McAfee v. Boczar, No. 12-2481 (4th Cir. 2013)

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Justia Opinion Summary

Plaintiff filed suit against defendant under, inter alia, 42 U.S.C. 1983 for violation of plaintiff's Fourth Amendment rights after defendant, a deputy sheriff, arrested plaintiff for withholding information about possibly rabid animals. On appeal, defendant challenged the judgment of damages plus attorney's fees entered against her in the section 1983 proceeding. The court concluded that, by securing a warrant that lacked adequate evidentiary support, defendant infringed plaintiff's Fourth Amendment right to be free from capricious arrest and this constitutional right was clearly established. Therefore, defendant could not shield herself from damages liability by invoking qualified immunity. Because the district court overstated plaintiff's degree of success, it erred in not making an attorney's fee award that would properly reflect her success in this case. Accordingly, the court affirmed the verdict of damages but vacated the attorney's fee award, remanding for an award of $100,000, exclusive of costs.

The court issued a subsequent related opinion or order on January 23, 2014.

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PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-2481 EILEEN MCAFEE, Plaintiff Appellee, v. CHRISTINE M. BOCZAR, Defendant Appellant, and JOHN DOE 1; JOHN DOE 2; JOHN DOE 3, Defendants. No. 13-1088 EILEEN MCAFEE, Plaintiff Appellee, v. CHRISTINE M. BOCZAR, Defendant Appellant, and JOHN DOE 1; JOHN DOE 2; JOHN DOE 3, Defendants. No. 13-1356 EILEEN MCAFEE, Plaintiff Appellee, v. CHRISTINE M. BOCZAR, Defendant Appellant, and JOHN DOE 1; JOHN DOE 2; JOHN DOE 3, Defendants. Appeals from the United States District Court for the Eastern District of Virginia, at Richmond. Robert E. Payne, Senior District Judge. (3:11-cv-00646-REP-MHL) Argued: October 30, 2013 Decided: December 12, 2013 Before NIEMEYER, KING, and DUNCAN, Circuit Judges. Nos. 13-1356 and 13-1088 affirmed; No. 12-2481 vacated and remanded with instructions by published opinion. Judge King wrote the opinion, in which Judge Niemeyer and Judge Duncan joined. ARGUED: Henry Keuling-Stout, KEULING-STOUT, PC, Big Stone Gap, Virginia, for Appellant. William H. Hurd, TROUTMAN SANDERS LLP, Richmond, Virginia, for Appellee. ON BRIEF: Michael R. Ward, MORRIS & MORRIS, PC, Richmond, Virginia, for Appellant. Stephen C. Piepgrass, TROUTMAN SANDERS LLP, Richmond, Virginia, for Appellee. 2 KING, Circuit Judge: Defendant Christine Boczar, a deputy sheriff of Powhatan County, Virginia, appeals the judgment of damages plus attorney s fees entered against her in the Eastern District of Virginia in this 42 U.S.C. § 1983 proceeding. two appellate issues: Boczar presents First, she contends that she is entitled to qualified immunity such that a trial should not have been conducted; and, second, she maintains that, even should the jury s verdict stand, the district court s award of $322,340.50 in attorney s fees to plaintiff Eileen McAfee is contrary to law. As explained below, we reject Boczar s qualified immunity contention and affirm the verdict of damages totalling $2943.60. We vacate the attorney s fee award, however, and remand for an award of $100,000, exclusive of costs. I. A. On December 26, 2010, Eileen McAfee accompanied a friend to a residence in Powhatan County, Virginia, to inspect a dog that appeared to be in distress. 1 After securing permission from the 1 Insofar as they relate to the qualified immunity issue, we recite the facts in the light most favorable to McAfee. Henry v. Purnell, 501 F.3d 374, 377 (4th Cir. 2007). With respect to facts relating solely to the attorney s fee award, we accept the facts unless clearly wrong as they were set forth by the (Continued) 3 owner, McAfee examined the dog and concluded that it lacked appropriate shelter but was otherwise in good condition. McAfee then bought the animal a new doghouse and, on January 7, 2011, delivered it to the dog and its owner. While setting up the doghouse, McAfee sought to feed the pet a treat. Unfortunately, in its eagerness to eat the treat, the dog accidentally bit McAfee s hand, causing McAfee to seek medical treatment at a local hospital. The hospital reported McAfee s dog bite to the animal control authorities in Powhatan County. Deputy Boczar, an animal control officer with the Powhatan County Sheriff s Office, received notification of McAfee s dog bite and began an investigation. On January 10, 2011, she inquired by telephone about the incident, asking McAfee where the dog was housed. McAfee, who was unfamiliar with Powhatan County, replied that she did not know the owner s address but could lead Boczar to the dog s location. Boczar declined McAfee s offer and ended the conversation, which was apparently the only thereafter exchange contacted Boczar two ever other had with persons, McAfee. further Boczar seeking to locate the dog. Both of those persons had spoken to McAfee district court. Cir. 1990). See Plyler v. Evatt, 902 F.2d 273, 278 (4th 4 about the dog bite incident, but neither had sought to ascertain from McAfee the location of the dog. Predicated on these conversations, Boczar determined that McAfee had refused to disclose to the authorities the location of the dog, in violation of Virginia Code § 18.2-313.1, which prohibits the withholding of information about possibly rabid animals. As a result, on January 13, 2011, Boczar secured an arrest warrant for McAfee from a state court magistrate. Boczar then arrested McAfee on the warrant and transported her to the County Sheriff s Office. McAfee on and bond, a The magistrate one-day magistrate court on May 27, 2011. jury thereafter trial was released conducted in At its conclusion, McAfee was acquitted. B. On September 28, 2011, the underlying complaint was filed in the Eastern District of Virginia, alleging that Boczar had arrested McAfee without three separate claims: probable cause. The complaint made first, a claim under 42 U.S.C. § 1983 for violation of McAfee s Fourth Amendment rights (Count I); second, a claim for malicious prosecution under state law (Count II); and, third, (Count III). a false imprisonment claim under state law In responding to McAfee s complaint, Boczar moved for summary judgment on the basis of qualified immunity, which the court promptly denied. Boczar also sought the dismissal of 5 Count III under Rule 50 of the Federal Rules of Civil Procedure, which the court granted. A jury trial was thereafter conducted in Richmond on the allegations in the first two counts of the complaint. At the trial s conclusion on July 6, 2012, the jury returned a verdict for McAfee on the § 1983 claim and in favor of Boczar on compensatory evidence. Count and II. At punitive trial, damages McAfee as requested determined by both the McAfee v. Boczar, 906 F. Supp. 2d 484, 488 (E.D. Va. 2012) (the Opinion ). In closing argument to the jury, counsel for her McAfee summed up claims thusly: [M]oney can never really compensate for what has been done here, but money is the only remedy the law has to offer. to compensate Ms. McAfee? Something else? The jury So what is the right number Is it $50,000? Is it something more? verdict found that McAfee Is it $500,000? You decide. was entitled J.A. 339. 2 to recover $2943.60 in stipulated out-of-pocket expenses relating to her state court defense, which the jury awarded on her § 1983 claim. The jury declined to otherwise award McAfee additional compensatory or any punitive damages. 2 Our citations herein to J.A. __ refer to the contents of the Joint Appendix filed by the parties in this appeal. As it pertains to the issues herein, the published Opinion addressed and disposed of McAfee s § 1988 fee petition without revisiting the district court s decision to deny Boczar qualified immunity. 6 After the jury returned its verdict, Boczar made a renewed motion for qualified immunity on the § 1983 claim. The district court again denied the motion, explaining that Boczar s conduct in arresting McAfee lacked probable cause and fails to meet the test of objective reasonableness required for the protection of qualified immunity. McAfee v. Boczar, No. 3:11-cv-00646, 2012 WL 3525619, at *2 (E.D. Va. Aug. 15, 2012). In so ruling, the court focused on Boczar having secured McAfee s arrest warrant on the basis of false statements. Indeed, Boczar represented to the magistrate that McAfee refuse[d] to give any information about the dog s whereabouts. Id. at *3. was statement established that this At trial, however, it was untrue. Boczar testified that, in her only conversation with McAfee, Boczar had explained that she could locate the dog, though she did not have the address where it lived. Neither of the other two persons Boczar interviewed about the dog bite incident told Boczar that McAfee had refused to give the location of the dog. As a result, the court concluded that Boczar lied to the magistrate to secure the arrest warrant, and that such conduct does not give rise to qualified immunity. Id. After the court accepted the verdict and entered judgment thereon, McAfee filed a petition pursuant to 42 U.S.C. § 1988, seeking a total of $365,027 in attorney fees, plus $10,305.51 in costs (the Fee Petition ). Though acceding to the full amount 7 of the documented costs, Boczar complained that the requested fees were awarding unreasonable $15,000. Petition to The a negotiations. and district federal A countered court magistrate settlement with then a proposal referred judge conference fee for was the Fee settlement conducted on September 19, 2012, but the parties were unable to reach an accord. that The magistrate judge reported to the district court the state s Division of Risk Management, which was responsible for the damages award, had refused to negotiate in good faith. Because court the settlement independently negotiations evaluated the Fee failed, Petition the to district determine whether the request was reasonable under 42 U.S.C. § 1988, which provides that the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney s fee with pursuant to § 1983. respect to a claim, inter alia, made Applying the familiar lodestar method, the court granted the Fee Petition in part. By its Opinion, the court determined that the hourly rates of McAfee s lawyers were reasonable and that, applying a ten percent reduction in the hours logged to account for block billing, the amount of time devoted to the case by counsel was also reasonable. As a result, the court awarded McAfee $322,340.50 in attorney s fees, 8 plus the $10,305.51 in agreed costs. See McAfee, 906 F. Supp. 2d at 505. Boczar has timely appealed, challenging the district court s denial of qualified immunity and its related decision to conduct a trial, and also seeking to vacate the attorney s fee award. We possess jurisdiction pursuant to 28 U.S.C. § 1291. 3 II. A. McAfee alleged that Boczar violated her Fourth Amendment rights by subjecting her to arrest without probable cause. In seeking relief from McAfee s allegations of liability pursuant to 42 U.S.C. § 1983, Boczar unsuccessfully asserted qualified immunity. We review de novo a 3 district court's denial of Boczar filed three notices of appeal. The first (No. 122481) was from the district court s November 2, 2012 Order granting McAfee s initial fee petition and awarding her $332,646.01. The second (No. 13-1088) was from the court s Order filed December 19, 2012, disposing of McAfee s supplemental petition in which she requested an additional $59,021.00 in attorney s fees incurred post-trial, including fees for preparation of the initial fee petition. The court granted the supplemental petition, but, after substantial reductions in the amount claimed, awarded only $12,628. The supplemental award has gone virtually unchallenged here, and we therefore affirm it. The third notice of appeal (No. 13-1356) was from the court s judgment of February 22, 2013, awarding McAfee $2943.60 in damages. The court had delayed its entry of judgment pending final resolution of Boczar s renewed qualified immunity defense. 9 qualified immunity. Merchant v. Bauer, 677 F.3d 656, 661 (4th Cir. 2012). 4 In this district request. case, court Boczar prior to invoked trial by qualified immunity way summary of a in the judgment In some circuits, a defendant s failure to follow the procedures set forth in Rule 50 beginning with a Rule 50(a) motion and constitutes then a renewing waiver of the the contention qualified under immunity Rule 50(b) claim. See, e.g., Parker v. Gerrish, 547 F.3d 1, 12 (1st Cir. 2008) ( [W]e have held that even if a defendant raises qualified immunity at summary judgment, the issue is waived on appeal if not pressed in a Rule 50(a) motion. ); Sykes v. Anderson, 625 F.3d 294, 304 (9th Cir. 2010) ( The Defendants' failure to make a pre-verdict motion for judgment as a matter of law under Rule 50(a) on the grounds of qualified immunity precluded them from making a post- 4 Boczar has proceeded with her qualified immunity argument in an arguably unconventional manner. She first asserted qualified immunity in a motion for summary judgment under Rule 56. After the district court denied the motion, McAfee s case proceeded to trial. Boczar did not raise qualified immunity again until after the jury verdict. Although a post-verdict motion for judgment as a matter of law is acceptable under Rule 50(b), it is usually preceded by one or more motions under Rule 50(a), typically made at the close of the plaintiff s case-inchief and again after all the evidence has been presented. See Fed. R. Civ. P. 50(a) (authorizing a party to seek judgment as a matter of law at any time before the case is submitted to the jury). A party is permitted to renew a Rule 50(a) motion after trial. See Fed. R. Civ. P. 50(b). 10 verdict motion under Rule 50(b) on that ground. ). Here, however, we need not decide whether Boczar s unusual approach has worked a waiver of qualified immunity, because we are amply satisfied that no such immunity was warranted. Qualified immunity serves to protect a government official from liability for civil damages unless the facts alleged show a violation of a clearly established Merchant, 677 F.3d at 662. the Fourth cause to Amendment believe to that constitutional right. Here, McAfee asserts her right under be she free had from arrest committed a absent probable crime. We have consistently explained that probable cause has been shown when the facts and circumstances within an officer s knowledge or of which he possesses reasonably trustworthy information are sufficient caution in that themselves an to offense convince has been a or person is of being reasonable committed. Wadkins v. Arnold, 214 F.3d 535, 539 (4th Cir. 2000). In this sufficient believe knowledge that interviewed situation, McAfee only about it is McAfee s contravened three clear persons, dog Virginia and none that bite Boczar to law. had lacked reasonably Boczar suggested McAfee was refusing to disclose the dog s location. had that With such limited knowledge, a law officer of reasonable caution would not believe that McAfee had violated § 18.2-313.1. Indeed, that Boczar made false statements to the state magistrate in seeking 11 McAfee s arrest suggests that Boczar understood that the evidence failed the probable cause standard. By securing a warrant that lacked adequate evidentiary support, Boczar infringed McAfee s Fourth Amendment right to be free from capricious arrest. clearly established. And this constitutional right is See Miller v. Prince George's Cnty., 475 F.3d 621, 627 (4th Cir. 2007) ( Unquestionably, [t]he Fourth Amendment prohibits unreasonable without law seizures, probable and cause marks omitted)). enforcement seizure is of officers an unreasonable. from individual (internal making effected quotation Therefore, Boczar cannot shield herself from damages liability by invoking qualified immunity. B. The more difficult issue in this appeal is whether the district court s § 1988 attorney s fee award is reasonable. The threshold requirement for such an award is, of course, that the § 1983 plaintiff be a prevailing Eckerhart, 461 U.S. 424, 433 (1983). party. Hensley v. The designation of a party as prevailing is a legal question that we review de novo. See Grissom v. The Mills Corp., 549 F.3d 313, 318 (4th Cir. 2008). For purposes of § 1988, a party in whose favor a judgment is rendered, regardless of the amount of damages awarded, is the prevailing party. if there has Id. been More specifically, a party has prevailed a material 12 alteration of the legal relationship of the parties, imprimatur on the change. and there is a judicial Id. Neither party disputes the proposition that McAfee was the prevailing party on the § 1983 claim. The jury s verdict of $2943.60 created a material alteration of the legal relationship between McAfee and Boczar, and the district court s power to enforce that award provides the requisite judicial imprimatur. Because McAfee is a prevailing party under § 1988, we must determine whether the attorney s fee award is a reasonable one. C. We review for abuse of discretion a district court s award of attorney s fees, but, we will only reverse such an award if the district court is clearly wrong or has committed an error of law. Brodziak v. Runyon, 145 F.3d 194, 196 (4th Cir. 1998). The proper calculation of an attorney s fee award involves a three-step process. First, the court must determine the lodestar figure by multiplying the number of reasonable hours expended times a reasonable rate. Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235, 243 (4th Cir. 2009). what is reasonable in terms of hours expended To ascertain and the rate charged, the court is bound to apply the factors set forth in Johnson v. Georgia Highway Express Inc., 488 F.2d 714, 717 19 13 (5th Cir. 1974). 5 Id. at 243 44. fees spent for hours successful ones. some percentage on unsuccessful Id. at 244. of the Next, the court must subtract claims unrelated to Finally, the court should award remaining amount, degree of success enjoyed by the plaintiff. depending Id. on the Although the district court in this case adequately performed the first two steps, it erred on the third. That is, it overstated McAfee s success. 6 5 Our Court has characterized the twelve Johnson factors as follows: (1) The time and labor expended; (2) the novelty and difficulty of the questions raised; (3) the skill required to properly perform the legal services rendered; (4) the attorney s opportunity costs in pressing the instant litigation; (5) the customary fee for like work; (6) the attorney s expectations at the outset of the litigation; (7) the time limitations imposed by the client or circumstances; (8) the amount in controversy and the results obtained; (9) the experience, reputation, and ability of the attorney; (10) the undesirability of the case within the legal community in which the suit arose; (11) the nature and length of the professional relationship between attorney and client; and (12) attorneys fees awards in similar cases. See Barber v. Kimbrell s Inc., 577 F.2d 216, 226 n.28 (4th Cir. 1978) (adopting twelve factors for determining the reasonableness of attorney s fees that Fifth Circuit identified in Johnson). 6 Boczar argues on appeal that McAfee secured only a nominal award from the jury, and so the district court should not have awarded an attorney s fee at all. This contention fails, however, because the damages award, though small in dollar amount, is not nominal. An award of nominal damages signifies that a plaintiff has established a violation of his (Continued) 14 1. The Supreme Court has indulged a strong presumption that the lodestar number represents a reasonable attorney s fee. Court recently explained that this presumption can only The be overcome in those rare circumstances where the lodestar does not adequately take into account a factor that may properly be considered in determining a reasonable fee. See Kenny A. ex rel. Winn, 130 S. Ct. 1662, 1673 (2010). Perdue v. Consistent with the prescribed methodology, the district court addressed the attorney s fee issue by calculating the lodestar number. In so doing, the court relied on the Johnson factors to determine the applicable multipliers. The Opinion s application of the Johnson factors warrants a brief discussion. As the district court recognized, we have reviewed attorney s fee awards primarily by use of the lodestar method, with substantial reliance on the Johnson factors, sometimes to inform the calculation of the lodestar, sometimes to make upward or downward adjustments to it, and sometimes for both purposes. 906 F. Supp. 2d at 490. The Opinion explained, right but has not proved actual loss. See Farrar v. Hobby, 506 U.S. 103, 112 (1992). Here, the damages awarded represented the entirety of McAfee s out-of-pocket expenses. McAfee, 906 F. Supp. 3d at 503. As such, the jury s award cannot be classified as nominal. 15 however, that unquestioning reliance on Johnson is not justified in the post-Perdue world because that Supreme Court decision teaches so clearly that departures from the lodestar figure are to occur rarely and only in extraordinary cases. Id. at 491. Moreover, as the Opinion relates, the Perdue Court emphasized that an enhancement may not be awarded based on a factor that is subsumed in the lodestar calculation. 130 S. Ct. at 1673). Id. (quoting Perdue, Accordingly, the court determined that its consideration of certain of the Johnson factors was foreclosed by the lodestar calculation. See id. at 490. At the outset, the district court decided that the number of hours reasonably expended by McAfee s lawyers the first multiplier in the lodestar calculation encompasses at least three Johnson factors Factor 1 (time and labor expended), Factor 2 (novelty and difficulty of question raised), and Factor 7 (time limitations imposed by the client or circumstances). See id. at 492. As such, those three factors did not warrant further consideration in calculating the attorney s fee award. The court then explained that the reasonable hourly rate the second multiplier in the lodestar calculation subsumes five additional properly Johnson perform opportunity cost); factors: legal Factor Factor services); 5 3 (skill Factor (customary 4 fee); required to (attorney s Factor 6 (attorney s expectations at outset of litigation); and Factor 9 16 (experience, reputation, and ability of attorney). a result, according to the court, those five See id. factors As also collapse into the lodestar calculation. Ultimately, pursuant to the reserved court s lodestar analysis, Perdue four factors for use in adjusting the lodestar fee amount: (amount in controversy (undesirability of case and results within Johnson Factor 8 Factor 10 community); Factor 11 legal obtained); (nature and length of professional relationship between attorney and client); and Factor 12 (attorneys fee awards in similar cases). We See id. district have indeed court s recognized analysis, to that, the consistent extent that with the of [the any Johnson factors] has already been incorporated into the lodestar analysis, we do not consider [those factors] a second time. E. Associated Coal Corp. v. Dir., OWCP, 724 F.3d 561, 570 (4th Cir. 2013) (citing Perdue, 130 S. Ct. at 1673). We have never ruled, however, that when certain Johnson factors have merged into the lodestar calculation, they are not to be otherwise considered to adjust the lodestar amount. Although some of our sister circuits agree that any Johnson factor subsumed in the lodestar calculation should in no other way affect the determination of an attorney s fee award, few have explicitly identified specific 17 factors to which such a principle might apply. 7 Fifth Circuit has held that a bankruptcy For example, the court abused its discretion in using four of the Johnson factors to justify its substantial upward departure from the lodestar because lodestar amount already accounted for those factors. of Fender, 12 F.3d 480, 488 (5th Cir. 1994). the See Matter And the Second Circuit recently held that a district court erred in adjusting the initial lodestar already included. figure on the basis of Johnson factors See Millea v. Metro-N. R.R. Co., 658 F.3d 154, 167 68 (2d Cir. 2011). In any event, we need not further assess or identify which of the Johnson calculations. factors might be subsumed by the In its Perdue decision, the Supreme Court was addressing the enhancement of a lodestar attorney s fee. Ct. at 1673. lodestar 130 S. In this case, however, the district court did not enhance the lodestar fee calculation it simply reduced that 7 At least three of our sister circuits have also evaluated the relationship between Perdue and Johnson. See, e.g., Black v. SettlePou, P.C., 732 F.3d 492, 502 (5th Cir. 2013) ( The lodestar may not be adjusted due to a Johnson factor that was already taken into account during the initial calculation of the lodestar. ); Millea v. Metro-N. R.R. Co., 658 F.3d 154, 167 (2d Cir. 2011) ( [A] court may not adjust the lodestar based on factors already included in the lodestar calculation itself because doing so effectively double-counts those factors. ); Anchondo v. Anderson, Crenshaw & Assocs., L.L.C., 616 F.3d 1098, 1103 (10th Cir. 2010) (determining that Perdue appears to significantly marginalize the twelve-factor Johnson analysis ). 18 calculation by $42,600. Predicated on these distinctions, we limit our analysis to ensuring that the court s application of the Johnson factors was a reasonable one and that it did not inappropriately weigh any particular factor. Returning to step one calculation of the lodestar fee amount we will not disturb the district court s determination of the lodestar multipliers. We explain further below. a. In her Fee Petition, McAfee requested an award for 996.7 hours of legal work by her lawyers. 496. McAfee, 906 F. Supp. 2d at The district court reduced the hours of her two lead attorneys by ten percent each, because they had used a block billing system (lumping tasks together in time entries rather than making such entries task-by-task). Id. at 500. The court also eliminated the hours recorded by the client originator because his time overlapped that of the lead attorneys. 501. Id. at Neither of the parties disputes these calculations, and they are not further addressed. In lawyers determining was unwillingness issues. whether reasonable, to the the entertain time expended by McAfee s Opinion referred to Boczar s settlement on the See McAfee, 906 F. Supp. 2d at 502. attorney s fee The court observed that failure to contemplate a settlement strategy makes for expensive litigation, and the 19 defendant must bear the consequences. taking her Id. at 501 02. settlement Boczar asserts that the court, by position into account, abused discretion and punished Boczar for her recalcitrance. argument falls short in two respects. has discretion to consider its Boczar s First, a district court settlement negotiations in determining the reasonableness of fees but it is not required to do so. Thomas v. Nat'l Football League Players Ass'n, 273 F.3d 1124, 1130 n.9 (D.C. Cir. 2001); see also Sands v. Runyon, 28 F.3d 1323, 1334 (2d Cir. 1994) (concluding that a district court can consider settlement offers in making a fee award). Second, although the court expressed disapproval of Boczar s apparent failure to seriously engage in settlement negotiations, the court did not alter its lodestar calculations to reflect that disapproval. The court simply observed that any prolonged litigation caused by a failure to settle would be subsumed in the time component of the lodestar calculation. Supp. 2d at 502 n.17. the settlement In other words, the court s assessment of negotiations could not impact on the lodestar calculation. court did not abuse McAfee, 906 F. its discretion have had a measurable In these circumstances, the in calculating the hours expended by McAfee s lawyers. b. McAfee's lead counsel charged an hourly rate of $585, and his senior associate charged $365 per hour. 20 McAfee, 906 F. Supp. 2d at 496. As the fee applicant, McAfee bore the burden of establishing the reasonableness of those hourly rates. Plyler v. Evatt, 902 F.2d 273, 277 (4th Cir. 1990). See A fee applicant is obliged to show that the requested hourly rates are consistent with the prevailing market rates in the relevant community for the type of work for which [s]he seeks an award. Id. The evidence we have deemed competent to show prevailing market rates includes affidavits of other local lawyers who are familiar both with the skills of the fee applicants and more generally with the type of work in the relevant community. Robinson, 560 F.3d at 245. Boczar contends that McAfee failed to provide the essential evidence on the hourly rate issue. The opinion, however, concluded that the affidavits of two experts were sufficient to substantiate the hourly McAfee more than has rates met her of McAfee s burden of lawyers, and establishing so the reasonable hourly rate for her counsel. McAfee, 906 F. Supp. 2d appear at 496. Although those rates would excessive to almost any lay observer, and some members of the judiciary would deem them exorbitant, the district court s contrary are entitled to our deference. 21 findings to the As a result, we are unable to disturb its finding that the requested hourly rates are reasonable. 8 2. After determining that the hours expended and the attendant rates requested by a lawyer for a prevailing party are reasonable, a court is obliged to subtract fees for hours spent on unsuccessful claims unrelated Grissom, 549 F.3d at 321. to the successful ones. Of the three counts alleged, McAfee prevailed on solely her § 1983 claim, and then only with respect to a single category of damages, that is, general reimbursing McAfee for her out-of-pocket expenses. damages The other two categories of damages McAfee sought in connection with her § 1983 claim special damages plus punitive damages were wholly rejected. 9 8 We observe that the hourly rates of court-appointed counsel in federal criminal cases are substantially less than those being sought here. Compensation paid to appointed counsel for time expended in or out of court or before a magistrate judge may not exceed $125 per hour. See 7A Admin. Office of U.S. Courts, Guide to Judiciary Policy § 230.16(a) (2013). Furthermore, the maximums for representation of a criminal defendant in a federal felony case are $9700 for the trial court level and $6900 for the appeal. Id. § 230.23.20. Viewed from that perspective, McAfee s lawyers may be said to have received a hefty premium for their legal services. 9 See Slaughter v. Valleydale Packers, Inc., of Bristol, 94 S.E.2d 260, 266 (Va. 1956) (reciting that there are two general classes of compensatory damages . . . : (1) general damages, or those which the law presumes to be the natural, proximate, and necessary result of the [tort]; and (2) special damages, or (Continued) 22 By its Opinion, the district court agreed with McAfee s lawyers that a six percent reduction for prevailing on one of three counts in the complaint was a reasonable reduction because McAfee s counsel furtherance hours, on of a identified the the unsuccessful line-by-line that counts basis, McAfee, 906 F. Supp. 2d at 497. work from and the was performed deducted work in those performed. Moreover, the Opinion explained that the three counts in the complaint involved a common core of facts, and therefore [m]uch of counsel s time [was] devoted generally to the litigation as a whole. Hensley, 461 U.S. at 435). Reducing Id. at 502 (quoting the number of hours expended by six percent and multiplying it by the hourly rate, the court calculated McAfee s lodestar fee as $322,340.50. We will not dispute the district court s six percent reduction to account for the commonality of effort expended on unsuccessful Counts II and III. We are concerned, however, that those which, although a natural and probable consequence thereof, are not assumed to be necessary or inevitable, and must be shown by allegation and proof (citation and internal quotation marks omitted)). McAfee s complaint and contentions at trial identified three categories of damages being sought under § 1983: (1) general compensatory damages for out-of-pocket expenses incurred in defending state criminal charges; (2) special compensatory damages for deprivation of liberty, humiliation and embarrassment, inconvenience, and mental anguish; and (3) punitive damages. See J.A. 28 29 & 338 39. The jury instructions conveyed these categories of potential damages to the jury. See id. at 353. 23 the court failed to properly consider McAfee s failure to receive an award on her § 1983 claim, except for her undisputed out-of-pocket expenses. We will further explain those concerns. 3. In the final step before making an attorney s fee award under § 1988, a district court must consider the relationship between the extent of success and the amount of the fee award. The court will reduce the is limited in significant, litigation as a whole. the Supreme Court award if comparison the to relief, the scope Hensley, 461 U.S. at 439 40. has recognized that the extent however of the Indeed, of a plaintiff s success is the most critical factor in determining a reasonable attorney s fee under 42 U.S.C. § 1988. Id. at 436. What the court must ask is whether the plaintiff achieve[d] a level of success that makes the hours reasonably satisfactory basis for making a fee award. expended a Id. at 434. Although McAfee s success in recovering her general out-ofpocket expenses must be accorded respect, it does not justify a fee award of over $300,000 approximately 109 times the verdict when McAfee s failure to recover any special compensatory damages, or any punitive damages at all, is taken into account. Though Congress intended § 1988 fee awards to be adequate to attract competent counsel, it also wanted to avoid produc[ing] windfalls to attorneys. City of Riverside v. Rivera, 477 U.S. 24 561, 580 (1986). The district court s erroneous view of McAfee s success best illustrated by comparing McAfee s lofty expectations with the jury s paltry damages award produced an excessive fee award that would, in our view, constitute a windfall. a. We have recognized that, [w]hen considering the extent of the relief obtained, we must compare sought to the amount awarded. 199, 204 (4th Cir. 2005). part of the excessive. example, success she the amount of damages Mercer v. Duke Univ., 401 F.3d If a § 1983 plaintiff achieves only sought, the lodestar amount may See Farrar v. Hobby, 506 U.S. 103, 114 (1992). in Farrar, the plaintiffs sought $17 million be For in compensatory damages, but the jury awarded only the meager sum of one dollar. Id. Because the district court failed to compare the plaintiff s damages request with the nominal jury verdict, the Court reversed a fee award of $280,000. 115 16. Id. at In her concurrence, Justice O Connor elaborated: [A] substantial difference between the judgment recovered and the recovery sought technical. added). suggests that the victory is in fact purely Id. at 121 (O Connor, J., concurring) (emphasis In Farrar, the plaintiff asked for a bundle ($17 million) and got a pittance ($1). 25 Id. at 120. As such, the Court ruled that any award of attorney s fees was unjustified. Id. at 116. To accurately gauge McAfee s success, the district court, in accordance with Mercer and Farrar, should have compared what she sought with what was awarded. Although McAfee downplays her attempts to recover anything beyond her out-of-pocket expenses, the record below suggests her pursuit of a bigger payday was sincere, even pointed. Indeed, McAfee conceded at trial that [t]here are out-of-pocket expenses[, b]ut that s not what this case is really requested about. special J.A. compensatory 338. In damages particular, for McAfee deprivation of liberty, great inconvenience, great insult and humiliation, and mental anguish. Id. at 338 39. Counsel for McAfee rhetorically inquired of the jury, What is the right number to compensate Ms. McAfee? Something else? added). Is it $50,000? Is it something more? Is it $500,000? Id. at 339 (emphasis McAfee s arrest, according to her lawyers, caused her to lose weight and forgo sleeping, diminishing her energy. id. See McAfee s lawyers therefore strongly encouraged the jury to compensate her for these special injuries. See id. In the face of McAfee s effort to secure a damages verdict of $500,000 or even something more, the jury awarded only $2943.60. It is also important to our analysis that McAfee strongly advocated for a punitive damages 26 award. At trial, McAfee s lawyer supported the effort by stressing that deprivation of [her] liberty calls for some punishment upon the wrongdoer. J.A. 338 39 (emphasis added). And the jury fully understood that it could award punitive damages, for both punishment and deterrence. See J.A. 355 56. But, as Justice Powell explained in a § 1988 setting, [w]here recovery of private damages is the purpose of a civil rights litigation, a district court, in fixing fees, is obligated to give primary consideration to the amount of damages awarded as compared to the amount sought. Rivera, 477 U.S. at 585 (Powell, J., concurring). Put simply, the jury verdict was puritanically modest, and the attorney s fee award fails to reflect that reality. b. In justifying its award of attorney s fees, the Opinion accorded great weight to the deterrent effect of the judgment and the rights. verdict s reaffirmation of McAfee s Fourth See McAfee, 906 F. Supp. 2d at 505. Opinion, the verdict vindicated Amendment According to the important civil and constitutional rights that cannot be valued solely in monetary terms. ruling, Id. at 503 (quoting Rivera, 477 U.S. at 574). the reasonable citizens of court and explained necessary Virginia, a to most that the vindicate, important hours for expended McAfee right and secured Fourth Amendment of the United States Constitution. 27 In so Id. were other by the The jury s forbearance of a punitive damages award, however, reveals that deterrence and vindication may not be so important here. The point of punitive relief is to punish what has occurred and to deter its repetition. Co. v. Haslip, 499 U.S. 1, 21 (1991). Pac. Mut. Life Ins. Because the jury did not approve punitive damages, the court s reliance on deterrence and vindication in substantially its calculation undermined. 10 Cf. of McAfee s Rivera, 477 success U.S. at is 595 (Rehnquist, J., dissenting) ( In short, this case shares none of the special aspects of certain civil rights litigation [that] would justify an award of attorney s fees totally divorced from the amount of damages awarded by the jury. ). The Supreme Court has rejected the proposition that a § 1988 fee award must invariably be proportionate to the amount of damages a civil rights Rivera, 477 U.S. at 574. plaintiff actually recovers. See In Rivera, the Court affirmed an attorney s fee award of $245,456, which was slightly in excess 10 In Lewis v. Kendrick, 944 F.2d 949 (1st Cir. 1991), the plaintiff sought $300,000 in damages and only recovered $1000. Id. at 951. The plaintiff initially requested $132,778 in attorney s fees, id. at 951 n.1, of which the district court awarded $49,685.90. Id. at 951. The court of appeals rejected the fee award, concluding that [t]o turn a single wrongful arrest into a half year s work, and seek payment therefor, with costs, amounting to 140 times the worth of the injury, is, to use a benign word, inexcusable. Id. at 956. The Court conceded, however, that had there been punitive damages found, attorney s fees would have been another matter. Id. at 954. 28 of seven times the plaintiff s recovery this case, however, we cannot compensatory and See id. at 565-67. punitive damages, amounting to $33,350. of In ignore the pronounced disproportionality between the verdict for less than $3000, and the fee award more than 100 times that amount. may well be unprecedented in this Circuit, Such a disparity notwithstanding Mercer, which affirmed an award of attorney s fees amounting to almost $350,000 on a verdict for nominal compensatory damages of just $1. The plaintiff in Mercer, though, was also found entitled to $2,000,000 in punitive damages, see 401 F.3d at 202, rendering the fee award a fraction not a multiple of the damages obtained. 11 Although a substantial disproportionality between a fee award and a verdict, standing alone, may not justify a reduction in attorney s fees, a lack of litigation success will. In short, the limited success achieved by McAfee reflected by the jury s decision not to award anything for deprivation of liberty, great inconvenience, great insult and humiliation, and mental anguish, or make an award of punitive damages undermines the attorney s fee award being appealed. 11 The punitive damages award in Mercer was later vacated on the basis of Barnes v. Gorman, 537 U.S. 181 (2002), because punitive damages are not legally available for private actions under Title IX. Mercer, 401 F.3d at 202. 29 D. Because the district court overstated McAfee s degree of success, it erred in not making an attorney s fee award that would properly reflect her success in this case. Under such circumstances, we typically would remand this case for further work by the recognized, district however, court that and [a] the lawyers. request for We have also attorney s fees should not result in a second major litigation. Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 181 (4th Cir. 1994) (citing Hensley, 461 U.S. at 437 n.12). Consistent with Rum Creek, and to avoid further expense and the nonessential use of judicial resources associated with remand proceedings and other appeals, we are satisfied to vacate the attorney s fee award and direct that it be reduced by approximately two-thirds, that is, to $100,000, exclusive of costs. attorney s fees [t]o avoid See id. (modifying award of further litigation expenses that would follow a remand and the risk of yet a fourth appeal ). III. Pursuant to the foregoing, we affirm the judgment with respect to the verdict, vacate the attorney s fee award, and 30 direct that an attorney s fee award of $100,000, exclusive of costs, be entered by the district court on remand. No. 13-1356 AFFIRMED No. 13-1088 AFFIRMED No. 12-2481 VACATED AND REMANDED WITH INSTRUCTIONS 31