FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

AUG 28, 2008

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-11478

Non-Argument Calendar

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D. C. Docket No. 07-80159-CV-DMM

CHRISTOPHER BIVINS, 

Plaintiff-Appellant, 

versus

WRAP IT UP, INC., 

d.b.a. Nature's Way Café, 

ANNIE RASO, 

Defendants-Appellees, 

NATURE'S WAY CAFÉ FRANCHISING, LLC, 

Defendant. 

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Appeal from the United States District Court

for the Southern District of Florida

_________________________

(August 28, 2008)
Before MARCUS, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM:

After a two-day bench trial, the district court found that plaintiff/appellant

Bivens had been discriminated against by Annie Raso, the co-owner of a Nature’s

Way Café, and Wrap it Up, Inc, the franchisor of Nature’s Way. The district court

awarded both compensatory and punitive damages, injunctive relief, and—in

accordance with 42 U.S.C. § 1988—costs and attorneys’ fees to Bivens’s counsel

Linda J. Ehrlich and Randall C. Marshall. Bivens’s request for attorneys’ fees 1

was significantly reduced and he now appeals that award. 

Section 1988 allows for the recovery of “reasonable” attorneys’ fees. 42

U.S.C. § 1988. The starting point for determining the amount of a “reasonable fee

is the number of hours reasonably expended on the litigation multiplied by a

reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The

product of these two figures is the lodestar and there is a “strong presumption”

that the lodestar is the reasonable sum the attorneys deserve. See Pennsylvania v.

Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 565-566 (1986). 

 The facts that gave rise to this case are explained in depth in the district court’s Findings

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of Fact and Conclusions of Law and need not be repeated here.

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When a district court finds the number of hours claimed is unreasonably

high, the court has two choices: it may conduct an hour-by-hour analysis or it may

reduce the requested hours with an across-the-board cut. See Loranger v.

Stierheim, 10 F.3d 776, 783 (11th Cir. 1994) (holding that where the billing record

is voluminous, “the district court need not engage in an hour-by-hour

analysis[; r]ather, . . . it may [] reduce [the hours devoted to litigation] in gross if

a review of the resubmitted fee request warrants such a reduction”) (emphasis

added). In determining what is a “reasonable” hourly rate and what number of

compensable hours is “reasonable,” the court is to consider the 12 factors

enumerated in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.

1974).2

When the number of compensable hours and the hourly rate are reasonable,

a downward adjustment to the lodestar is merited only if the prevailing party was

 Those factors are: (1) the time and labor required; (2) the novelty and difficulty of the 2

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 the

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. Id. at 717-719. 

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this court

adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to close

of business on September 30, 1981.

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partially successful in its efforts. Resolution Trust Corp. v. Hallmark Builders,

Inc., 996 F.2d 1144, 1150 (11th Cir. 1993).3

Here, in fashioning the attorneys’ fees award, the district court first

calculated a reasonable hourly rate for Ehrlich and Marshall. After calculating a 4

reasonable hourly rate—which Bivens does not dispute—the court then engaged

in an hour-by-hour analysis for 463.3 of the 616.4 hours requested by Ehrlich and

all of the 51.7 hours requested by Marshall. For each of 15 specific categories of

requested hours, the court found a certain portion of those hours to be

“reasonable” and explicitly stated so. The court never explicitly used language

from Johnson but it is clear that the court considered the first Johnson factor (the

“time and labor required”) in fashioning a “reasonable” number of hours for each

specific category of requested hours.

After conducting this hour-by-hour analysis, the district court then applied a

further 35% across-the-board reduction in the requested hours. This reduction

applied to those hours already subjected to the hour-by-hour analysis and found to

be “reasonable,” in addition to the 153.1 other (primarily administrative) hours

 What constitutes partial success is determined on a case-by-case basis. See Hensley,

3

461 U.S. at 434-436. 

 The court also discussed the reasonable fee owed to the expert, but that finding is not 4

disputed in this appeal. 

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requested but not specifically discussed in the hour-by-hour analysis. In applying

this 35% reduction, the district court explained that it had applied the Johnson

factors. The district court specifically stated that it considered the “attorney’s

skill,” “type of case,” “preclusion of other employment,” “time limitations

imposed by the client or the circumstances,” “difficulty and novelty of the case,”

and—most importantly—the “time and labor required,” a Johnson factor already

considered in the hour-by-hour analysis. After applying this reduction, the court

stated that the new figure was “reasonable.” 

Having arrived at a reasonable hourly rate and a reasonable number of

compensable hours, the district court thus arrived at the lodestar. The district

court then adjusted the lodestar amount; it reduced it by 50% based on the

“excessive amount of time spent on some activities in disproportion to the

relatively straight-forward nature of the claim, and the isolated, brief encounter

that led to the lawsuit.” 

We review the award of attorneys’ fees for abuse of discretion, reviewing

questions of law de novo and reviewing findings of fact for clear error. Atlanta

Journal and Constitution v. City of Atlanta Dept. of Aviation, 442 F.3d 1283, 1287

(11th Cir. 2006). An error of law is per se abuse of discretion. Resnick v. Uccello

Immobilien GMBH, Inc., 227 F.3d 1347, 1350 (11th Cir. 2000). Any reductions

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to the requested hours must be concisely and clearly explained to allow for

appellate review; otherwise, we must remand. Loranger, 10 F.3d at 783.

We conclude that the district court erred in two ways. First, in arriving at

the lodestar, the district court conducted both an hour-by-hour analysis and

applied an across-the-board reduction of the requested compensable hours. Our

circuit’s precedent states that the district court is to apply either method, not both. 

See id. The reason for this is easy to understand: by requiring the district court to

conduct either analysis instead of both, we ensure that the district court does not

doubly-discount the requested hours, as was the case here. We therefore remand

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to the district court to determine the “reasonable” number of compensable hours to

be included in the lodestar.

 The district court determined that 183.7 hours was “reasonable” for Ehrlich’s 15 specific 5

categories of requested hours and 35 hours was “reasonable” for Marshall, but the district court

then reduced these figures by an additional 35% and called this new total “reasonable” as well.

We note that the district court may not have meant to doubly-discount the 218.7 hours

found to be “reasonable” for Ehrlich and Marshall; rather, it may have applied the 35% accrossthe-board discount to reduce the 153.1 primarily administrative hours requested (and not

subjected to an hour-by-hour analysis) to a “reasonable” amount. Indeed, applying a 35%

reduction to both the 218.7 and the 153.1 figures is the mathematical equivalent of applying an

85% reduction to the 153.1 hours and adding that number to 218.7. But the district court did not

state that it was reducing the 153.1 hours by 85%. It stated that it was reducing both the 218.7

and the 153.1 figures by 35%, resulting in a double-discounting of the 218.7 figure. Because the

district court determined a given number of hours was “reasonable” but then discounted that

number again to arrive at another number that it also found was “reasonable,” we do not have a

clear picture of which figure the district court determined to be “reasonable.” We, therefore,

must remand to the district court to determine the reasonable number of compensable hours for

the lodestar.

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Second, the district court erred in adjusting the lodestar downward by 50%. 

Such an adjustment is warranted only if the plaintiff was partially successful in his

claims. Resolution Trust Corp, 996 F.2d at 1150. Here, the plaintiff was fully

successful: he was successful on all his claims and was awarded both damages and

injunctive relief. Therefore, a downward adjustment was in error. Further, the

downward adjustment was error because the court considered the Johnson factors

in applying a downward adjustment. The Johnson factors are to be considered in

determining the lodestar figure; they should not be reconsidered in making either

an upward or downward adjustment to the lodestar—doing so amounts to doublecounting. See City of Burlington v. Dague, 505 U.S. 557, 562-563 (1992). 

Accordingly, we VACATE the award of attorneys’ fees and REMAND for

further proceedings consistent with this opinion.

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