49 Fair Empl.prac.cas. 472,49 Empl. Prac. Dec. P 38,858william Lattimore, Plaintiff-appellee, v. Oman Construction, Defendant-appellant,bill White, Defendant, 868 F.2d 437 (11th Cir. 1989)

The appellee, William Lattimore, successfully sued his former employer, the appellant Oman Construction Company ("Oman"), for discriminatory discharge under Title VII of the Civil Rights Act of 1964. The district court's award included compensation for the appellee's lost earnings, prejudgment interest on those earnings, and attorneys' fees and costs. At the hearing on attorneys' fees, Lattimore sought $33,235.00 in reasonable attorneys' fees pursuant to 42 U.S.C. § 2000e-5(k) and also requested a 100% enhancement of this lodestar amount.¹  The court granted an enhancement of 68.4% of the lodestar for a total of $55,973.75. See Lattimore v. Oman Constr., 644 F. Supp. 22 (N.D. Ala. 1985).

On appeal, this court reversed on the grounds that enhancement of attorneys' fees based on the contingent nature of the representation was improper where, as here, counsel did not achieve "exceptional" results. We remanded the case to the district court with directions that the court enter a judgment in the original lodestar amount of $33,235.00. See Lattimore v. Oman Constr., 795 F.2d 930 (11th Cir. 1986). A year later, this court, sitting en banc, vacated that decision and remanded to the district court for further evidentiary factfinding and reconsideration in light of an intervening United States Supreme Court decision, Pennsylvania v. Delaware Valley Citizens' Council for Clean Air ("Delaware Valley II "), 483 U.S. 711, 107 S. Ct. 3078, 97 L. Ed. 2d 585 (1987). See Lattimore v. Oman Constr., 832 F.2d 560 (11th Cir. 1987).

Following the fee hearing on remand, the district court awarded the appellee attorneys' fees and costs in the sum of $210,176.73, which included a 100% enhancement of the recalculated lodestar amount²  as well as $6,164.28 in attorneys' fees for Lattimore's counsel on appeal. Oman appealed from this award.

Although we entertain some doubts as to whether the facts underlying this case justify an enhancement in the first place, Oman waived this issue on several occasions during the hearing on remand. Oman admitted that some enhancement was proper under the standards set forth in Delaware Valley II, supra, challenging only the degree of the enhancement.³  3] As a general rule, an appellate court will not consider a legal issue or theory raised for the first time on appeal. United States v. Southern Fabricating Co., 764 F.2d 780, 781 (11th Cir. 1985); Sanders v. United States, 740 F.2d 886, 888 (11th Cir. 1984); accord Denis v. Liberty Mut. Ins. Co., 791 F.2d 846, 848-49 (11th Cir. 1986). Our discretion to address an argument not raised in the district court depends upon whether " 'it involves a pure question of law, and if refusal to consider it would result in a miscarriage of justice.' " United States v. Southern Fabricating Co., supra, 764 F.2d at 781 (quoting Roofing & Sheet Metal Services, Inc. v. La Quinta Motor Inns, Inc., 689 F.2d 982, 990 (11th Cir. 1982)). Because Oman explicitly conceded the fact-based issue of whether Lattimore initially was entitled to enhancement, we perceive no manifest injustice in rejecting the appellant's attempt to raise it on appeal.

Delaware Valley II established two prerequisites for enhancement of a fee award based on contingency. First, enhancement for risk is inappropriate "unless the applicant can establish that without an adjustment for risk the prevailing party 'would have faced substantial difficulties in finding counsel in the local or other relevant market.' " 483 U.S. at ----, 107 S. Ct. at 3091, 97 L. Ed. 2d at 603 (O'Connor, J., concurring) (quoting plurality, ante, at ----, 107 S. Ct. at 3089, 97 L. Ed. 2d at 601). Second, "compensation for contingency must be based on the difference in market treatment of contingent fee cases as a class, rather than on an assessment of the 'riskiness' of any particular case." Id. at ----, 107 S. Ct. at 3089, 97 L. Ed. 2d at 601.⁴ 

At the hearing on remand, Lattimore presented the uncontroverted testimony of numerous practitioners with experience in the field of civil rights litigation. The district court concluded, based upon this testimony, that the relevant market for legal services enhanced fees for contingency as a class "by 100% at the very least" and that " [w]ithout enhancement, plaintiff would have faced substantial, and probably insurmountable, difficulties in finding counsel in the relevant market." The court found a "dearth" of attorneys willing to accept employment discrimination cases on a contingency basis in the Northern District of Alabama and noted as well the difficulties experienced both by the local bar association's lawyer referral service and the court itself in finding attorneys willing to accept such appointments. In support of its finding that enhancement by a factor of 100% or more was necessary to attract competent counsel in the relevant legal market, the court acknowledged that this market compensated for contingency in other comparable fields of the law at a rate ranging from two to eight times the noncontingent rates. We note also that the Middle District of Alabama recently found a 100% enhancement necessary "to meet [the] bottom-end requirement for employment discrimination cases in Alabama." See Hidle v. Geneva County Board of Education, 681 F. Supp. 752, 758 (M.D. Ala. 1988).

The district court's findings of fact on the issue of attorneys' fees cannot constitute a basis for reversal unless they are "clearly erroneous" under Fed. R. Civ. P. 52(a). Jones v. Central Soya Co., 748 F.2d 586, 592 (11th Cir. 1984). In City of Riverside v. Rivera, 477 U.S. 561, 106 S. Ct. 2686, 91 L. Ed. 2d 466 (1986), a majority of the United States Supreme Court acknowledged the extremely circumscribed standard of review accorded to the trial court's factfindings in a fee award case. Justice Powell clearly disagreed with the trial court's subsidiary findings on the fee issue as well as the amount of the fee awarded, but declined to reverse on the grounds that the clearly erroneous rule does not permit " 'a reviewing court [to] reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently.' " 477 U.S. at 584, 106 S. Ct. at 2699, 91 L. Ed. 2d at 485-86 (Powell, J., concurring) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573, 105 S. Ct. 1504, 1511, 84 L. Ed. 2d 518, 528 (1985)).⁵  Similarly, although we might find a 100% enhancement to be unwarranted under the circumstances of this case, we cannot say with certainty that the district court's findings of fact on the fee issue were clearly erroneous, and therefore we are bound to affirm.

Oman also takes the untenable position that Lattimore is not entitled to appellate attorneys' fees under 42 U.S.C. § 2000e-5(k) because he was not a "prevailing party" in the first appeal.⁶  Although this court initially decided the enhancement entitlement issue in the appellant's favor, that decision was vacated by the en banc court, which effectively divested Oman of its status as a "prevailing party." Moreover, Lattimore became the prevailing party when he obtained a judgment on the merits of his claim. See Doe v. Busbee, 684 F.2d 1375, 1381 (11th Cir. 1982). It is well established that the fee-applicant's failure to "prevail on every contention raised in the lawsuit" is not a justification for reduction of the fee award. Hensley v. Eckerhart, 461 U.S. 424, 435, 103 S. Ct. 1933, 1940, 76 L. Ed. 2d 40, 52 (1983). Lattimore undeniably achieved the "significant relief to which he was entitled under the civil rights laws" by prevailing on the issue of whether he was discriminatorily discharged from Oman's employment. See Doe v. Busbee, supra, 684 F.2d at 1381. In any event, we consider Lattimore to be a prevailing party on the appeal by virtue of the appellant's "voluntary actions," id., since Oman specifically conceded the appropriateness of enhancement at the hearing on remand.

The judgment of the district court is AFFIRMED.