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United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 03-2976

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George Williams, *

*

Appellee, *

*

v. * Appeal from the United States

* District Court for the Western

ConAgra Poultry Company, * District of Arkansas.

*

Appellant. * [UNPUBLISHED]

*

________________________________ *

*

Equal Employment Advisory Council, *

*

Amicus on Behalf of Appellant. *

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 Submitted: September 17, 2004 

 Filed: November 4, 2004

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Before MORRIS SHEPPARD ARNOLD, McMILLIAN, and MELLOY, Circuit

Judges.

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MORRIS SHEPPARD ARNOLD, Circuit Judge.

George Williams has filed a motion for $66,759.50 in attorney’s fees and

$14,416.92 in what Mr. Williams refers to as "costs" on appeal in this case. ConAgra
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filed a response to the motion, and Mr. Williams filed a reply. We grant the motion,

in part.

Mr. Williams is a "prevailing party" entitled to “a reasonable attorney’s fee,”

see 42 U.S.C. §§ 1983, 1988, but we reduce his award because he did not succeed on

all issues, see Jenkins by Jenkins v. Missouri, 127 F.3d 709, 716 (8th Cir. 1997). A

jury found in Mr. Williams's favor in this employment discrimination action.

ConAgra appealed the judgment, arguing that evidence should have been excluded,

that Mr. Williams did not establish a hostile work environment, that the evidence was

insufficient for punitive damages on both of Mr. Williams's discrimination claims,

and that the punitive damages award of $6 million on his hostile work environment

claim was unconstitutionally excessive. Mr. Williams prevailed on all issues except

the last one. Aware that there is “no precise rule or formula for making [fee]

determinations in cases with only partial success,” Kline v. City of Kansas City, Mo.,

Fire Dep't, 245 F.3d 707, 709 (8th Cir. 2001), we have considered the record and

conclude that a ten percent decrease in the attorney's fee award is reasonable in light

of the results obtained.

We reject ConAgra's contention that Mr. Williams's attorneys spent an

excessive amount of time preparing the brief, particularly given the magnitude of the

judgment entered in the district court.

For several of its arguments challenging the fee request, ConAgra relies on a

“Pre-bill Worksheet” prepared by the law firm representing Mr. Williams. The

worksheet, which Mr. Williams attached to his motion without explanation, includes

billings by three attorneys and a paralegal. As ConAgra points out, the worksheet
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lists $200 as attorney Gerry Schulze's hourly rate, rather than $250, the hourly rate

used for him in other documents attached to the motion and in the motion itself. We

note that $200 per hour is the rate requested for Mr. Schultze in the district court and

in a fee request in another recent appeal, and the instant motion relies on an affidavit

filed in district court to support a $200 hourly rate for Mr. Schultze. But the same

affidavit (signed by an attorney from another firm) attests to Mr. Schulze's reputation

as “one of the brightest legal minds in [Arkansas],” with “skills of the highest order,

especially in motion and appellate practice,” and ConAgra does not argue that $250

is unreasonable. Having reviewed the record, we conclude that $225 an hour is a

reasonable rate here for Mr. Schultze.

As ConAgra further notes, Mr. Schultze's lower hourly rate does not fully

account for a significant difference between the worksheet's total billings and the

greater amount that Mr. Williams requests for fees. But individual billing sheets for

each attorney and the paralegal, as well as each attorney's affidavit, support the

requested amount. And much of the discrepancy results from a failure of the

worksheet to include separate charges for each participant in certain activities. When

all participants properly included these activities in their separate bills, the total

charges naturally increased. We are aware that each entry listed on attorney Tré

Kitchens's individual bill cannot be explained by a corresponding worksheet entry,

but we do not think that the worksheet alone precludes awarding the fees that his

affidavit supports. We deduct $255 that he billed for "discovery" from his fees,

however, because the parties agree that this billing was a mistake.

ConAgra challenges the charges for mediation, noting that the three attorneys,

a paralegal, and Mr. Williams and his wife attended the one-day event in St. Louis.

Although Mr. Williams does not request payment for the paralegal's mediation time,
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he does seek fees for the three attorneys. But because we think that it was reasonable

for two attorneys, at most, to attend the mediation, we award fees and travel expenses

for only Mr. Schultze and attorney Morgan Welch.

We deny reimbursement of the Williamses' expenses for travel to mediation.

We have not located nor has Mr. Williams cited us to any authority for ordering one

party to reimburse another for his or her own travel costs. Cf. Charles Alan Wright,

Arthur R. Miller, Mary Kay Kane, Federal Practice & Procedure § 2678 at 466

(Civil 3d 1998). We note that travel expenses for attorneys and many other out-ofpocket expenses that Mr. Williams's motion refers to as "costs" are more properly

characterized as part of an attorney's fees award, which may include expenses that a

law firm normally would bill to its client. See Pinkham v. Camex, Inc., 84 F.3d 292,

294-95 (8th Cir. 1996) (per curiam). But the Williamses' own travel expenses are

"clearly not" that type of expense. See Bee v. Greaves, 910 F.2d 686, 690 (10th Cir

1990).

The bill attached to Mr. Williams's motion includes travel expenses incurred

during the month of the mediation that are not fully explained. For example, four

hotel bills are listed under Mr. Welch's name. Because the bill reflects only airfare

(and no hotel) for the Williamses and Mr. Schulze, we have assumed that the bills for

these individuals were listed under Mr. Welch's name. We have also deducted from

the award one unexplained hotel bill, and assumed that an extra airlines agent's fee

under Mr. Schulze's name was for Mr. Kitchens.

We omit from reimbursement unexplained air travel expenses to St. Louis for

Harry Ehrenberg (an "expert," according to another entry). Mr. Schultze's bill reflects

that he left a message for Mr. Ehrenberg about "whether he should go to St. Louis
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regarding Williams mediation," and that Mr. Ehrenberg returned the call. The entry

continues, "He will be available by phone. GS [Mr. Schultze] to go to St. Louis."

Mr. Williams has shown neither that Mr. Ehrenberg went to St. Louis nor why he

would have gone.

ConAgra also contends that because Mr. Welch, not Mr. Schulze, presented the

oral argument, Mr. Schultze's preparation and travel to St. Louis for argument should

not be included in the award. On the day of argument, Mr. Schulze argued another

case before the same panel of judges. But we conclude that it was reasonable in a

case of this magnitude for Mr. Schultze, who worked on Mr. Williams's brief, to help

him prepare for argument and be present at counsel table. We nonetheless have

deducted half of Mr. Schultze's travel time and hotel bill because he also went to St.

Louis for the case that he argued. Mr. Williams's own expenses for travel to

argument are denied for the reasons already stated.

ConAgra also challenges fees for counsel's contacts with Mr. Williams's tax

accountant and Mr. Ehrenberg, "expert fees" for Mr. Ehrenberg, and charges for

contacts with an attorney at another firm "relat[ing] to tax and trust issues." In

response, Mr. Williams argues that his attorneys had to consult a tax lawyer to

ascertain the tax consequences of both the judgment and the manner in which "any

particular argument was couched or resolved" on appeal. Although we think that tax

advice may sometimes be recoverable as part of an attorney's fee award, we refuse

Mr. Williams's request for payment of $4906.25 described simply as "Consultation

fees paid to Friday, Eldredge & Clark [law firm]." To obtain attorney's fees a movant

generally must establish the "appropriate hours expended and hourly rates." Hensley

v. Eckerhart, 461 U.S. 424, 437 (1983). Because the record includes no specifics

about the hourly billings for the work performed by the Friday law firm nor the
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qualifications and experience of the individuals performing that work, we conclude

that Mr. Williams has not met his burden of showing that the lump sum charge should

be included in a "reasonable attorney's fee," 42 U.S.C. § 1988. In addition, we

exclude the $750 "expert fees" for Mr. Ehrenberg because we cannot determine what

work was performed or its relationship to the appeal.

Finally, we note that over $500 in the requested expenses are dated before the

appeal. But because the district court awarded attorney's fees and costs before the

date of these expenses and thus did not consider them and ConAgra does not object

to them, we include them in the award.

We therefore base our award on the following attorney's fees:

Attorney Morgan Welch: $23,850 (95.4 hours @ $250 per hour);

Attorney Gerry Schulze: $29,610 (131.6 hours @ $225 per hour) (hourly rate

reduced from $250; 2.5 hours deducted for half of travel time for argument);

Attorney Tré Kitchens: $6765 (45.1 hours @ $150 per hour) (12 hours

deducted for attending mediation; 1.7 hours deducted for "discovery");

Paralegal Cheryl Welch: $ 604.50 (9.3 hours @ $65 per hour).

Subtotal: $60,829.50.

Ten percent reduction ($6082.95) because Mr. Williams did not fully

prevail–

Total $54,746.55.

We have deducted the following from Mr. Williams's requested "costs" of

$14,416.92:

$ 77.21 (half of Mr. Schulze's hotel bill for oral argument)

 682.61 (Mr. Kitchens's travel expenses for mediation)
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 742.01 (The Williamses' travel expenses for mediation)

 257.30 (unexplained hotel bill at time of mediation)

 249.00 (Mr. Ehrenberg's travel expenses for mediation)

 173.19 (Mr. Williams's travel expenses for oral argument)

4906.25 ("[c]onsultation fees paid to Friday, Eldredge & Clark")

 750.00 ("expert fees" for Mr. Ehrenberg)

Total deductions: $7837.57

Subtotal for expenses $6579.35.

Ten percent reduction ($657.93) because Mr. Williams did not fully

prevail–

Total expenses: $5921.42. 

Accordingly, we enter the following attorney's fee award:

Mr. Williams's motion for attorney's fees is granted, in part, and ConAgra is

ordered to pay to Mr. Williams as attorney's fees a total of $60,667.97, which consists

of $54,746.55 for attorney and paralegal time, and $5921.42 in other expenses. The

clerk of this court is directed to request that the clerk of the district court add this

attorney's fee award to the mandate. See Fed. R. App. P. 47C(C).

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