A three-way split over whether this Title VII plaintiff, who partially prevailed at trial, is entitled to fees for an intervening appeal and a second jury trial. The opinion for the court by Judge Tachaffirms the award of $367,689.00 below, holding (1) that fees could be awarded for the second trial, despite that the jury entered a defense verdict (joined by Judge Gorsuch); and (2) that fees could not be awarded for the first appeal, because the plaintiff failed to apply in the first instance to the Tenth Circuit (joined by Judge McKay).
Flitton v. Primary Residential Mortgage, Inc., No. 09-4108 (10th Cir. Aug. 5, 2010): in 2003, the plaintiff commenced a suit for “discriminatory and retaliatory discharge in violation of Title VII, and seeking
both compensatory and punitive damages.”
Trial one: The district court grants JMOL on discrimination before the jury got the case, then granted JMOL after the jury awarded $50,000 in compensatory damages for retaliation.
Appeal one: the Tenth Circuit remanded the case for a new trial on plaintiff’s discrimination and punitive damages claims, and reinstated the jury’s verdict on the retaliation claim.
Trial two: The jury found in favor of PRMI on the discrimination and punitive damages claims, and the district court awarded her $354,703.05 in back pay based on the first jury’s verdict in her favor.
Appeal two: The parties cross-appeal the award of fees for the second jury trial (defendant PRMI) and denial of appellate attorney fees on “jurisdictional” grounds (plaintiff Flitton). Judge Tacha’s opinion (II.A) affirms the award of $367,689 fees.
“The district court concluded that Ms. Flitton’s successful retaliation claim and her unsuccessful discrimination and punitive damages claims were interrelated. We agree. As the district court pointed out, in the second jury trial Ms. Flitton pursued punitive damages for the retaliation claim on which she had obtained a jury verdict in the first trial. In these circumstances, it is difficult to distinguish between the time Ms. Flitton’s attorneys spent on the retaliation claim generally and the time they spent on her claim for punitive damages based on PRMI’s unlawful retaliation. . . . Furthermore, during the second jury trial, Ms. Flitton alleged that her termination was discriminatory. This claim concerns a crucial underlying fact that was also addressed in Ms. Flitton’s successful retaliation claim – the reason for her termination. Thus, the unsuccessful claims raised by Ms. Flitton in the second jury trial were not distinct in all respects from the successful claims she pursued in the first jury trial, and the district court did not abuse its discretion by refusing to exclude the fees accrued during the second jury trial from Ms. Flitton’s ultimate fee award.”
The court also affirms the district court’s decision not to knock down the fees on account of limited success.
“Here, the district court rejected PRMI’s request for a reduction of the fee award based on Ms. Flitton’s level of success, concluding that Ms. Flitton ‘obtained substantial success from the first jury trial,’ and that ‘she obtained a substantial amount of damages.’ Flitton v. Primary Residential Mortgage, Inc., No. 2:03-CV-481-DAK, 2009 WL 13572006, at *5, *8 (D. Utah May 7, 2009). Although Ms. Flitton’s ultimate award did not approach the amount of damages she sought, her award of over $350,000 in this Title VII suit was not inconsequential.”
Judge McKay dissents from this holding, noting that while he agrees that the plaintiff ought to be compensated for the first, partially winning trial, the second trial was for naught: “I am not persuaded that Ms. Flitton should be further compensated for the completely unsuccessful pursuit of her punitive damages and
discrimination claims on remand. Following our decision on appeal, Ms. Flitton began what was, in effect, a second lawsuit on the remanded claims – an action in which she did not prevail.”
Judge Tacha’s opinion for the court also holds that by not submitting a claim for appellate attorney’s fee in the first instance to the Tenth Circuit, the plaintiff jurisdictionally forfeited her right to seek those fees in the district court, following Hoyt v. Robson Cos., Inc., 11 F.3d 983, 985 (10th Cir. 1993). Judge McKay concurs, though, noting that “although I find persuasive Judge Gorsuch’s argument that the rule stated in Hoyt would be more appropriately treated as a procedural rule rather than a jurisdictional barrier, I agree with Judge Tacha that we are not free to ignore our treatment in Hoyt of this issue as a jurisdictional one. this issue may warrant further consideration by the en banc court, but this panel is currently bound by Hoyt‘s holding that a district court lacks jurisdiction to award appellate fees in this type of case.”
Judge Gorsuch dissents, finding that the Hoyt decision used the term “jurisdiction” loosely and in dicta: “To be sure, Hoyt uses the word ‘jurisdiction[al]’ to describe the nature of its holding, though it does so in passing and without explanation. See 11 F.3d at 984-85. And the excessively exuberant use of the word ‘jurisdiction’ to mean many things other than the absence of constitutional or statutory power to adjudicate a matter is by now well known.” He treats the rule instead as one of administrative convenience, rather than a jurisdictional command. The dissent, moreover, considers the rule that petitions for appellate attorney’s fees be filed in the Tenth Circuit to be a trap for the unwary. “Given the mixed messages we’ve sent about the propriety of district courts awarding appellate fees, what is a plaintiff – or a district court – to do? . . . . Our mixed messages, then, leave a great many cases in a legal limbo.” The dissent would remand the decision for consideration in the first instance by the district court.
Given Judge McKay’s suggestion, infra, the plaintiff – if she does not settle this matter – may be well-advised to seek the en banc rehearing, as the rule as applied by Judge Tacha does not make very much sense and is contrary to the plain language of Title VII giving district courts discretion to award fees (42 U.S.C. § 2000e-5(k)), while making no mention of the courts of appeals.