UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GRIFFIN ROGERS,

Plaintiff-Appellant,

v. No. 98-2253

CITY OF VIRGINIA BEACH, VIRGINIA,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Henry C. Morgan, Jr., District Judge.

(CA-97-1073-2)

Argued: May 18, 1999

Decided: July 15, 1999

Before MICHAEL, MOTZ, and KING, Circuit Judges.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

ARGUED: Thomas Aquinas Woodley, MULHOLLAND &

HICKEY, Washington, D.C., for Appellant. Richard Jay Beaver,

Senior Attorney, CITY ATTORNEY'S OFFICE, Virginia Beach,

Virginia, for Appellee. ON BRIEF: Gregory K. McGillivary, MULHOLLAND & HICKEY, Washington, D.C., for Appellant. Leslie L.

Lilley, City Attorney, L. Steven Emmert, Senior Attorney, CITY

ATTORNEY'S OFFICE, Virginia Beach, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Griffin Rogers sued his employer, the City of Virginia Beach, challenging its overtime pay policies. The City attempted to settle the

case, making an offer of judgment that Rogers declined. The district

court subsequently granted summary judgment to Rogers. He then

sought attorneys' fees and costs against the City. The court made a

partial award of fees and costs, but denied Rogers's request for

amounts relating to litigation after the City's offer of judgment. Rogers appeals, and we vacate the fee order and remand for further consideration.

I.

Rogers is employed by the City of Virginia Beach as a firefighter.

In 1986 the City adopted a policy of granting compensatory time

("comp time") to employees in lieu of paying cash for overtime hours

worked. Employees could then use the comp time at a later date to

take paid leave.

Two aspects of the overtime policy are relevant to Rogers's lawsuit. First, the City imposed a cap on the maximum number of hours

of comp time that workers could accrue. It also gave department

heads the discretion to require employees to use their comp time so

as to avoid exceeding the specified limits. Department heads could

compel workers to use their comp time leave on days unilaterally chosen by the department. Second, the City also barred employees from

using their comp time when a day (or "leave slot") designated by the

department was already taken or when the City would have to pay

another worker overtime pay to fill in for the employee on leave.

Rogers sought to use some of his accrued comp time in the first

part of 1997, but only one day was available under the City's policy,

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a day that apparently was not suitable to Rogers. In June 1997 he was

forced to take 15 hours of leave to reduce his accrued comp time total

below the cap imposed by the City. Rogers filed an internal grievance, claiming that the City's comp time policies violated the Fair

Labor Standards Act (FLSA). After the fire department rejected his

grievance, Rogers sued the City in district court in November 1997.

He alleged that the City violated Section 207(o) of the FLSA, 29

U.S.C. § 207(o), in two ways: (1) by forcing employees to take

accrued comp time on dates unilaterally chosen by the City; and (2)

by denying requests to use comp time when leave slots were unavailable or when the City would have to pay overtime to a replacement

worker. Rogers sought back pay, liquidated damages, and a declaration that the City's policies violated federal law.

The City took steps to settle Rogers's lawsuit. It restored the 15

hours of comp time that Rogers had been forced to take in June 1997.

It also revised its overtime policy so that department heads could no

longer force employees to use their accrued comp time. However, it

did not change the policy of denying leave requests when a leave slot

was unavailable or when it would have to pay overtime to another

worker. In February 1998 the City made an offer of judgment pursuant to Rule 68 of the Federal Rules of Civil Procedure. The offer of

judgment listed the steps taken by the City to address Rogers's grievances. However, Rogers rejected the offer of judgment and continued

to prosecute his lawsuit against the City.

In April 1998 Rogers moved for summary judgment against the

City. The district court granted this motion, ruling for Rogers on both

of the FLSA violations he alleged. The court awarded him back pay,

liquidated damages, and reasonable attorneys' fees and costs. Rogers

submitted a petition seeking full recovery of $25,210 in attorneys'

fees and $2,311 in costs. However, the district court awarded only

$7,355 in attorneys' fees and $640 in costs. The court refused to

award any fees and costs incurred after the City made its offer of

judgment. It explained that the relief granted Rogers by the court "virtually mirrors the City's proposed settlement," so that "plaintiff's

counsel unreasonably expended time and labor" by continuing the litigation after receiving the City's offer. Rogers appeals the district

court's order limiting fees and costs, contending that he obtained

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additional benefits beyond the City's offer by continuing to prosecute

his lawsuit.

II.

The FLSA provides that the district court "shall, in addition to any

judgment awarded to the plaintiff or plaintiffs, allow a reasonable

attorney's fee to be paid by the defendant, and costs of the action."

29 U.S.C. § 216(b). As the express language of this provision suggests, the award of fees and costs to a prevailing plaintiff is mandatory under the FLSA. Burnley v. Short, 730 F.2d 136, 141 (4th Cir.

1984). A court, as a starting point, should calculate attorneys' fees by

multiplying a reasonable hourly rate by the number of hours reasonably expended on the case. Hensley v. Eckerhart , 461 U.S. 424, 433

(1983). It may then adjust the fee award up or down to take other considerations into account. Id. at 434. We have adopted the factors set

forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714,

717-19 (5th Cir. 1974), to determine whether the fee award should be

adjusted.* See Barber v. Kimbrell's, Inc., 577 F.2d 216, 226 n.28

(4th Cir. 1978). We review the reasonableness of the fee award for

abuse of discretion. Brodziak v. Runyon, 145 F.3d 194, 196 (4th Cir.

1998).

The district court reduced its award of attorneys' fees and costs to

Rogers based on two of the Johnson factors: (1) the time and labor

required and (2) the amount involved and the results obtained. The

court reasoned that its judgment order gave Rogers essentially what

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*These factors, sometimes called "the Johnson factors," were listed by

the Supreme Court in Hensley, 461 U.S. at 430 n.3:

(1) the time and labor required; (2) the novelty and difficulty of

the questions; (3) the skill requisite to perform the legal service

properly; (4) the preclusion of employment by the attorney due

to acceptance of the case; (5) the customary fee; (6) whether the

fee is fixed or contingent; (7) time limitations imposed by the

client or the circumstances; (8) the amount involved and the

results obtained; (9) the experience, reputation, and ability of

attorneys; (10) the "undesirability" of the case; (11) the nature

and length of the professional relationship with the client; and

(12) awards in similar cases.

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the City had previously offered him in its Rule 68 offer of judgment.

Therefore, it found that Rogers's attorneys unreasonably continued to

prosecute the case.

We conclude that the district court went beyond its discretion by

using a faulty reason to limit its award of attorneys' fees and costs to

Rogers. Rogers's complaint alleged two distinct violations of the

FLSA by the City: (1) forcing employees to use accrued comp time

on dates unilaterally chosen by the City and (2) denying employee

leave requests to use accrued comp time when leave slots were not

available and when the City would have to pay overtime to a replacement worker. The City changed its overtime policy to address Rogers's first claim; its offer of judgment noted that the policy had been

revised. However, the City did nothing with regard to Rogers's second claim and its offer of judgment made no mention of that claim.

Despite the City's intransigence on the second claim, the district court

ultimately ruled in Rogers's favor on that claim, specifically concluding that the City's policy of denying comp time leave violated the

FLSA. The district court was therefore incorrect when it said in its fee

order that its ruling on the merits "virtually mirrored" the City's settlement offer. Rather, it held that both of the City's policies challenged by Rogers violated the FLSA, whereas the City's earlier offer

related only to Rogers's first claim. In order for Rogers to challenge

the City's policy with respect to the denial of comp time leave, it was

necessary for him to continue prosecuting his lawsuit after the City

made its offer of judgment. Furthermore, Rogers's victory in court on

his second claim benefited not only him, but all other city employees

subject to the policy. This result would not have been achieved if

Rogers had accepted the offer of judgment.

Under these circumstances, the denial of attorneys' fees and costs

on the second claim is inconsistent with the mandatory fee language

of § 216(b) (the court "shall" award attorneys' fees and costs). We

therefore vacate the district court's order setting fees and costs and

remand for reconsideration of the fees and costs to be awarded to

Rogers.

VACATED AND REMANDED

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