Robert W. Otto v. City of Boca Raton, Florida
Robert W. Otto v. City of Boca Raton, Florida
Opinion
USCA11 Case: 24-10478 Document: 50-1 Date Filed: 10/20/2025 Page: 1 of 27
NOT FOR PUBLICATION
In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 24-10478 Non-Argument Calendar ____________________
ROBERT W. OTTO, JULIE H. HAMILTON, Plaintiffs-Appellants-Cross Appellees, versus
CITY OF BOCA RATON, FLORIDA, Defendant-Appellee-Cross Appellant, COUNTY OF PALM BEACH, FL, Defendant-Appellee. ____________________ Appeals from the United States District Court for the Southern District of Florida D.C. Docket No. 9:18-cv-80771-RLR ____________________
Before JILL PRYOR, GRANT, and BRASHER, Circuit Judges. USCA11 Case: 24-10478 Document: 50-1 Date Filed: 10/20/2025 Page: 2 of 27
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PER CURIAM: Dr. Robert Otto and Dr. Julie Hamilton appeal the district court’s order granting in part their motion for prevailing-party costs pursuant to 42 U.S.C. § 1988. We vacate the district court’s judgment and remand with instructions for the court to increase the award of attorney’s fees to $884,374.77, for a total award of costs in the amount of $885,034.69. I. Otto and Hamilton are marriage and family therapists li- censed to practice mental health counseling in Florida. They sued Palm Beach County and the City of Boca Raton in the West Palm Beach division of the Southern District of Florida, alleging that or- dinances passed by the County and City prohibiting “Sexual Orien- tation Change Efforts” (SOCE) counseling violated their own and their clients’ First Amendment rights. They sought declaratory and injunctive relief as well as monetary damages. The plaintiffs were represented by attorneys associated with Liberty Counsel, a non- profit organization with an office in Orlando, Florida. Initially, the district court denied the plaintiffs’ motion for a preliminary injunction prohibiting enforcement of the challenged ordinances. But the plaintiffs appealed that order, and we reversed, holding that the ordinances violated the First Amendment. Otto v. City of Boca Raton, 981 F.3d 854, 859, 872 (11th Cir. 2020). On re- mand, after the district court entered a preliminary injunction con- sistent with the mandate of this Court, the defendants each made offers of judgment under Rule 68 of the Federal Rules of Civil USCA11 Case: 24-10478 Document: 50-1 Date Filed: 10/20/2025 Page: 3 of 27
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Procedure. See Fed. R. Civ. P. 68(a). The plaintiffs settled their claims against the defendants by accepting the offers, and the dis- trict court entered its final judgment in the plaintiffs’ favor on all their claims. The plaintiffs then moved for an award of attorney’s fees and costs, pursuant to 42 U.S.C. § 1988. They sought $2,115,018 in at- torney’s fees ($1,410,012 for approximately 2,275 hours billed at current rates, plus a 150% enhancement to account for the “unde- sirability” of the case) and $12,864.30 in nontaxable expenses, for a total award of $2,127,882.30. The defendants objected to several components of the fee application, including the request for cur- rent rates; the inclusion of time billed for preparing the fee applica- tion, which the defendants contended was excluded by the Rule 68 offers of judgment; the proposed 150% multiplier; and some of the requested expenses. The magistrate judge agreed with most of the defendant’s objections and entered a report recommending that the district court grant the application in part and deny it in part. The district court adopted the magistrate judge’s report and rec- ommendation in its entirety, awarding the plaintiffs $736,227.53 in attorney’s fees and $659.92 in expenses. The plaintiffs now appeal that order. II. We review a “district court’s award of attorneys’ fees and costs for abuse of discretion, revisiting questions of law de novo and reviewing subsidiary findings of fact for clear error.” Atlanta J. & Const. v. City of Atlanta Dep’t of Aviation, 442 F.3d 1283, 1287 (11th USCA11 Case: 24-10478 Document: 50-1 Date Filed: 10/20/2025 Page: 4 of 27
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Cir. 2006). A district court abuses its discretion if it applies the wrong legal standard, follows the wrong procedure, bases its deci- sion on clearly erroneous factual findings, or makes a clear error of judgment. Sierra Club v. Hankinson, 351 F.3d 1358, 1361 (11th Cir. 2003); Robinson v. Tyson Foods, Inc., 595 F.3d 1269, 1273 (11th Cir. 2010). III. Under 42 U.S.C. § 1988(b), courts have the discretion to award costs, including “a reasonable attorney’s fee,” to the prevail- ing party in a civil rights action. A reasonable attorney’s fee is cal- culated by multiplying “the number of hours reasonably expended on the litigation” by a “reasonable hourly rate.” Blum v. Stenson, 465 U.S. 886, 888 (1984). This “lodestar” method should result in “an award that roughly approximates the fee that the prevailing at- torney would have received if he or she had been representing a paying client who was billed by the hour in a comparable case.” Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 551 (2010) (emphasis in the original). There is a “strong presumption” that the lodestar figure constitutes a reasonable attorney’s fee, “but that presump- tion may be overcome in those rare circumstances in which the lodestar does not adequately take into account a factor that may properly be considered in determining a reasonable fee.” Id. at 554. The fee applicant bears the burden of establishing entitle- ment to attorney’s fees, the number of compensable hours, and the applicable hourly rate. Norman v. Hous. Auth. of City of Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988). In determining the amount of USCA11 Case: 24-10478 Document: 50-1 Date Filed: 10/20/2025 Page: 5 of 27
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an attorney-fee award, trial and appellate courts may rely on their own “knowledge and experience concerning reasonable and proper fees and may form an independent judgment either with or without the aid of witnesses as to value.” Id. (quotation omitted). The parties here agree that Otto and Hamilton were entitled to attorney’s fees and other costs as prevailing parties, but they dis- pute various aspects of the district court’s award, including the number of hours awarded, the hourly rates deemed reasonable, the failure to apply a “multiplier” to the lodestar award, and the denial of certain expenses. We consider each challenged aspect of the award in turn. A. We begin with the plaintiffs’ arguments regarding the num- ber of billable hours the district court determined to be reasonable. The plaintiffs argue that the district court improperly denied their requests for “fees-on-fees” and travel time, and unreasonably re- duced the remaining hours billed by 25%, for an overall reduction of 33.4%. 1. Ordinarily, the prevailing party in a civil rights action like this one is entitled to “fees-on-fees”—fees incurred when litigating the amount of an attorney-fee award under § 1988(b). Villano v. City of Boynton Beach, 254 F.3d 1302, 1309 (11th Cir. 2001). But a party may limit or waive his entitlement to § 1988 attorney’s fees as part of a settlement agreement or consent judgment. See Evans v. Jeff D., 475 U.S. 717, 736–38 (1986); Pottinger v. City of Miami, 805 USCA11 Case: 24-10478 Document: 50-1 Date Filed: 10/20/2025 Page: 6 of 27
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would “be established in separate proceedings following entry of final judgment in this action.” The language of the defendants’ offers of judgment was not ambiguous. By accepting the offers, the plaintiffs agreed that the defendants’ liability for costs, including attorney’s fees, would be limited to those costs “accrued to date”—that is, to the date of the offer. The offers further specified that the judgment for damages and costs “accrued to date” would fully resolve the plaintiffs’ claims, including their claims for attorney’s fees. The plaintiffs argue that the defendants should not be per- mitted to concede that the plaintiffs are entitled to attorney’s fees, fail to specify an exact amount of those fees in their offers, and then vigorously dispute the amount of those fees while refusing to pay the costs incurred in responding to their objections. But those were the terms of the offers that the plaintiffs accepted—the offers spec- ified a cut-off date (the date of the offer) for the accrual of attorney’s fees that would be included in the judgment, and both the offers and the formal notices of acceptance recognized that additional lit- igation would be required after that date for the amount of fees to be “determined by the Court.” The district court did not err in its interpretation of the offers of judgment or abuse its discretion in excluding attorney’s fees incurred after the date of the offers from the costs awarded in the judgment. The plaintiffs do not contest the district court’s determination that 169.5 hours were billed after the defendants’ offers of judgment, so we accept that calculation. USCA11 Case: 24-10478 Document: 50-1 Date Filed: 10/20/2025 Page: 8 of 27
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2. Next, the plaintiffs argue that the district court abused its dis- cretion by excluding time billed by their attorneys for traveling from Liberty Counsel’s office in Orlando to Palm Beach County where the lawsuit was filed, along with the associated travel ex- penses. They contend that it was reasonable for them to hire out- of-town attorneys and compensate them for their travel because no local firm had experience litigating SOCE cases or would be willing to represent such controversial clients. Attorney travel time and expenses may be recoverable as costs under § 1988 if the travel is reasonably necessary to the litiga- tion. See Johnson v. Univ. Coll. of Univ. of Alabama in Birmingham, 706 F.2d 1205, 1208 (11th Cir. 1983); Dowdell v. City of Apopka, 698 F.2d 1181, 1191–92 (11th Cir. 1983). To meet his burden of showing that it was reasonably necessary to pay out-of-town counsel to travel to the place where the case was filed, a plaintiff generally “must show a lack of attorneys practicing in that place who are willing and able to handle his claims.” ACLU of Georgia v. Barnes, 168 F.3d 423, 437 (11th Cir. 1999). Otto and Hamilton have not met that burden here. To sup- port their position that no competent local attorneys were available to represent them, they state that Liberty Counsel represented the plaintiffs in six of the eight cases challenging SOCE bans around the country, and plaintiffs in the other two cases were represented by national nonprofit law firms based in western states. But even if we accept that no local attorneys had experience litigating SOCE USCA11 Case: 24-10478 Document: 50-1 Date Filed: 10/20/2025 Page: 9 of 27
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cases, that does not mean that no attorneys with the necessary skills and experience were available and willing to successfully rep- resent them in this case. This lawsuit was a constitutional challenge to government regulation of speech—the legal expertise required was in First Amendment free-speech law generally, not in SOCE counseling specifically. See Otto, 981 F.3d at 860–61 (“This is a case about what speech the First Amendment allows the government to ban, and under what circumstances.”); see also Barnes, 168 F.3d at 437–38 (vagueness challenge to statute prohibiting certain internet transmissions required counsel with knowledge of “basic First Amendment principles,” not expertise in the internet). The plaintiffs also contend that no local attorneys would have been willing to represent them because their protected speech was controversial and unpopular. They point to the affidavit of their lead counsel stating that plaintiffs looking for representation in controversial civil rights cases often turn to “national public in- terest groups like Liberty Counsel, the Christian Legal Society, or the ACLU.” Responding to the district court’s judicial notice that the Christian Legal Society, the ACLU, and multiple national law firms have branches in Palm Beach County, they argue that the ACLU has opposed SOCE counseling and some large law firms (lo- cated outside Palm Beach County) have represented amici support- ing SOCE bans. This argument misses the point. It is the plaintiffs’ burden to justify hiring out-of-town counsel by showing a lack of local at- torneys willing and able to represent them. See Barnes, 168 F.3d at USCA11 Case: 24-10478 Document: 50-1 Date Filed: 10/20/2025 Page: 10 of 27
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437. As the magistrate judge pointed out, Palm Beach County has a large legal community with a range of viewpoints and experi- ence, including multiple firms or organizations with the resources to take a civil rights case on a contingency-fee basis. The plaintiffs cannot meet their burden by theorizing that no competent attor- ney in that community would represent them because their speech was controversial—a feature of many, if not most, First Amend- ment free-speech cases. The district court did not abuse its discre- tion in rejecting this argument when the plaintiffs failed to show that they made any effort to find or hire qualified local counsel. The plaintiffs do not dispute the district court’s calculation that their attorneys billed 86.3 hours for the nonbillable travel, so we accept that figure. 3. The plaintiffs also argue that the district court abused its dis- cretion by applying a 25% across-the-board reduction to the billable hours remaining after eliminating post-offer-of-judgment time and travel time. We agree in part. Some reduction for improper and excessive billing was appropriate, but the district court’s choice of 25%—which amounted to more than 500 hours—was arbitrary and unwarranted under the circumstances. For purposes of calculating the lodestar attorney-fee award, “hours reasonably expended” by counsel means “billable hours— that is, work that would be paid for by a reasonable client of means seriously intent on vindicating the rights in issue.” Perkins v. Mobile Hous. Bd., 847 F.2d 735, 738 (11th Cir. 1988). When making a fee USCA11 Case: 24-10478 Document: 50-1 Date Filed: 10/20/2025 Page: 11 of 27
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request, counsel is expected to exercise “billing judgment” by ex- cluding from the lodestar calculation hours that are “excessive, re- dundant or otherwise unnecessary.” Norman, 836 F.2d at 1301 (quotation omitted). If counsel do not use billing judgment in pre- paring their fee application, “courts are obligated to do it for them.” Barnes, 168 F.3d at 428. When a fee application is so voluminous that an hour-by- hour review would be impractical, a district court may account for unnecessary or excessive billing by applying an across-the-board percentage reduction. Loranger v. Stierheim, 10 F.3d 776, 783 (11th Cir. 1994). But in doing so, the court “must do more than eyeball the request and if it seems excessive cut it down by an arbitrary percentage. It is obligated to articulate the decisions it made, give principled reasons for those decisions, and show its calculation.” Johnston v. Borders, 36 F.4th 1254, 1287 (11th Cir. 2022) (quotations omitted); see Loranger, 10 F.3d at 783 (district courts must “concisely but clearly articulate their reasons for selecting specific percentage reductions”). Here, the magistrate judge’s recommendation to reduce bill- ing by 25% was based on the defendants’ objections to vague billing terminology; excessive time spent drafting the initial pleadings, writing a settlement demand email, and preparing for oral argu- ment in this Court; “block billing”; and billing for clerical tasks or USCA11 Case: 24-10478 Document: 50-1 Date Filed: 10/20/2025 Page: 12 of 27
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other non-compensable activities. 1 But except for a few non-billa- ble activities (searching for potential plaintiffs, reviewing local rules, redundant representation at the plaintiffs’ depositions, and interacting with amici) amounting to about 40 hours, the magis- trate judge did not explain the value he assigned to each of these problems or how he calculated the 500-hour cut. On review, we cannot identify any billing defect or excess that could account for such a large reduction. The magistrate judge appeared to agree with the defend- ants’ assertion that plaintiffs’ counsel used vague terms like “draft- ing,” “preparing,” giving “attention to,” or “considering strategy” without further explanation, making it impossible to determine what tasks were billed for and whether those tasks were necessary to the litigation. To the extent that the district court accepted this representation, its unspecified reduction for “vague” billing entries was based on a clearly erroneous factual determination—nowhere in counsel’s billing records were any of the listed terms used “with- out further explanation.” Such terms may have little meaning if used alone, but with appropriate additional explanation they per- fectly describe the work lawyers are hired to perform, in language recognizable to any practicing attorney or reasonable paying client.
1 The magistrate judge also determined that a fee reduction was warranted for
11.6 hours billed for “exercis[ing] billing judgment.” Those hours were al- ready excluded from the fee calculation because they were billed after the de- fendants served their offers of judgment, as part of their request for “fees-on- fees.” The court abused its discretion by penalizing counsel twice for the bill- ing-judgment entries. USCA11 Case: 24-10478 Document: 50-1 Date Filed: 10/20/2025 Page: 13 of 27
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Pulling examples from plaintiffs’ counsel’s bills, “[c]ontinued draft- ing of motion for preliminary injunction,” “prepare initial disclo- sures,” and “[a]ttention to preparing search terms and identifying document custodians for discussion with defense counsel in re- sponse to discovery requests” all describe the billed task in suffi- cient detail for the district court (or a client) to evaluate the neces- sity of the task and whether the time billed for the task was reason- able. No reduction for vague billing terms was warranted. The magistrate judge also based the 25% reduction in part on plaintiffs’ counsel’s excessive billing for preparing the complaint and motion for preliminary injunction (105 hours), preparing and sending a five-paragraph settlement demand email (1.3 hours), and preparing for oral argument in this Court (124 hours). We agree that the hours billed for the initial pleadings and oral argument preparation were excessive—as the defendants pointed out, the in- itial pleadings were identical in many respects to a complaint and motion for preliminary injunction that were filed by the same at- torneys in a similar lawsuit six months earlier. See Vazzo v. City of Tampa, No. 8:17-cv-02896 (M.D. Fla. Dec. 4, 2017). And although we appreciate and encourage counsel’s thorough preparation for oral argument (including the participation of multiple attorneys in a moot court session), 15-plus eight-hour days of attorney time for oral argument preparation—not including briefing or travel—is more than a reasonable paying client would accept. The magistrate judge did not explain how much he reduced the time billed for these activities, so we do our own calculation and apply a 50% re- duction to the hours billed for the initial pleadings and a 40% USCA11 Case: 24-10478 Document: 50-1 Date Filed: 10/20/2025 Page: 14 of 27
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reduction to the time spent in preparation for oral argument. The plaintiffs did not oppose a reduction for drafting the settlement-de- mand email, so we cut the time billed for that activity by 20%. The magistrate judge also recommended cutting an unspec- ified number of hours for “block billing,” which is the practice of “billing multiple unrelated tasks in one billing entry.” Johnston, 36 F.4th at 1279 n.46. This practice is disfavored because it makes it “difficult, if not impossible, to calculate with any precision the number of hours an attorney devoted to a particular task.” Id. (quotation omitted). Block billing obstructs a court’s determina- tion of the number of hours reasonably expended on the litigation when a single billing entry includes both compensable and non- compensable tasks or when the time spent on one or more of the block-billed tasks may be excessive. Counsel seeking an award of attorney’s fees under § 1988 must present records showing the time spent on discrete claims, and “the general subject matter of the time expenditures ought to be set out with sufficient particularity so that the district court can assess the time claimed for each activ- ity.” Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1195–96 (11th Cir. 2002) (quotation omitted). The district court must determine a reasonable fee award even when the applicant’s supporting docu- mentation is inadequate, but in such cases the court may use its judgment and any reasonable method of calculation to determine how much—if any—of the billed time to cut. See Norman, 836 F.2d at 1303. USCA11 Case: 24-10478 Document: 50-1 Date Filed: 10/20/2025 Page: 15 of 27
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The billing records at issue here contain multiple block- billed entries. 2 But most of those entries do not impede the court’s task of calculating a reasonable fee award because they describe only closely related compensable activities billed in small blocks of time that are easily assessed for reasonableness. For example, an entry billing one hour and six minutes to “[p]repare for meet and confer regarding P[reliminary] I[njunction] discovery and briefing schedule; participate in meet and confer; [and engage in] follow up communication with all counsel regarding same” is block-billed, but it easily passes review for necessity and reasonableness. The same is true for a one-hour-and-twelve-minute block to “[r]eceive and review email correspondence from Hamilton re[garding] providing initial responses to discovery request; [and] review same and consider incorporation into responses.” Entries like these that do not include excessive, redundant, or otherwise unnecessary ac- tivities do not support a reduction in billable hours. See id. at 1301. Other block-billed entries are problematic, however, because they include nonbillable clerical activities such as electronic filing and service, organizing exhibits, scheduling, and contacting the court for updates. See Missouri v. Jenkins, 491 U.S. 274, 288 n.10 (1989) (“purely clerical or secretarial tasks” are not billable, even at
2 Some of the entries characterized by the defendants as block billing do not
meet our definition of the term because they describe simultaneous or over- lapping activities forming a single task. For example, we would consider re- viewing a case and considering its implications for the litigation to be a single task. The same goes for reviewing a motion or brief and considering response strategy. USCA11 Case: 24-10478 Document: 50-1 Date Filed: 10/20/2025 Page: 16 of 27
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a paralegal rate). As the magistrate judge noted, a reduction com- mensurate with the time spent on these noncompensable tasks was warranted, but striking every block-billed entry that included a clerical task was not. Because the magistrate judge did not explain how much time he deducted for nonbillable clerical activities, we must do our own calculation. By far the most frequently billed clerical activities were electronic filing and service, usually included in a block-billed entry for preparing the document to be filed or served. Based on our experience and the occasional separately billed filing or service entry, a deduction of ten to fifteen minutes for each entry that in- cluded filing or service—perhaps ten hours total—is appropriate. The records also contain billing for other clerical activities like cal- endaring, organizing the internal file, or contacting the court for updates, amounting to roughly 30 additional nonbillable hours. The magistrate judge’s unspecified reduction for block bill- ing also appears to have been based in part on potentially excessive internal conferencing or strategizing among the plaintiffs’ attor- neys. Some internal discussion is necessary and expected when multiple attorneys are assigned to a case, as is common in civil liti- gation. A reasonable client would expect to pay for its legal team to confer at each new stage of the case and about important hear- ings or documents, and for more frequent conferences between lead counsel and less senior attorneys for whom the lead attorney provides guidance and assigns tasks. Still, even after the reductions discussed above, we count more than 100 entries that include USCA11 Case: 24-10478 Document: 50-1 Date Filed: 10/20/2025 Page: 17 of 27
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discussion among Liberty Counsel’s legal team. Because the en- tries are block-billed, we are not able to calculate how much time was actually spent in internal discussion. Based on the number of entries and the subjects discussed, however, we conclude that the time likely was excessive, and that a deduction of approximately 15% of the conferencing time is appropriate. Lacking any sugges- tion from the district court or the parties as to how the time in conference should be calculated, we attribute 30 minutes to each block-billed internal discussion and apply a reduction of roughly eight hours. All told, the billing defects identified by the magistrate judge support a reduction of no more than 10% of the 2,019 hours re- maining after the court’s exclusions of time billed for travel to Palm Beach County and time billed after the defendants made their of- fers of judgment. We therefore vacate the district court’s order ap- plying a 25% reduction and remand with instructions to adjust the award as provided in this opinion. See Barnes, 168 F.3d at 431 (hold- ing that we have discretion to decide the proper number of hours to exclude in the first instance). B. We turn next to the parties’ arguments regarding the district court’s determination of the hourly rates to be used in its lodestar calculation. The plaintiffs argue that the district court erred in us- ing historical rates for work that was performed in 2018 and 2019, rather than using current hourly rates for the entire litigation, and by using the wrong market to determine the historical rates that it USCA11 Case: 24-10478 Document: 50-1 Date Filed: 10/20/2025 Page: 18 of 27
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awarded. The City cross-appeals, arguing that the district court abused its discretion by refusing to reduce the hourly rates for three of the plaintiffs’ attorneys who were not members of the district court’s bar and did not move to be admitted pro hac vice. “A reasonable hourly rate is the prevailing market rate in the relevant legal community for similar services by lawyers of reason- ably comparable skills, experience, and reputation.” Norman, 836 F.2d at 1299. The district court’s determination of what constitutes a reasonable hourly rate is a finding of fact that we review for clear error only. Barnes, 168 F.3d at 436. 1. The plaintiffs argue that attorney’s fees awarded under § 1988 should be calculated using current hourly rates to compen- sate the attorneys for waiting until the end of the case for payment. They point to our decision in Norman v. Housing Authority of City of Montgomery, in which we approved the then-common practice of compensating for a delay in payment by awarding current rather than historical rates. 836 F.2d at 1302. This Court’s practice changed, however, following Perdue v. Kenny A. ex rel. Winn, in which the Supreme Court held that enhancements to compensate for delay in payment should be reserved for “extraordinary circum- stances in which an attorney’s performance involves exceptional delay in the payment of fees.” 559 U.S. 542, 556 (2010). We ex- plained shortly after Perdue that “[o]ur existing circuit law on this subject must be read in light of, and modified to fit, the holdings in Perdue about enhancements for the delay in payment of expenses USCA11 Case: 24-10478 Document: 50-1 Date Filed: 10/20/2025 Page: 19 of 27
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and fees.” Gray ex rel. Alexander v. Bostic, 613 F.3d 1035, 1044 (11th Cir. 2010). An award of current hourly rates for the entire litigation may still be appropriate if “extraordinary circumstances, such as unjustifiable conduct by the defense, caused exceptional delay in the payment of fees justifying an enhancement on that ground.” Id. at 1045. We cannot say that the district court abused its discretion by not awarding current hourly rates for the duration of the litigation here. We recognize that the case took almost five years from filing to judgment, with the plaintiffs’ interlocutory appeal occupying three-and-a-half years of that time. That is longer than usual, but unfortunately not extraordinary for a civil case like this one with an appeal, oral argument, and petition for rehearing in this Court— or in any event, not so extraordinary that the district court made a clear error in judgment by refusing to award current rates for the delay. And although the City and County vigorously defended the case in the district court and on appeal, they did not engage in groundless disputes, fail to comply with discovery or scheduling orders, or otherwise unreasonably extend the time for decision in either court. Under the circumstances, the district court did not abuse its discretion by awarding historical rates for work per- formed from before the case was filed in June 2018 through the ap- pellate argument in February 2020, and current rates from Febru- ary 2020 through the defendants’ offers of judgment in January and February 2023. USCA11 Case: 24-10478 Document: 50-1 Date Filed: 10/20/2025 Page: 20 of 27
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2. The plaintiffs also take issue with the district court’s decision to use Liberty Counsel’s fee request filed in Vazzo v. City of Tampa, No. 8:17-cv-2896 (M.D. Fla. Nov. 2, 2019), to determine the appro- priate hourly rates for work performed in this case before February 2020. They point out that the Vazzo fee request was filed in a dif- ferent market—the Tampa division of the Middle District of Flor- ida—and they argue that by awarding the rates their attorneys sought in that case, the district court based its fee determination on the wrong legal market. They rely heavily on the magistrate judge’s comment in an unrelated case that in 2018, one of the “top civil litigators” in the county, described as “a senior partner from the West Palm Beach office of a national firm of over 1000 lawyers, who was admitted to the Florida Bar in 1987, charged $670 per hour for a highly contentious complex civil litigation in Palm Beach Circuit Court.” Kleiman v. Wright, No. 18-80176-CV, 2020 WL 1980601, at *3 (S.D. Fla. Mar. 17, 2020). As a rule, the “‘relevant market’ for purposes of determining the reasonable hourly rate for an attorney’s services is the place where the case is filed.” Barnes, 168 F.3d at 437 (quotation omit- ted). The fee applicant “bears the burden of producing satisfactory evidence that the requested rate is in line with prevailing market rates.” Norman, 836 F.2d at 1299. Meeting this burden requires more than testimony by the applicant that a requested fee is rea- sonable; “satisfactory evidence necessarily must speak to rates ac- tually billed and paid in similar lawsuits.” Id. The skill, experience, and reputation of the attorneys and the nature and difficulty of the USCA11 Case: 24-10478 Document: 50-1 Date Filed: 10/20/2025 Page: 21 of 27
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case are all relevant factors in determining the market rate for the services performed. See Brooks v. Ga. State Bd. of Elections, 997 F.2d 857, 870 (11th Cir. 1993). Under the clear error standard, we will not reverse a district court’s factual finding about the applicable market rates unless “after viewing all the evidence, we are left with the definite and firm conviction that a mistake has been commit- ted.” Silva v. Pro Transp., Inc., 898 F.3d 1335, 1339 (11th Cir. 2018) (quotation omitted); see Barnes, 168 F.3d at 436. The district court did not clearly err in finding that the hourly rates requested by plaintiffs’ counsel in the Vazzo litigation in November 2019 were reasonable for work performed in this case before February 2020. The Vazzo case involved the same plaintiffs’ attorneys litigating a nearly identical First Amendment challenge to a SOCE counseling ban. We are not convinced that the magis- trate judge’s reference to a higher rate charged by a senior attorney with an established reputation in the county, billing unknown cli- ents in a different, unspecified complex civil case on behalf of a large private law firm should outweigh evidence of the rates re- quested by the same attorneys doing the same work as in this case. 3. In its cross-appeal, the City argues that the hourly rates awarded were too high for three of the Liberty Counsel attorneys who were not admitted to the district court’s bar and did not move for leave to appear pro hac vice. They contend that the district court’s local rules required plaintiffs’ attorneys to move for admis- sion pro hac vice in order to practice in the district, and that the USCA11 Case: 24-10478 Document: 50-1 Date Filed: 10/20/2025 Page: 22 of 27
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attorneys who were not admitted should be compensated at para- legal rates. The local rules in the Southern District of Florida provide that only members of the district court’s bar “may appear as attor- neys before the Court, except when the Court permits an appear- ance pro hac vice.” S.D. Fla. L.R. 4(a). Once admitted pro hac vice, an attorney who is not a member of the court’s bar will nonetheless “be permitted to appear and participate in a particular case.” Id. R. 4(b)(1). According to the district court, its local rules did not require the plaintiffs’ attorneys who did not appear in court to move for pro hac vice admission. The court therefore awarded compensa- tion at attorney rates for research, drafting, hearing preparation, and other out-of-court attorney-level work performed by the non- admitted lawyers. This decision was well within the court’s discre- tion, especially given the “great deference” owed to a district court’s interpretation of its own local rules. Tobinick v. Novella, 884 F.3d 1110, 1120 (11th Cir. 2018) (quotation omitted). C. The plaintiffs contend that the district court should have en- hanced its lodestar award by 150% to account for the “undesirabil- ity” of the case. They acknowledge that the district court consid- ered the undesirability of the case as a factor in determining the lodestar rate, but they maintain that a “multiplier” is warranted be- cause civil rights litigation “stigmatizes” attorneys and often sub- jects them to “prolonged and vitriolic hostility.” Appellants’ brief USCA11 Case: 24-10478 Document: 50-1 Date Filed: 10/20/2025 Page: 23 of 27
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at 49–50 (quoting Gay Lesbian Bisexual Alliance v. Sessions, 930 F. Supp. 1492, 1497 (M.D. Ala. 1996)). The “lodestar figure includes most, if not all, of the relevant factors constituting a ‘reasonable’ attorney’s fee.” Perdue, 559 U.S. at 553 (quotation omitted). In this Circuit, district courts fre- quently consider the factors set out in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974), abrogated in part on other grounds by Blanchard v. Bergeron, 489 U.S. 87, 90–93 (1989), in deter- mining the lodestar award. Those factors include: (1) the court’s assessment of the time and labor required by the case, (2) the nov- elty and difficulty of the issues raised, (3) the skill required to liti- gate the case properly, (4) the necessity of forgoing other employ- ment by the attorney because of conflicts of interests or time limi- tations, (5) the customary fee for similar work in the community, (6) whether the fee is contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount of damages in- volved and the results obtained, (9) counsel’s experience, reputa- tion, and ability, (10) the “undesirability” of the case and any asso- ciated economic impact on the attorney’s practice, (11) the attor- ney’s professional history with the client and the impact of the re- lationship on the fee arrangement, and (12) fee awards in similar cases. 488 F.2d at 717–19. Except in “rare” or “exceptional” cases, “an enhancement may not be awarded based on a factor that is sub- sumed in the lodestar calculation.” Perdue, 559 U.S. at 552–53 (quo- tation omitted). USCA11 Case: 24-10478 Document: 50-1 Date Filed: 10/20/2025 Page: 24 of 27
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In arguing that they should receive an enhancement to the lodestar, the plaintiffs point to a district court decision from almost 30 years ago that described civil rights litigation as “very undesira- ble” and stated that working on such cases “stigmatizes an attor- ney.” Gay Lesbian Bisexual Alliance, 930 F. Supp. at 1497. Even ac- cepting that litigating civil rights claims on behalf of plaintiffs was once undesirable or stigmatizing, based on the number of civil rights cases filed in our Circuit in recent years, we do not think that the same is true for attorneys today. Regardless, even if civil rights cases as a class were as undesirable and stigmatizing as the plaintiffs contend, a trait common to all civil rights cases cannot support the plaintiffs’ claim that this is one of the rare circumstances when an enhancement for undesirability is warranted. As to the subject-matter of this case specifically, we have rec- ognized that SOCE bans target “speech that many find concern- ing—even dangerous.” Otto, 981 F.3d at 871. The plaintiffs point to defense counsel’s arguments in this case criticizing SOCE coun- seling to argue that they were entitled to an enhancement. The district court did not abuse its discretion in denying an enhance- ment here. See Blum, 465 U.S. at 896. Even when opposing counsel uses hyperbolic terms or makes occasionally overblown argu- ments, this is not enough to establish that a district court abused its discretion in denying an enhancement to the lodestar figure, par- ticularly in a case like this one where the court already incorporated consideration of the “undesirability” of advocating for the plain- tiffs’ unpopular speech. USCA11 Case: 24-10478 Document: 50-1 Date Filed: 10/20/2025 Page: 25 of 27
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D. Last, we turn to the plaintiffs’ argument that the district court abused its discretion by denying their request for legal re- search and shipping expenses. Expenses incurred in conducting the litigation may be recovered as part of an award of costs under § 1988. Dowdell, 698 F.2d at 1188, 1192. As with other costs, the recoverability of expenses “is determined by the necessities of the case.” Id. at 1191. Expenses that are reasonably necessary to the litigation should be awarded in full. See id. at 1190–92. But unnec- essary expenses must be excluded. See Barnes, 168 F.3d at 438–39. Here, the district court did not abuse its discretion by deny- ing counsel’s request for legal research and shipping expenses, be- cause the request did not show that those expenses were reasona- bly necessary to the litigation. To support their claim for these ex- penses, counsel submitted monthly Westlaw invoices for online le- gal research and FedEx invoices for several shipments. Each bill bore a client reference number corresponding to this litigation. Counsel also submitted an affidavit from one of the plaintiffs’ at- torneys, which stated that the “claimed expenses were necessary to [counsel’s] effective representation of Plaintiffs and are of a type routinely and ordinarily billed to clients.” These documents did not provide enough information for the district court to determine whether the expenses claimed were necessary to the litigation. The Westlaw invoices did not show the topics researched, and counsel provided no information linking the Westlaw transaction charges to specific litigation activities. USCA11 Case: 24-10478 Document: 50-1 Date Filed: 10/20/2025 Page: 26 of 27
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Similarly, the FedEx bills did not indicate what was shipped or why, and counsel did not provide information linking the shipments to any specific aspect of the litigation. We therefore affirm the district court’s exclusion of these expenses. IV. Plaintiffs’ counsel’s fee request included some billing that was “excessive, redundant or otherwise unnecessary,” but the dis- trict court’s reduction of 33.4% of the hours requested in plaintiffs’ motion was unwarranted. Norman, 836 F.2d at 1301. Based on our assessment that counsel improperly billed or overbilled for various tasks (as discussed above), we conclude that a 20% reduction is ap- propriate. We reduce the billing for each attorney, law clerk, and paralegal proportionally, and we award the blended hourly rate cal- culated by the district court, resulting in the following distribution: Name Hours Hours Hourly Total Requested Awarded Rate Richard Mast 17.2 13.8 $325 $4,485 Mary McAlister 30.7 24.6 $375 $9,225 Daniel Schmid 464.2 371.4 $462.50 $171,772.50 Horatio Mihet 710.8 568.6 $562.50 $319,837.50 Roger Gannam 653.8 523.0 $562.50 $294,187.50 Mathew Staver 119.2 95.4 $552.00 $52,660.80 Paralegal 48.8 39.0 $117.73 $4,591.47 Law Clerk 230.1 184.1 $150 $27,615.00 2,274.8 1819.9 $884,374.77 USCA11 Case: 24-10478 Document: 50-1 Date Filed: 10/20/2025 Page: 27 of 27
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We vacate the district court’s order for costs and remand with instructions to increase the award of attorney’s fees to $884,374.77, with expenses in the amount of $659.92 bringing the total award to $885,034.69. VACATED and REMANDED with instructions.
Reference
- Status
- Unpublished