UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

DONACIANO OLIVO; 

CLARENCE PACHECO, 

 Plaintiffs-Appellants, 

v. 

CRAWFORD CHEVROLET INC., 

 Defendant-Appellee, 

and 

CARL ROMERO, 

 Defendant. 

No. 12-2116 

(D.C. No. 6:10-CV-00782-BB-LFG) 

(D. N.M.)

 

ORDER AND JUDGMENT*

 

Before LUCERO, ANDERSON, and BALDOCK, Circuit Judges. 

 

 

*

 After examining the briefs and appellate record, this panel has determined 

unanimously to grant the parties’ request for a decision on the briefs without oral 

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

May 7, 2013

Elisabeth A. Shumaker 

Clerk of Court
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 Plaintiffs Donaciano Olivo and Clarence Pacheco appeal from the district 

court’s partial grant of their request for attorney’s fees under 29 U.S.C. § 216(b), as 

prevailing parties. We affirm in part and reverse in part. 

I. Background 

 Plaintiffs sued defendants, asserting four claims: (1) violations of the Fair 

Labor Standards Act (FLSA), 29 U.S.C. §§ 201-219, and the New Mexico Minimum 

Wage Act (NMMWA); (2) retaliation under the FLSA and the NMMWA; (3) unjust 

enrichment; and (4) discrimination under 42 U.S.C. § 1981. See Aplt. App. at 154. 

Plaintiffs were represented by Brandt Milstein, a Colorado attorney who specializes 

in wage cases, and Daniel Yohalem, a New Mexico lawyer who specializes in 

discrimination cases. The case was tried to the court, which found for plaintiffs and 

awarded damages to them only on their FLSA claim. Id. at 35-36. As prevailing 

parties on this claim, plaintiffs were entitled to an award of attorney’s fees under 

29 U.S.C. § 216(b). 

 In their motion for attorney’s fees, Mr. Yohalem and Mr. Milstein requested 

$160,677.00 in fees (expressly including the New Mexico Gross Receipts Tax for 

Mr. Yohalem) and $5360.00 in recoverable costs, for a total initial requested award 

of $166,037.00.1

 Aplt. App. at 40. Their motion explained that they had already 

“adjusted their billings to eliminate work performed on claims Plaintiffs lost at trial,” 

had “taken care to exclude duplication of effort and all unnecessary team efforts,” 

 

1

 We have corrected a transposition error in the total stated in the motion. 
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had reduced their billings for “[a]ny amount of time that may have been excessive for 

a particular task,” and had charged “[n]o time spent on any clerical activities.” Id.

at 44. They also explained that Mr. Yohalem had reduced his billings by a greater 

percentage than Mr. Milstein “because Mr. Yohalem specializes in discrimination 

cases, and thus spent more time on the discrimination aspects of this litigation [on 

which plaintiffs did not prevail], while Mr. Milstein specializes in wage cases, and 

thus spent more time on the wage aspects of this litigation” on which plaintiffs were 

successful. Id. at 44-45. They also stated that they had deducted all of the costs 

related to plaintiffs’ expert witness and “all costs associated with Plaintiffs’ 

interviews of their medical providers.” Id. at 49. They attached affidavits in support 

of their requested hourly rates, as well as their adjusted invoices, which showed “NO 

CHARGE” or zeroed-out charges on various lines throughout. See generally id.

at 61-68, 77-104. Mr. Yohalem’s invoices included a line item showing an amount 

for the New Mexico Gross Receipts Tax at 8.1875 percent. Id. at 68. In their reply 

brief, the attorneys also requested $4442.50 in fees for the number of hours they 

spent litigating the contested fee motion, bringing their total requested fees and costs 

to $170,479.50.2

 Id. at 146, 152. 

 Defendants did not oppose the hourly rates Mr. Yohalem and Mr. Milstein 

requested. But defendants argued that Mr. Yohalem and Mr. Milstein should be 

awarded only twenty-five percent of their total fee request, for a total award of less 

 

2

 We have corrected a transposition error in the total in the reply brief as well. 
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than $45,000.00, because they prevailed on only one of the four claims they had 

asserted. See id. at 107-08. Defendants marked up the invoices, circling on the left 

side the line items they thought would be reasonable to award and lining out other 

items they thought should not be awarded. See generally id. at 110-145. 

 The district court adopted the hourly rates Mr. Yohalem and Mr. Milstein 

proposed, but substantially reduced the number of hours requested on the invoices. 

The court reviewed defendants’ marked-up copy, writing to the right of most of the 

line items the amount the court would award, and showing whether the award was for 

the amount Mr. Yohalem or Mr. Milstein had originally requested, a reduced amount, 

or nothing. See generally id. at 159-94. The court also showed a subtotal of the 

amounts awarded at the bottom of each page of the invoices. See generally id. The 

line item for Mr. Yohalem’s request for the New Mexico Gross Receipts Tax was not 

marked up by either defendants or the district court, and the court’s subtotal on the 

relevant page shows that no amount was awarded for this tax. See id. at 194. The 

invoices did not show Mr. Yohalem’s and Mr. Milstein’s request for fees to litigate 

the contested fee motion, which was made in their reply brief, and the court did not 

write on the invoices any comment or amount related to this request. The court 

awarded Mr. Yohalem and Mr. Milstein a total of $79,248.28 to compensate them for 

the hours reasonably expended on the case, which was less than half the amount they 

had requested, but which was considerably more than defendants had argued they 

should be awarded. 
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II. Issues and Discussion 

 “We review the district court’s award of attorney’s fees for a clear abuse of 

discretion.” Malloy v. Monahan, 73 F.3d 1012, 1017 (10th Cir. 1996). “The district 

court should, however, ‘provide a concise but clear explanation of its reasons for the 

fee award.’” Id. (quoting Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)). “An 

abuse of discretion is an arbitrary, capricious, whimsical, or manifestly unreasonable 

judgment.” Caldwell v. Life Ins. Co. of N. Am., 287 F.3d 1276, 1286 (10th Cir. 2002) 

(internal quotation marks omitted). “We review the statutory interpretation or legal 

analysis that formed the basis of the award de novo.” Malloy, 73 F.3d at 1017. 

 Mr. Yohalem and Mr. Milstein argue that the district court abused its 

discretion by: (1) failing to explain why it reduced their request for fees by 

approximately half, after they had already substantially reduced their fees to include 

only their work on issues on which they prevailed at trial; (2) failing to discuss or 

explain why it omitted all of the attorney’s fees they requested for the time and effort 

spent litigating the contested motion for fees; and (3) failing to discuss or explain 

why it omitted all amounts requested for the New Mexico Gross Receipts Tax that 

will be paid on the fees awarded to Mr. Yohalem. 

 The Supreme Court has held that “the district court has discretion in 

determining the amount of a fee award,” which “is appropriate in view of the district 

court’s superior understanding of the litigation and the desirability of avoiding 

frequent appellate review of what essentially are factual matters.” Hensley, 461 U.S. 
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at 437. “When an adjustment is requested on the basis of . . . the . . . limited nature 

of the relief obtained by the plaintiff[s],” id., the district court’s explanation must 

“answer the question of what is ‘reasonable’ in light of that level of success,” id.

at 439. It is not sufficient for the court to make “a mere conclusory statement that 

[the awarded] fee was reasonable in light of the success obtained.” Id. n.15. The 

Court has recently further explained that 

[i]t is essential that the judge provide a reasonably specific explanation 

for all aspects of a fee determination. . . . Unless such an explanation is 

given, adequate appellate review is not feasible, and without such 

review, widely disparate awards may be made, and awards may be 

influenced (or at least, may appear to be influenced) by a judge’s 

subjective opinion regarding particular attorneys or the importance of 

the case. 

Perdue v. Kenny A. ex rel. Winn, 130 S. Ct. 1662, 1676 (2010). But “the fee 

applicant bears the burden of establishing entitlement to an award and documenting 

the appropriate hours expended and hourly rates.” Hensley, 461 U.S. at 437. “The 

applicant should exercise ‘billing judgment’ with respect to hours worked, . . ., and 

should maintain billing time records in a manner that will enable a reviewing court to 

identify distinct claims.” Id. 

 Based on these guiding principles, we affirm the district court’s award for the 

hours it allowed for Mr. Yohalem’s and Mr. Milstein’s work through the trial of the 

case. The court set out the framework for its decision in its order, summarized the 

parties’ arguments, and held that “Plaintiffs are entitled to all the fees and costs they 

spent litigat[ing] their FLSA claim but few of the fees incurred on overlapping 
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claims.” Aplt. App. at 155. The court stated that it had “engaged in a line by line 

review of the bills of Plaintiffs’ counsel and parsed out those that sustained their 

FLSA claims.” Id. at 157. The court expressly allowed billing “directly related to or 

intertwined with Plaintiffs’ successful claim.” Id. at 158. 

 We have carefully reviewed the record. It is apparent that the court began with 

defendants’ marked-up version of Mr. Yohalem’s and Mr. Milstein’s invoices, and 

then reduced numerous individual line items further. See Aplt. App. at 159-85, 

187-94. The court also awarded fees for some hours that defendants had lined out. 

See id. at 163-64, 166-68, 170, 180, 184. While the explanation in the court’s order 

is brief, the court did not adopt defendants’ view of Mr. Yohalem’s and 

Mr. Milstein’s requested fees. Rather, it is clear that the court exercised its 

independent judgment based on its “‘superior understanding of the litigation.’” 

See Carter v. Sedgwick Cnty., 929 F.2d 1501, 1507 (10th Cir. 1991) (quoting 

Hensley, 461 U.S. at 437). The explanation in the court’s order was not “a mere 

conclusory statement that [the awarded] fee was reasonable in light of the success 

obtained.” Hensley, 461 U.S. at 439 n.15. 

 In their brief on appeal, Mr. Yohalem and Mr. Milstein point to some 

examples of line items they contend should have been awarded. But the descriptions 

on those examples are vague, and we are not persuaded that the district court acted 

arbitrarily by not viewing those hours as connected to plaintiffs’ FLSA claim. In 

short, we hold that the district court’s explanation was adequate for judicial review, 
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and the court did not abuse its discretion in reducing Mr. Yohalem’s and 

Mr. Milstein’s fee request for their work through the trial of the case. We note, 

however, that the trial court’s explanation in this case is close to the most minimal 

explanation we could affirm. District courts should heed the Supreme Court’s 

guidance in Hensley and Perdue in articulating their attorney’s fee awards. 

 We conclude, however, that the district court abused its discretion by failing to 

discuss in its order Mr. Yohalem’s and Mr. Milstein’s request for fees for litigating 

the fee motion in the district court and Mr. Yohalem’s request for fees for the New 

Mexico Gross Receipts Tax. Our review of the district court’s calculations shows us 

that no amount was awarded for either of these items, but we are unable to discern 

why. The New Mexico Gross Receipts Tax is required by state law and may be 

included as part of plaintiffs’ attorney’s fee award. See Herrera v. First N. Sav. & 

Loan Ass’n, 805 F.2d 896, 901-02 (10th Cir. 1986); Rio Grande Sun v. Jemez 

Mountains Pub. Sch. Dist., 287 P.3d 318, 324 (N.M. Ct. App. 2012). On these two 

issues, we reverse for the district court to make an award or explain why it chooses 

not to. 
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 The judgment of the district court is affirmed in part and reversed in part, and 

the case is remanded for additional proceedings consistent with this order and 

judgment. 

 Entered for the Court 

 Bobby R. Baldock 

 Circuit Judge