United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 4, 2016 Decided May 3, 2016

No. 15-7003

KATHY RADTKE AND CARMEN CUNNINGHAM,

APPELLANTS

v.

MARIA CASCHETTA, ET AL.,

APPELLEES

Consolidated with 15-7008

Appeals from the United States District Court

for the District of Columbia

(No. 1:06-cv-02031)

S. Micah Salb argued the cause for appellants/crossappellees. With him on the briefs was Dennis Chong. 

Richard Talbort Seymour argued the cause for amici 

curiae Metropolitan Washington Employment Lawyers 

Association, et al. With him on the brief was Keira McNett.

Susan L. Kruger argued the cause for appellees/crossappellants. With her on the briefs was Alan Lescht. 
2

Before: GARLAND,

* Chief Judge, and BROWN and 

PILLARD, Circuit Judges.

Opinion for the Court filed by Circuit Judge BROWN.

BROWN, Circuit Judge: After eight years of litigation, 

appellants Kathy Radtke and Carmen Cunningham received 

less than $6,000 in damages for unpaid overtime wages. They 

spent the next two years seeking $250,000 in attorney’s fees; 

the district court ultimately awarded them just over $56,000. 

But this decade-long litigation will not end here. Appellants 

now challenge the fee award as too low while the employers 

challenge it as too high, each alleging a multitude of errors. 

We need discuss only two of these claims, however, as we

conclude the lower court’s clear factual error requires us to

vacate the judgment and remand for reassessment of 

reasonable attorney’s fees.

I

This court laid out the full background of this dispute in 

an earlier merits appeal, see Radtke v. Lifecare Mgmt. 

Partners, 795 F.3d 159 (D.C. Cir. 2015), but for our current 

purposes the following facts suffice. In 2006, Radtke and 

Cunningham brought suit against Advanta Medical Solutions 

and Lifecare Management Partners (“Employers”) for failure 

to pay overtime in violation of the Fair Labor Standards Act 

and Maryland state law. After years of back-and-forth, the 

case proceeded to jury trial. Appellants prevailed but

received only $5,844.29 in damages out of a claim for over 

$87,000—largely because the jury and court rejected their 

claims for doubled and trebled damages. 

 * Chief Judge Garland was a member of the panel at the time the 

case was argued but did not participate in this opinion. 
3

Because appellants successfully recovered unpaid wages,

the Fair Labor Standards Act entitled them to reasonable 

attorney’s fees. See 29 U.S.C. § 216(b) (“The court . . . shall 

. . . allow a reasonable attorney’s fee to be paid by the 

defendant” to a prevailing plaintiff.). Appellants accordingly 

petitioned for $255,898.80 in fees.1

 The district court 

accepted this figure as the appropriate “lodestar”—i.e., the 

“most useful starting point for determining the amount of a 

reasonable fee,” Hensley v. Eckerhart, 461 U.S. 424, 433 

(1983). While a “strong presumption” of reasonability 

attaches to the lodestar, see Perdue v. Kenny A. ex rel. Winn, 

559 U.S. 542, 554 (2010), the court nevertheless reduced this 

amount by 75% in calculating the final fee award.

Most relevant for our purposes, the court explained it was 

“plaintiffs’ counsel [sic] inability to provide a meaningful 

demand for the actual damages suffered” that was “driving” 

the substantial reduction. J.A. 40. According to the court, 

“[i]t was not until the eve of trial, and several years into the 

litigation, that counsel provided th[e] Court with any 

calculation of plaintiff’s damages.” J.A. 41. This failure to 

provide a damage demand, according to the court, caused 

unnecessary delay and the resulting inflation of attorney’s 

fees. See J.A. 41-42. It therefore concluded a fee of only 

$56,474.70 was appropriate and reasonable.

Both plaintiffs and defendants appealed. Plaintiffappellants argue the lower court erred, for a variety of 

reasons, in adjusting the lodestar downward. The Employers, 

on the other hand, contend the fee petition should have been 

 1 Appellants estimated their true expenditures at over $325,000 but 

voluntarily reduced that amount by one-quarter to account for the 

inevitable existence of duplicative or overly time-consuming tasks.
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denied entirely as untimely or, if not denied, then at least 

reduced more substantially. As noted previously, we have no 

need to reach most of these arguments because we conclude 

the lower court’s clear error with regard to the facts “driving” 

the fee reduction is sufficient to require remand.

II

As an initial matter, the Employers claim appellants’ fee 

petition must be denied in its entirety because it was untimely. 

Federal Rule of Civil Procedure 54 requires a petition for 

attorney’s fees “be filed no later than 14 days after the entry 

of judgment.” Fed. R. Civ. P. 54(d)(2)(B)(i). Appellants 

admittedly filed their petition 15 days after the lower court’s 

initial entry of judgment. The Employers thus moved to 

strike the fee petition, and appellants responded by filing a 

motion for leave to file the petition nunc pro tunc. The lower 

court denied the former and dismissed the latter as moot. The 

Employers moved for reconsideration, but the court again 

denied the motion, albeit based on different reasoning. The 

Employers moved yet again for reconsideration. This time, 

though, the court dismissed the motion as moot without 

explanation after awarding appellants their attorney’s fees. 

We need not concern ourselves with the lower court’s 

two earlier justifications for denying the employers’ 

motions—nor do we need to address the parties’ other 

arguments regarding whether the appellants’ late filing was 

excusable—as the court reached the correct result when it 

dismissed the motion as moot.2

 While Federal Rule of Civil 

 2 The outcome—not the reasoning—is relevant here because we are 

free to affirm the lower court on alternative grounds. See RSM 

Prod. Corp. v. Freshfields Bruckhaus Deringer U.S. LLP, 682 F.3d 

1043, 1045 n.2 (D.C. Cir. 2012). That the district court gave no

reason for dismissing the Employers’ motion is therefore irrelevant.
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Procedure 54 requires a fee petition to be filed “no later than” 

14 days after judgment is entered, the Advisory Committee’s

Notes provide: “A new period for filing will automatically 

begin if a new judgment is entered following . . . the granting 

of a motion under Rule 59.” FED. R. CIV. P. 54 advisory 

committee’s note (1993). The Supreme Court instructs that 

guidance from the Advisory Committee is entitled to 

“weight,” see Torres v. Oakland Scavenger Co., 487 U.S. 

312, 316 (1988) (quoting Mississippi Publ’g Corp. v. 

Murphree, 326 U.S. 438, 444 (1946)), and nothing in the text 

of the Rule or our precedent suggests the Committee’s 

interpretation is incorrect.

Our sister circuits have agreed with the Advisory 

Committee’s construction of the Rule, holding that a fee 

petition “is timely if filed no later than 14 days after the 

resolution of a Rule 50(b), Rule 52(b), or Rule 59 motion.” 

Bailey v. Cnty. of Riverside, 414 F.3d 1023, 1025 (9th Cir. 

2005); see also Miltimore Sales, Inc. v. Int’l Rectifier, Inc., 

412 F.3d 685, 689 (6th Cir. 2005); Quigley v. Rosenthal, 427 

F.3d 1232, 1237 (10th Cir. 2005); Members First Fed. Credit 

Union v. Members First Credit Union of Fl., 244 F.3d 806, 

807 (11th Cir. 2001); Weyant v. Okst, 198 F.3d 311, 315 (2d 

Cir. 1999). That is exactly the situation here—after partially 

granting a motion under Rule 59, the lower court entered an 

amended judgment on May 15, 2014, well after appellants 

filed their fee petition. Once the court entered the amended 

judgment, the Employers’ earlier-filed motion to strike 

became moot because the new judgment created “[a] new 

period for filing” a fee petition. FED. R. CIV. P. 54 advisory 

committee’s note.

The Employers argue, however, that appellants failed to 

take advantage of this new filing period because they never 

renewed their fee petition—meaning they failed to file within 
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14 days of the May 15, 2014 amended judgment. But the text 

of Rule 54 never says when the filing period begins, only 

when it ends. The plain language of the rule requires a 

petition be filed “no later than” 14 days after judgment is 

entered, not “within” 14 days of a new judgment. A prejudgment petition like appellants’ therefore satisfies this “no 

later than” requirement. 

The Employers suggest the rule both opens and closes the

filing window. In Weyant, the Second Circuit noted that the 

14-day filing window “began with” entry of the district 

court’s order denying all post-judgment motions. 198 F.3d at 

315. But the Weyant court was evaluating the filing of a fee 

petition seeking compensation for services rendered in 

opposing post-judgment motions—a petition that was filed 

after the court resolved (and denied) both motions. Because 

no pre-judgment petition was at issue there, the language 

Employers cite in support of their position is merely dicta. 

See United States v. Wade, 152 F.3d 969, 973 (D.C. Cir. 

1998) (explaining that even if an earlier opinion could be read 

to reach the relevant issue, because “that issue was not before 

the court, its overly broad language would be obiter dicta and 

not entitled to deference”). Moreover, although Weyant “is 

deserving of respect as a decision of a sister circuit,” it is “not 

binding authority on us.” See Indep. Petrol. Ass’n of Am. v. 

Babbitt, 92 F.3d 1248, 1257-58 (D.C. Cir. 1996).

The Advisory Committee’s explanation for Rule 

54(d)(2)(B)’s 14-day deadline further reinforces our 

conclusion that a pre-judgment petition satisfies the Rule. 

The deadline ensures “the opposing party is informed of the 

claim before the time for appeal has elapsed.” FED. R. CIV. P.

54 advisory committee’s notes. That purpose is served just as 

well by a pre-judgment petition. The Employers here were 

certainly on notice that appellants were seeking attorney’s 
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fees. Relatedly, the deadline “enables the court . . . to make 

its ruling on a fee request in time for any appellate review of a 

dispute over fees to proceed at the same time as review on the 

merits of the case.” Id. Again, that purpose is served just as 

well, if not better, by a pre-judgment petition. Finally, 

“[p]rompt filing affords an opportunity for the court to resolve 

fee disputes shortly after trial, while services performed are 

freshly in mind.” Id. The earlier a petition is filed, the more 

likely that is to be the case; in fact, the Employers’ preferred 

interpretation requiring filing after the court has ruled on 

post-judgment motions (perhaps months after trial) undercuts 

that purpose.

In sum, while appellants’ fee petition originally was 

untimely, the court’s entry of an amended judgment created 

“[a] new period for filing” and cured that untimeliness, 

notwithstanding the fact that the petition was filed before 

entry of the new judgment. Appellants thus satisfied Rule 

54(d)(2)(B)’s dictates, leaving no ground on which to deny 

appellants’ fee petition in its entirety for lack of timeliness.

III

Having determined that appellants are entitled to fees, we 

now consider the parties’ arguments regarding the amount. 

Appellants primarily contest the district court’s decision to 

adjust the lodestar downward because, according to the court, 

appellants achieved only “limited success.” We do not reach 

that claim, however, because another error—the district 

court’s incorrect finding that appellants did not provide a 

damages estimate until the eve of trial—requires remand. 

We review a fee award “for abuse of discretion and will 

reverse the district court if its decision rests on clearly 

erroneous factual findings.” Ass’n of Am. Physicians & 
8

Surgeons, Inc. v. Clinton, 187 F.3d 655, 660 (D.C. Cir. 1999) 

(per curiam). The error here is quite clear. Though the lower 

court listed a variety of reasons justifying the fee reduction, 

what was really “driving” its decision—and what most 

concerns us here—was the appellants’ alleged “inability to 

provide a meaningful demand for actual damages suffered . . . 

until the eve of trial.” J.A. 40-41. 

In fact, appellants were not negligent or dilatory in 

providing a damages estimate; they did so time and again, 

including before they filed suit. See J.A. 108 (pre-suit 

November 2006 letter estimating damages at $22,700); J.A. 

282 (December 2007 Rule 26(a)(1) disclosures, calculating 

damages at just under $22,680); J.A. 319-21 (May 2008 

expert reports calculating damages at somewhere between 

approximately $13,000 and $20,000); J.A. 290-91, 306 

(February 2009 response to interrogatories, itemizing 

compensatory damages and calculating them at approximately 

$17,500). They even offered an early settlement, but the 

Employers never responded. See J.A. 117 (December 1, 2006 

offer to settle for $30,000, inclusive of liquidated damages 

and attorney’s fees); J.A. 118-19 (December 28, 2006 offer to 

settle for $25,000, inclusive of liquidated damages and 

attorney’s fees).

Although the district court was unaware of it, appellants

prepared and delivered the early damages calculation required 

by Federal Rule of Civil Procedure 26(a)(1). The court 

lauded the important role Rule 26 plays by mandating early

disclosure of damages, thereby enabling the opposing party to 

decide whether to settle before expending immense resources. 

See J.A. 41. Yet the court never inquired whether the 

appellants had provided a Rule 26(a)(1) disclosure and 

therefore failed to discover that they had done so as early as 

December 2007, six years before trial. See J.A. 282. At a 
9

minimum, the court should have known appellants furnished 

damages calculations to the Employers far in advance of trial

because appellants attached to their fee petition several 2006 

settlement letters, which contained estimates of their 

damages. See ECF No. 167, Ex. 5, 6, 7. The court’s 

erroneous factual finding, which was based in part on the 

court’s failure to ascertain whether appellants had provided

damages estimates to the defendants, requires remand.

The Employers’ response seems to be that appellants’ 

estimates were for “wildly varying amounts,” Oral Arg. 

Recording 39:26-39, and did not accurately predict the 

ultimate verdict of less than $6,000. These arguments fail at 

the outset because they misconstrue what the district court 

found, and we, as an appellate court, cannot reimagine the 

lower court’s factual findings. See, e.g., Icicle Seafoods, Inc. 

v. Worthington, 475 U.S. 709, 713-14 (1986) (holding the 

court of appeals was mistaken to engage in factfinding rather 

than simply reviewing the district court’s factual findings for 

clear error). The district court’s complaints here were about 

the (non)existence of the appellants’ damages calculations, 

not their consistency or accuracy. The court claimed it 

“struggled mightily” with appellants before any damages 

estimate was provided, pointing to the absence of any 

damages calculations in their complaint or amended 

complaint. J.A. 40-41. It also found appellants “first 

purported to provide a damages calculation in their Trial 

Brief” (filed December 5, 2013), and even then “failed to 

actually file the attachment with the damages calculation.” 

J.A. 41. The court concluded it had first received damages 

calculations on December 18, 2013—“the eve of trial.” Id. 
10

But as described previously, this finding was blatantly 

inaccurate.3

Even assuming the district court had the Employers’ 

arguments in mind when making its findings, those claims

still fail. The first contention is a mischaracterization of the 

facts; the compensatory damages estimates ranged from a low 

of approximately $13,000 to a high of just under $23,000. 

Any variance beyond that was due to escalating attorney’s 

fees accrued by virtue of the protracted litigation.

As to the second contention, there is no indication 

appellants’ demands were unreasonable, frivolous, or 

otherwise entirely disconnected from reality. That the jury 

ultimately awarded less than requested—especially in a case 

where most of the requested damages were calculated by

multiplying compensatory damages—is not an indictment of 

appellants’ actions. In any event, appellants offered to settle 

for $25,000 to $30,000 very early in the dispute, yet the 

Employers never responded, much less counter-offered. See 

J.A. 117-19. The Employers, moreover, could have protected 

themselves from significant attorney’s fees by making a Rule 

68 offer of judgment. See FED. R. CIV. P. 68(d) (“If the 

judgment that the offeree finally obtains is not more favorable 

than the unaccepted offer, the offeree must pay the costs 

incurred after the offer was made.”). But they failed to do so. 

They cannot now complain appellants acted unreasonably, 

allegedly leaving the Employers no way to protect themselves 

from ever-escalating fees.

 3 To the extent the court’s complaint was that appellants had not 

provided the court with any damages calculations (even though 

they had provided multiple such calculations to the Employers, as 

described above), that fact is irrelevant to the court’s purported 

reason for insisting on a prompt calculation—allowing the parties 

to decide whether to settle or continue litigating.
11

In the end, there is no support in the record for the district

court’s finding that appellants failed to promptly provide a 

damages calculation that could have facilitated early 

settlement. This clear factual error requires remand. 

Additionally, because we cannot ascertain whether or how 

significantly this mistaken factual finding impacted other 

aspects of the district court’s fee reasonability assessment, we 

must vacate the entire decision. None of the lower court’s 

previous determinations will be law of the case as a 

consequence. On remand, the parties are free to reargue and 

the court is free to reconsider any of the issues that we have 

not reached.

IV

For the foregoing reasons, the judgment of the district 

court is vacated, and the case is remanded for proceedings 

consistent with this opinion.

So ordered.