, that determines the amount of fees she is entitled to. See Action on Smoking & Health v. Civil Aeronautics
Although at first blush it might seem odd to award attorney’s fees based even in part on unsuccessful claims, the logic of this approach has been well explained:
For tactical reasons and out of caution lawyers often try to state their client’s claim in a number of different ways, some of which may fall by the wayside as the litigation proceeds. The lawyer has no right to advance a theory that is completely groundless or has no factual basis, but if he presents a congeries of theories each legally and factually plausible, he is not to be penalized just because some, or even all but one, are rejected, provided that the one or ones that succeed give him all that he reasonably could have asked for.
Lenard v. Argento,
If claims are related, failure on some claims should not preclude full recovery if plaintiff achieves success on a significant, interrelated claim.... The Supreme Court clearly held in Hensley that plaintiffs can argue alternative legal theories without being penalized at the attorneys fees stage if the court only adopts one of the theories.... We therefore hold that success on the due process claim precludes reduction of the lodestar on the basis of those alternative theories [ie., equal protection, involuntary servitude, and First Amendment].
Id. at 1512. In Casey v. City of Cabool,
The City contends that some of the time compensated was spent in pursuit of theories and on issues upon which Casey did not prevail. This argument ignores the precedents on this issue and their rationale. Once a party is found to have prevailed, “[a] fee award should not be reduced merely because a party did not prevail on every theory raised in the lawsuit.”
Id. at 806 (quoting Hendrickson v. Branstad,
In the present case, the defendant argues that plaintiffs claim for attorneys’ fees should be reduced because plaintiff succeeded on only one of his five claims of discrimination and failed to succeed on his constitutional claims. Nonetheless, this court believes that plaintiff achieved “excellent results” in this case. Although the plaintiff alleged that he was denied five separate promotions, he could only have recovered backpay for one. Furthermore, the plaintiff could not have been reinstated into more than one of these positions. Plaintiff recovered as much as he could have if he had prevailed on all five claims.... Therefore, under the analysis set out in Hensley, plaintiff would recover the full amount of reasonable hours worked on this litigation at a reasonable rate of pay.
Krodel v. Young,
After the fact, it is of course easier to identify which arguments were winners and which were losers and state forcefully how an attorney’s time could have been better spent. But litigation is not an exact science. In some cases, the lawyer’s flagship argument may not carry the day, while the court embraces a secondary argument the lawyer rated less favorably. That is precisely why lawyers raise alternative grounds — a practice which is explicitly sanctioned by our Rules of Civil Procedure. See Fed.R.Civ.P. 8(e) (“A party may set forth two or more statements of a claim or defense alternately_”).
There are, moreover, four distinct safeguards which will prevent an attorney from obtaining an unfair windfall when she pursues multiple claims. First, where claims are groundless or not raised in good faith the attorney should get no award for hours spent on those claims, even if the claims are related to other, meritorious claims. Second, where the claims do not share a common basis in
The upshot is that “a plaintiff is not automatically entitled to all of her attorney’s fees in a case in which she prevailed on some but not all claims.” See Fishman v. Clancy,
Here, the district court did not determine that Goos’ breach of contract claim was frivolous or raised in bad faith, and the court was bound by our determination that the breach of contract claim was related to her retaliatory discharge claim. See Goos I,
The bottom line is that “the district court should focus on the significance of the overall relief obtained ... in relation to the hours reasonably expended on the litigation.” Hensley,
III. Conclusion
When we first considered this ease we noted that remanding attorney’s fees cases is undesirable. Goos I,
So ordered.
Notes
. In addition to her pre-settlement fees of $13,-793, Goos incurred post-settlement fees of $18,-219. See Goos v. National Ass’n of Realtors, 57 Fair.Empl.Prac.Cas. (BNA) 1531,
The “costs incurred after malting the offer" include attorney’s fees. See Marek v. Chesny,
Here, the district court awarded Goos’ pre-settlement fees and costs of $8,217. Because that amount, when added to the jury verdict of $9,000, was less than the $18,000 offer, the court did not reach the issue of post-settlement fees. On remand, however, if the district court determines that Goos is entitled to pre-settlement fees and costs in excess of $9,000, she will no longer be barred under Rule 68 from recovering her post-settlement fees as well.
. The district court then added 5% to this amount to account for the delay between the filing of the fee petition and the awarding of fees, and added the $3,149 in costs incurred by counsel, for a total award of $8,217. Neither of these adjustments is in dispute here.
. We must take issue with our dissenting colleague’s statement that this interpretation of
.The dissent apparently concedes that where a plaintiff obtains "excellent” results, Hensley proscribes a reduction in fees solely on the grounds that the plaintiff failed to prevail on a related claim. See Diss.Op.at 1389. As the dissent would have it, however, if a plaintiff falls short of an "excellent” result by even the thinnest of margins, all hours expended on related, unsuccessful claims could be excluded. This notion seems intuitively wrong and counter to the general thrust of Hensley that the award be based on the results obtained by the plaintiff. Instead, it would create an artificial “notch” effect whereby the plaintiff who falls just short of "excellent” results would risk having her attorney’s fees substantially reduced.
. The ABA Model Rules of Professional Conduct and ABA Model Code of Professional Responsibility list as a relevant factor in determining the reasonableness of a fee, "the amount involved and the results obtained.” Neither suggests that a claim-by-claim approach to evaluating reasonableness is appropriate. See Model Rules of Professional Conduct Rule 1.5(a) (1983); Model Code of Professional Responsibility DR-2-106(B) (1969).
. In rejecting a challenge by appellants that the prevailing party should not have received reimbursement for hours expended after a settlement offer had been made because "these hours did not contribute sufficiently to the monetary relief ultimately obtained by appellees,” the court said that appellant’s argument.
succeeds only if we were to engage in an ex post facto determination of whether attorney hours were necessary to the relief obtained. The relevant issue, however, is not whether hindsight vindicates an attorney's time expenditures, but whether, at the time the work was performed, a reasonable attorney would have engaged in similar time expenditures.
Grant v. Martinez,
. If claims are peripheral to the primary claim or do not share a common nucleus, the court is to treat those claims as if they were raised in separate lawsuits. See Texas Teachers Ass'n v. Garland Indep. Sch. Dist.,
. Hensley requires the district court to “exclude from this initial fee calculation hours that were not 'reasonably expended.' ”
Cases may be overstaffed, and the skill and experience of lawyers vary widely. Counsel for the prevailing party should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission.
Id. at 434,
. The Hensley Court discussed a case in which "a fired schoolteacher had sought reinstatement, lost wages, $25,000 in damages, and expungement of derogatory material from her employment record." Id. at 438 n. 14,
In remanding the Eighth Circuit implied that the District Court should not withhold fees for work on unsuccessful claims unless those claims were frivolous. Today we hold otherwise. It certainly was well within the Brown District Court’s discretion to make a limited fee award in light of the "minor” relief obtained.
Id.
In contrast, Ms. Goos succeeded in demonstrating her "central and difficult-to-prove factual premise ... that the NAR had engaged in a retaliatory dismissal.” Goos I,
. Here, however, we are not presented with a situation where the plaintiff threw everything but the kitchen sink into her complaint. Goos had only two counts, and despite her failure to prevail on Count II, it is nowhere suggested that this count was frivolous, patently unreasonable, or inappropriate to this litigation.
. See, e.g., Rode v. Dellarciprete,
. Where a related claim would potentially have yielded the plaintiff additional relief, the failure on that claim will of course be relevant in determining the plaintiff's overall success. But where, as is the case here, the unsuccessful claim could not have given relief beyond the scope of the successful claim, the fact of failure is not an independent basis for a reduction.
. It is hard to infer anything different from the court's statement:
Additionally, while the work done on count 2 related to the work done on count 1, count 2 was admittedly redundant. The time was not “reasonably expended on the litigation.” As such, the "relief obtained” for that work was zero, and would have been even if plaintiff prevailed on count 2.
Mem.Op. at 3.
Dissenting Opinion
dissenting:
We have said again and again — and the majority says it yet again — that the decision whether to award attorney’s fees, and in what amount, is entrusted to the “broad discretion” of the district court. But each time we render the sort of decision handed down today, that discretion becomes narrower and narrower. Strict legal rules, embodied in our opinions, begin to replace the good judgment of district judges in these matters. A familiar cycle takes over. The more rules we create, the more appeals we encourage, the more opinions we hand down, the more rules we impose. Discretionary justice, then, begins to take on the appearance of non-discretionary justice, wielded from the appellate bench.
Of course, if higher authority has mandated a particular principle, we must apply it. But the rules announced in the majority opinion are not of that sort. The Supreme Court’s decision in Hensley v. Eckerhart,
Ms. Goos, then, falls within the common sense holding of Hensley that when a plaintiff has achieved only limited or partial success, a district court may reduce the fee award to account for the limited success. “This will be true even where the plaintiffs claims were interrelated, nonfrivolous, and raised in good faith.” Id. at 436,
The majority notices that plaintiffs’ lawyers often bring several claims and make several legal arguments in one lawsuit. That is true, but beside the point. Fees are to be awarded for success, not for “devotion and skill.” Hensley,
Hensley did not hold, however, that whenever a plaintiff brings two or more related claims she is entitled to recover all of her attorney’s fees as long as she achieved more than “minor” success on one of them. Rather, the Hensley Court, recognizing the obvious, believed that there would be times when a plaintiffs partial or limited success — including failure to prevail on related claims— would render an award of fees based on all of the hours spent on the litigation excessive. The Hensley opinion speaks for itself:
There is no precise rule or formula for making these determinations. The district court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success. The court necessarily has discretion in making this equitable judgment.
Id. at 436-37,
I think the only plausible interpretation of Hensley is that whenever the plaintiff does not hit the jackpot, when the result is not “excellent,” the plaintiffs lack of success on a related claim is a relevant factor in determining the appropriate amount of attorney’s fees. We recognized as much in Goos v. National Ass’n of Realtors,
One need not plunge into deep legal analysis to realize that any other rule makes no sense. Where is the logic in saying — as the majority does — that a plaintiffs failure to prevail on a related claim has no bearing on the plaintiffs overall degree of success? If a plaintiff seeks some remedy or some legal ruling in her favor and spends time and resources to achieve that goal but ultimately fails, her “degree of success” has been reduced by that failure — and so should the attorney’s fees the defendant is ordered to pay. Of course there may be cases in which the relative unimportance of one legal issue — given the scope of the litigation, or the plaintiffs ultimate success on other claims— justifies a complete fee award. But I fail to see how a district court abuses its discretion whenever it takes into account the plaintiffs loss on a claim related to the one producing a victory of less than excellent proportions.
I am far from alone in believing that a plaintiffs failure to prevail on a related claim may be weighed in determining the plaintiffs degree of success. In Popham v. City of Kennesaw,
Among the many other appellate decisions contrary to the majority’s decision are the following. Fleischhauer v. Feltner,
In short, the district court had discretion to consider Goos’s failure to succeed on her related claim when it determined the degree of her overall success in the litigation. The majority opinion rests on a misreading of Hensley. It bucks an impressive array of authority from the other circuits.
. I shall assume, as does the majority, that Hensley 's inteipretation of 42 U.S.C. § 1988, governs our interpretation of the District of Columbia statute authorizing an award of a reasonable attorney's fee to plaintiff Goos in this case. (D.C. Code Ann. § l-2553(a)(l)(E)).
. The majority opinion is able to cite only one case, Jane L. v. Bangerter,