UNITED STATES CO URT 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 appella te record, this pa nel 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 This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve 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- 2 - Plaintiffs Donaciano Olivo and Clar ence 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) discriminatio n under 42 U.S.C. § 1981. See Aplt. App. at 154. Plaintiffs were represented by Brandt Milstein, a Colora do 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, whic h found for plaintiffs and awarded damages to them onl y on their FLSA claim. Id. at 35-36. As prevailing parties on this claim, plaintif fs were entitled to an aw ard 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 to tal initial requested award of $166,037.00. 1 Aplt. App. at 40. Their moti on explained that they had already “adjusted their billings to el iminate work performed on claims Plaintiffs lo st at trial,” had “taken care to exclude duplication of effort and all unnecessa ry team efforts,”

1 We have corrected a tran sposition error in the total stated in the motion.- 3 - 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. Y ohalem had reduced his billings by a greater percentage than Mr. Milste in “because Mr. Yohalem specializes in discrimination cases, and thus spent more ti me on the discrimination asp ects of this litigation [on which plaintiffs did not prevail], while Mr. Milstein specializes in wage cases, and thus spent more time on the wa ge aspects of this litigati on” on which plaintiffs were successful. Id. at 44-45. They also stated that they had deducted all of the costs related to plaintiffs’ expe rt witness and “all costs as sociated with Plaintiffs’ interviews of their medical providers.” Id. at 49. They attached affidavits in support of their requested hourly rate s, as well as their adjust ed 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 Rece ipts Tax at 8.1875 percent. Id. at 68. In their reply brief, the attorneys also requested $4442.50 in fe es for the number of hours they spent litigating the contested fee motion, br inging their total requested fees and costs to $170,479.50. 2 Id. at 146, 152. Defendants did not oppose the hourly rates Mr. Y ohalem and Mr. Milstein requested. But defendants argued that Mr . Yohalem and Mr. M ilstein should be awarded only twenty-five percent of their to tal fee request, for a total award of less

2 We have corrected a trans position error in the total in the reply brief as well.- 4 - 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 c opy, 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 ha d 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 distri ct court, and the c ourt’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. Y ohalem’s and Mr. Milstein’s request for fees to litigate the contested fee motion, whic h was made in their reply br ief, 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, whic h was less than half the amount they had requested, but which was considerably more than defendants had argued they should be awarded.- 5 - II. Issues and Discussion “We review the district c ourt’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 explana tion of its reasons for the fee award.’” Id. (quoting Hensley v. Eckerhart , 461 U.S. 424, 437 (1983)). “An abuse of discretion is an ar bitrary, 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 revi ew the statutory interpretation or legal analysis that formed the ba sis 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 w hy it reduced their request for fees by approximately half, after they had already s ubstantially reduced their fees to include only their work on issues on which they prev ailed at trial; (2) failing to discuss or explain why it omitted all of th e attorney’s fees they request ed for the time and effort spent litigating the conteste d motion for fees; and (3) fa iling to discuss or explain why it omitted all amounts requested for th e New Mexico Gross Receipts Tax that will be paid on the fees awarded to Mr. Yohalem. The Supreme Court has held that “t he district court has discretion in determining the amount of a fee award,” which “is appropriate in view of the district court’s superior understandi ng of the litigation and th e desirability of avoiding frequent appellate review of what essentially are factual matters.” Hensley , 461 U.S.- 6 - 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 pr ovide a reasonably sp ecific 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 app ear to be influenced) by a judge’s subjective opinion regarding particul ar 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 aw ard and documenting the appropriate hours expende d and hourly rates.” Hensley , 461 U.S. at 437. “The applicant should exercise ‘b illing judgment’ with respect to hours worked, . . ., and should maintain billing time reco rds in a manner that will enable a reviewing court to identify distinct claims.” Id. Based on these guiding principles, we affi rm the district c ourt’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 or der, summarized the parties’ arguments, and held th at “Plaintiffs are en titled to all the fe es and costs they spent litigat[ing] their FLSA claim but few of the fees incurred on overlapping- 7 - claims.” Aplt. App. at 155. The court st ated that it had “engaged in a line by line review of the bills of Plai ntiffs’ counsel and parsed out those that sustained their FLSA claims.” Id. at 157. The court expressly allo wed billing “directly related to or intertwined with Plainti ffs’ 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. Yoha lem’s and Mr. Milste in’s invoices, and then reduced numerous individu al 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. Wh ile the explanation in the court’s order is brief, the court did not adopt de fendants’ view of Mr. Yohalem’s and Mr. Milstein’s requested fe es. Rather, it is clear th at the court exercised its independent judgment based on its “‘superi or understanding of the litigation.’” See Carter v. Sedgwick Cnty. , 929 F.2d 1501, 1507 (10t h Cir. 1991) (quoting Hensley , 461 U.S. at 437). The explanation in the court’ s order was not “a mere conclusory statement that [t he awarded] fee was reasona ble in light of the success obtained.” Hensley , 461 U.S. at 439 n.15. In their brief on appeal, Mr. Yohale m and Mr. Milstein point to some examples of line items they contend should ha ve 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 conn ected to plaintiffs’ FLSA claim. In short, we hold that the district court’s e xplanation was adequate for judicial review,- 8 - and the court did not abuse its disc retion in reducing Mr. Yohalem’s and Mr. Milstein’s fee request fo r their work through the tria l 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 fo r 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 c ourt’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 Ta x is required by stat e law and may be included as part of plaintif fs’ 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. A pp. 2012). On these two issues, we reverse for the district court to make an award or explain why it chooses

not to.- 9 - The judgment of the district court is affirmed in part and reversed in part, and the case is remanded for additional proceed ings consistent w ith this order and judgment.

Entered for the Court
Bobby R. Baldock Circuit Judge