FILED

United States Court of Appeals

Tenth Circuit

August 5, 2010

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

YVONNE FLITTON,

Plaintiff-CounterDefendant - Appellee/

Cross - Appellant,

v.

PRIMARY RESIDENTIAL

MORTGAGE, INC.,

Defendant-CounterClaimant - Appellant/

Cross - Appellee.

No. 09-4108 & 09-4120

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

(D. Ct. No. 2:03-CV-00481-DAK)

Darryl J. Lee (Richard J. Armstrong, with him on the briefs), Wood Crapo, LLC,

Salt Lake City, Utah, appearing for Appellant.

Blake S. Atkin (Joseph H. Pugsley, with him on the briefs), Atkin Law Offices,

P.C., Bountiful, Utah, appearing for Appellee.

Before TACHA, MCKAY, and GORSUCH, Circuit Judges.

TACHA, Circuit Judge.

Defendant-appellant Primary Residential Mortgage, Inc. (“PRMI”) appeals

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from the district court’s order awarding plaintiff-appellee Yvonne Flitton

$367,689.00 in attorney’s fees as a prevailing party in a Title VII lawsuit. Ms.

Flitton cross-appeals from the same order, challenging the district court’s

conclusion that it lacked jurisdiction to award her appellate attorney’s fees

because she failed to first request such fees in this court. We have jurisdiction

under 28 U.S.C. § 1291 and AFFIRM. 

I. BACKGROUND

In 2003, Ms. Flitton filed suit against PRMI alleging, inter alia,

discriminatory and retaliatory discharge in violation of Title VII, and seeking

both compensatory and punitive damages for these alleged violations. At the

close of Ms. Flitton’s case, the district court partially granted PRMI’s motion for

judgment as a matter of law (“JMOL”) and dismissed Ms. Flitton’s discrimination

and punitive damages claims. The court, however, allowed Ms. Flitton’s

retaliation claim to go to the jury, which returned a verdict in her favor and

awarded her $50,000 in emotional distress damages. The district court then

granted PRMI’s renewed motion for JMOL, vacated the jury’s verdict, and

entered judgment in PRMI’s favor on the retaliation claim. 

On appeal, this court reversed the district court’s decisions, remanded the

case for a new trial on Ms. Flitton’s discrimination and punitive damages claims,

and reinstated the jury’s verdict on Ms. Flitton’s retaliation claim. Ms. Flitton

did not ask, and has never asked, this court to award her appellate attorney’s fees.

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On remand, the second trial was divided into a jury trial portion for Ms.

Flitton’s discrimination and punitive damages claims and a bench trial portion to

determine whether she was entitled to, and the amount of, front pay and back pay

damages on her retaliation claim. The jury found in favor of PRMI on Ms.

Flitton’s discrimination and punitive damages claims, and the district court

awarded her $354,703.05 in back pay based on the first jury’s verdict in her

favor. 

Ms. Flitton then sought attorney’s fees for her counsel’s work in the first

trial, the appeal to this court, and the second trial. After conducting a thorough

review of the parties’ submissions and arguments relating to Ms. Flitton’s fees,

the district court ultimately awarded her $367,689.00 in fees. In explaining the

fee amount, the district court rejected PRMI’s contention that Ms. Flitton was not

entitled to any fees related to the second trial, or, in the alternative, that the fee

amount should be reduced to reflect Ms. Flitton’s “limited” success on her claims. 

The court also rejected Ms. Flitton’s argument that she was entitled to appellate

fees, instead concluding that it lacked jurisdiction to order such an award because

Ms. Flitton had never requested fees from this court. Finally, in calculating the

precise amount of the fee, the court refused to include fees that it found were

unreasonably high or excessive, or were for clerical work, background research,

or were supported by vague billing descriptions. PRMI now appeals the amount

of the award and Ms. Flitton cross-appeals, claiming the district court erroneously

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concluded that it lacked jurisdiction to award her appellate fees. 

II. DISCUSSION

 In Title VII cases, a district court, “in its discretion, may allow the

prevailing party . . . a reasonable attorney’s fee.” 42 U.S.C. § 2000e-5(k). Thus,

to obtain attorney’s fees, “a claimant must prove two elements: (1) that the

claimant was the ‘prevailing party’ in the proceeding; and (2) that the claimant’s

fee request is ‘reasonable.’” Robinson v. City of Edmond, 160 F.3d 1275, 1280

(10th Cir. 1998). Here, PRMI does not contest Ms. Flitton’s status as a prevailing

party; rather, it only challenges the reasonableness of the district court’s fee

award. Because the district court “is in a better position than an appellate court to

determine the amount of effort expended and the value of the attorney’s services,”

we review an attorney’s fee award for abuse of discretion. Starrett v. Wadley,

876 F.2d 808, 825 (10th Cir. 1989). 

“The most useful 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); see also

Robinson, 160 F.3d at 1281 (“[A] court must begin by calculating the so-called

‘lodestar amount’ of a fee, . . . [which] is the product of the number of attorney

hours ‘reasonably expended’ and a ‘reasonable hourly rate.’”). This calculation,

however, does not end the district court’s inquiry when, as in this case, the

prevailing party succeeds on only some of her claims. Hensley, 461 U.S. at 434. 

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Indeed, the Supreme Court has instructed that in such cases, two additional

questions must be considered: (1) whether the plaintiff’s successful and

unsuccessful claims were related; and (2) whether the plaintiff’s overall level of

success justifies a fee award based on the hours expended by plaintiff’s counsel. 

Id. 

A. The District Court Did Not Abuse Its Discretion by Awarding Ms. Flitton

Fees for the Second Jury Trial

PRMI first argues that the district court should not have awarded Ms.

Flitton any fees associated with her counsel’s work on the second jury trial

because that trial resulted in a “complete defense verdict,” and the discrimination

and punitive damages claims litigated therein are completely unrelated to Ms.

Flitton’s successful retaliation claim. “Where the plaintiff has failed to prevail on

a claim that is distinct in all respects from his successful claims, the hours spent

on the unsuccessful claim should be excluded in considering the amount of a

reasonable fee.” Id. at 440. If, however, a plaintiff presents multiple related

claims, “failure on some claims should not preclude full recovery [of attorney’s

fees] if [the] plaintiff achieves success on a significant, interrelated claim.” Jane

L. v. Bangerter, 61 F.3d 1505, 1512 (10th Cir. 1995). Indeed, “[w]here a lawsuit

consists of related claims, a plaintiff who has won substantial relief should not

have his attorney’s fee reduced simply because the district court did not adopt

each contention raised.” Hensley, 461 U.S. at 440; see also Robinson, 160 F.3d at

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1283 (recognizing that many civil rights suits involve related claims and holding

that “[i]n such cases, it is inappropriate for a district court to evaluate the

individual claims as though they were discrete and severable”). In the context of

fee awards, we have held that claims are related if they are based on a common

core of facts or are based on related legal theories. Jane L., 61 F.3d at 1512. 

The district court concluded that Ms. Flitton’s successful retaliation claim

and her unsuccessful discrimination and punitive damages claims were

interrelated. We agree. As the district court pointed out, in the second jury trial

Ms. Flitton pursued punitive damages for the retaliation claim on which she had

obtained a jury verdict in the first trial. In these circumstances, it is difficult to

distinguish between the time Ms. Flitton’s attorneys spent on the retaliation claim

generally and the time they spent on her claim for punitive damages based on

PRMI’s unlawful retaliation. See Hensley, 461 U.S. at 435 (“Much of counsel’s

time will be devoted generally to the litigation as a whole, making it difficult to

divide the hours expended on a claim-by-claim basis.”). Furthermore, during the

second jury trial, Ms. Flitton alleged that her termination was discriminatory. 

This claim concerns a crucial underlying fact that was also addressed in Ms.

Flitton’s successful retaliation claim—the reason for her termination. Thus, the

unsuccessful claims raised by Ms. Flitton in the second jury trial were not distinct

in all respects from the successful claims she pursued in the first jury trial, and

the district court did not abuse its discretion by refusing to exclude the fees

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accrued during the second jury trial from Ms. Flitton’s ultimate fee award.

B. The District Court Did Not Abuse Its Discretion by Refusing to Reduce Ms.

Flitton’s Fee Award Based on Her Degree of Success

PRMI also contends that the district court erred by not reducing Ms.

Flitton’s fee award based on her degree of overall success in this lawsuit. The

Supreme Court has instructed that in calculating a reasonable fee award, “the

most critical factor is the degree of success obtained.” Id. at 436. Although

“[t]here is no precise rule or formula” for assessing the plaintiff’s degree of

success, “[a] reduced fee award is appropriate if the relief, however significant, is

limited in comparison to the scope of the litigation as a whole.” Id. at 436, 440. 

 PRMI contends that because Ms. Flitton succeeded on only one out of five

causes of action listed in her initial complaint and received only $354,703.05 in

total damages out of the $27,902,065.58 she sought, she obtained a limited degree

of overall success and her fee award should have been reduced accordingly. 

Indeed, PRMI repeatedly emphasizes that Ms. Flitton ultimately received only

about one percent of the total damages she sought. 

We have rejected the mechanical approach to assessing a plaintiff’s degree

of overall success that PRMI endorses. In Jane L., we reversed a district court’s

decision to reduce the lodestar by seventy-five percent based on the plaintiff’s

success on only two out of eight claims. Jane L., 61 F.3d at 1511; see also

Hensley, 461 U.S. at 435 n.11 (“We agree with the District Court’s rejection of a

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mathematical approach comparing the total number of issues in the case with

those actually prevailed upon.”) (quotations omitted). There, we held that “the

district court must make a qualitative assessment to determine what less-thanperfect results are ‘excellent,’ justifying full recovery, or to what extent

plaintiffs’ ‘limited success’ should effect a reduction in the lodestar.” Jane L., 61

F.3d at 1511.

Here, the district court rejected PRMI’s request for a reduction of the fee

award based on Ms. Flitton’s level of success, concluding that Ms. Flitton

“obtained substantial success from the first jury trial,” and that “she obtained a

substantial amount of damages.” Flitton v. Primary Residential Mortgage, Inc.,

No. 2:03-CV-481-DAK, 2009 WL 13572006, at *5, *8 (D. Utah May 7, 2009). 

Although Ms. Flitton’s ultimate award did not approach the amount of damages

she sought, her award of over $350,000 in this Title VII suit was not

inconsequential. See Hensley, 461 U.S. at 435 n.11 (“Nor is it necessarily

significant that a prevailing plaintiff did not receive all the relief requested.”). 

Accordingly, the district court’s assessment of her overall level of success was

not an abuse of discretion. 

C. The District Court Did Not Abuse Its Discretion by Refusing to Reduce Ms.

Flitton’s Fee Award Based on Her Attorneys’ Billing Entries

PRMI next argues that the district court erred by not reducing Ms. Flitton’s

fee award based on her attorneys’ allegedly vague and nondescript billing entries. 

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“Plaintiffs’ burden in an application for attorneys fees is to ‘prove and establish

the reasonableness of each dollar, each hour, above zero.’” Jane L., 61 F.3d at

1510 (quoting Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1210 (10th Cir.

1986)). “Plaintiff’s counsel, of course, is not required to record in great detail

how each minute of his time was expended. But at least counsel should identify

the general subject matter of his time expenditures.” Hensley, 461 U.S. at 437

n.12. When examining the adequacy of an attorney’s billing entries, we are

primarily concerned with the district court’s ability to evaluate the propriety of

the fee request based on the specific billing entries. See Crumpacker v. Kan.

Dep’t of Human Res., 474 F.3d 747, 757 (10th Cir. 2007) (“The law does not

require the district court to reduce its fee award where it finds no difficulty in

evaluating the propriety of an attorney’s billing.”). Indeed, in Crumpacker, we

affirmed the district court’s fee award, which included fees for six billing entries

that were entirely blacked out and unreadable, because “the district court

specifically found that the blacked out entries cause no problems in determining

the validity or propriety of the work performed.” Id. (quotations and alterations

omitted). 

Here, the district court conducted a thorough review of Ms. Flitton’s

attorneys’ billing entries and reduced the fee award based on the inadequacy of

eleven specific entries. Furthermore, the district court stated, “[w]hile the court

does not believe that the entries of Plaintiff’s counsel are ideal, it finds most of

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the entries adequately descriptive for purposes of reviewing the fee application.”

Flitton, 2009 WL 1357206, at *6. Accordingly, the district court concluded that

it was able to make a fair assessment of the reasonableness of Ms. Flitton’s

claimed fees based on the majority of the billing entries she submitted, and it

refused to award her fees based on specific inadequate entries. After examining

the allegedly vague and nondescript entries emphasized by PRMI, we conclude

that the district court did not abuse its discretion by refusing to further reduce Ms.

Flitton’s fee award based on her attorneys’ billing entries. 

D. The District Court Correctly Concluded that It Lacked Jurisdiction to

Award Ms. Flitton Appeal-Related Fees

In her cross-appeal, Ms. Flitton argues that the district court erred by

concluding that it lacked jurisdiction to award her appeal-related fees because she

failed to first request those fees in this court. In Hoyt v. Robson Cos., Inc., 11

F.3d 983, 985 (10th Cir. 1993), we recognized that “an appellate court has

discretion to award attorney’s fees on appeal.” Accordingly, we established the

general rule that in order for a prevailing party to obtain appeal-related fees, “an

application for [such] fees must first be made to our court.” Id. Indeed, we

concluded that a district court generally lacks jurisdiction to consider the

propriety of appeal-related fees if the prevailing party does not first seek such

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We respectfully cannot agree with the dissent’s contention that Hoyt can

simply be disregarded by this subsequent panel. In Hoyt, we noted that “[t]hough

we have addressed awards of appeal-related attorneys’ fees pursuant to

authorizing statutes, we have not previously confronted the jurisdictional

requirements applicable in applying such fees.” 11 F.3d at 984 (emphasis added). 

Considering, for the first time in Hoyt, the jurisdictional requirements applicable

in applying for appellate fees, we went on to “hold that the district court did not

have jurisdiction to award appeal-related attorneys’ fees in this case.” Id. at 985

(emphasis added). Regardless of the propriety of Hoyt’s jurisdictional ruling, we

are bound by that prior decision. See Crumpacker, 474 F.3d at 755–56

(recognizing that Hoyt is “the law of this circuit,” and that “the rule of Hoyt binds

us”); see also United States v. Walling, 936 F.2d 469, 472 (10th Cir. 1991) (“One

panel of the court cannot overrule circuit precedent.”). 

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fees on appeal.1 Id. 

In Crumpacker, we reaffirmed the Hoyt rule, stating that “appeal-related

fees . . . must generally be awarded by us.” 474 F.3d at 756. Nevertheless, we

recognized a narrow exception for interlocutory appeal-related fees in cases

brought under Title VII or other fee-shifting statutes. Id. Under these limited

circumstances, we held that “parties who prevail on interlocutory review in this

court, and who subsequently become prevailing parties under Title VII or another

fee-shifting provision at the conclusion of merits proceedings, are implicitly

entitled to reasonable attorneys’ fees related to the interlocutory appeal.” Id. 

Ms. Flitton asks us to extend Crumpacker beyond interlocutory appeals. 

She contends that, after Crumpacker, all prevailing parties under Title VII are

entitled, as a matter of law, to all appeal-related fees; therefore, requesting such

fees from this court in the first instance is not necessary. We reject this broad

reading of Crumpacker. First, this extension of Crumpacker is inconsistent with

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the narrow language used in that case. Nowhere in Crumpacker did we state or

suggest that its rule applies to cases other than those in which a party succeeds on

interlocutory appeal and subsequently becomes a prevailing party. Those are not

the circumstances of Ms. Flitton’s case. Second, Ms. Flitton’s reading of

Crumpacker would effectively strip this court of its discretion to award appealrelated fees in all Title VII cases. That discretion, however, was the fundamental

premise on which the Hoyt rule was based, see Hoyt, 11 F.3d at 985 (“[I]n order

for us to properly exercise our discretion, an application for appeal-related

attorneys’ fees must first be made to our court.”), and Crumpacker did not (and

could not) eviscerate it. See Crumpacker, 474 F.3d at 755–56 (recognizing that

Hoyt is “the law of this circuit,” and that “the rule of Hoyt binds us”); see also

United States v. Walling, 936 F.2d 469, 472 (10th Cir. 1991) (“One panel of the

court cannot overrule circuit precedent.”). Accordingly, as we stated in

Crumpacker, “[i]t is the law of this circuit that ‘absent an explicit statutory

provision, in order for us to properly exercise our discretion, an application for

appeal-related attorneys’ fees must first be made to our court.’” Crumpacker, 474

F.3d at 755 (quoting Hoyt, 11 F.3d at 985) (alterations omitted). Ms. Flitton

never requested appeal-related fees from this court during her prior appeal and

she has not requested them at any point during this appeal. Therefore, the district

court correctly concluded that it was without authority to grant such fees in the

first instance. 

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III. CONCLUSION

For the foregoing reasons, we AFFIRM the decision of the district court. 

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09-4108, 09-4120, Flitton v. Primary Residential Mortgage, Inc.

McKAY, concurring in part and dissenting in part.

I respectfully dissent from Section II.A of the majority opinion, in which

the court holds that Ms. Flitton was appropriately awarded fees for the

unsuccessful claims she raised in the second jury trial because these claims were

interrelated to the successful claims she had pursued in the first jury trial. I

disagree with this analysis and therefore would reverse and remand for the district

court to impose an award excluding fees accrued during Ms. Flitton’s entirely

unsuccessful second jury trial.

A fee award in a Title VII case is anchored in prevailing party status, 42

U.S.C. § 2000e-5(k), which means that a plaintiff must succeed on at least some

significant claim for relief to be entitled to attorney fees. See Hensley v.

Eckerhart, 461 U.S. 424, 433 (1983). Where a plaintiff does not obtain success

on all of her claims, “[t]he extent of a plaintiff’s success is a crucial factor that

the district courts should consider carefully in determining the amount of fees to

be awarded,” id. at 438 n.14, and “no fee may be awarded for services” on an

unsuccessful claim that is distinctly different from the successful claims for

relief, id. at 435. However, when a plaintiff achieves only partial success on

interrelated claims, it would be unmanageable or unworkable to separate the hours

spent on successful and unsuccessful claims. See id. (holding that it may be

inappropriate to limit a fee award where claims are interrelated because in such

cases it will be “difficult to divide the hours expended on a claim-by-claim

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basis”). The courts have therefore developed the interrelatedness rule to cut the

Gordian knot, permitting fees to be awarded for the full time spent on the

interrelated claims rather than requiring the difficult or even impossible task of

separating the time spent on interrelated successful and unsuccessful claims. 

In the usual case, this interrelatedness rule is eminently sound. Where the

time spent on interrelated claims is inherently separable, however, the application

of this rule strikes me as both unnecessary and inconsistent with the purpose

behind the statutory provision for fees.

I agree with the majority that the claims in this case are interrelated and,

therefore, that Ms. Flitton should be compensated for all of the time her attorneys

spent preparing for the first trial, even the time spent on the claims that ultimately

turned out to be unsuccessful. In preparing for the first trial, Ms. Flitton’s

attorneys worked on interrelated successful and unsuccessful claims, and it would

be difficult to distinguish between the time spent on the successful retaliation

claim and the time spent on the unsuccessful punitive damages and discrimination

claims. However, I am not persuaded that Ms. Flitton should be further

compensated for the completely unsuccessful pursuit of her punitive damages and

discrimination claims on remand. Following our decision on appeal, Ms. Flitton

began what was, in effect, a second lawsuit on the remanded claims—an action in

which she did not prevail. The fact that these claims were interrelated to another

claim on which she had previously succeeded in another proceeding is irrelevant,

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in my view, to the question of whether she should be awarded fees for the

inherently separable fees incurred during this unsuccessful proceeding. Under the

circumstances of this case, I would hold that the district court abused its

discretion by awarding fees for a proceeding in which Ms. Flitton was entirely

unsuccessful.

I concur with the remainder of the majority’s opinion. I note in particular

that, although I find persuasive Judge Gorsuch’s argument that the rule stated in

Hoyt would be more appropriately treated as a procedural rule rather than a

jurisdictional barrier, I agree with Judge Tacha that we are not free to ignore our

treatment in Hoyt of this issue as a jurisdictional one. This issue may warrant

further consideration by the en banc court, but this panel is currently bound by

Hoyt’s holding that a district court lacks jurisdiction to award appellate fees in

this type of case. 

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09-4108, 09-4120, Flitton v. Primary Residential Mortgage, Inc.

GORSUCH, J., concurring in part and dissenting in part.

I am in full agreement with the bulk of the court’s thoughtful opinion. My

disagreement is confined to the holding in Section II.D, where the court affirms

the district court’s determination that it lacked jurisdiction over Ms. Flitton’s

request for appellate attorney fees. Respectfully, I would hold that the district

court possessed jurisdiction over Ms. Flitton’s fee request and so would reverse

its judgment. 

Facts

The critical facts are these. Ms. Flitton brought claims for discrimination

and retaliation under Title VII. The district court granted judgment as a matter of

law (JMOL) against Ms. Flitton on her discrimination claim before the conclusion

of trial but at the same time allowed her retaliation claim to go to the jury. After

the jury found for Ms. Flitton and awarded $50,000 in damages on her retaliation

claim, the district court reversed course, however, and decided to grant JMOL

against Ms. Flitton on that claim, too. Ms. Flitton appealed and we reversed the

district court’s JMOL decisions on both the discrimination and retaliation claims. 

We also reversed its JMOL decision that she wasn’t entitled to punitive damages

as a matter of law. But the upshot of our decision was hardly a final judgment;

much remained to be done on remand. On Ms. Flitton’s discrimination claim, a

jury still had to decide its merits (she eventually lost). On her retaliation claim,

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we restored the $50,000 verdict she’d won but Ms. Flitton still had to pursue back

and front pay questions (she eventually won an additional $304,703.05 in back

pay). And the question of punitive damages was revived and left for the jury to

decide. When all these matters were finally said and done, Ms. Flitton sought

attorney fees as a prevailing party. The district court granted fees for work done

by her attorneys in that court, but it held that it lacked jurisdiction to award any

fees associated with Ms. Flitton’s appeal. 

The Jurisdictional Misnomer

The court today agrees with and affirms the district court’s jurisdictional

holding. But how can this be so? How did the district court lack jurisdiction to

award fees associated with the appeal that led to the restoration of Ms. Flitton’s

claims and her eventual partial success on remand? The terms of Title VII don’t

appear to compel such a result. See 42 U.S.C. § 2000e-5(k) (instructing simply

that “the court, in its discretion, may allow the prevailing party . . . a reasonable

attorney’s fee”). And, to make the assessment of a reasonable fee, courts

traditionally wait until the end of the case, when the dust has settled and they can

sensibly assess the “results obtained” and the degree of success achieved by the

plaintiff. Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). So where is it written

that a district court lacks jurisdiction to award fees, in the normal course at the

case’s end, for the plaintiff’s reasonable efforts in an intervening appeal that was

crucial to the ultimate success she eventually obtained in the case?

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The district court and this court submit that Hoyt v. Robson Cos., 11 F.3d

983 (10th Cir. 1993), laid down such a rule. But Hoyt merely held that, after

winning at trial and successfully defending that victory on appeal, the plaintiff

should seek fees associated with the appeal in this court rather than the district

court. Id. at 984-85. There may be nothing wrong with such a rule as a matter of

sound judicial administration and this court’s supervisory authority; indeed, at

least the Eighth and Eleventh Circuits have adopted a variation of it in their local

rules. See Little Rock Sch. Dist. v. Arkansas, 127 F.3d 693, 696-97 (8th Cir.

1997); Gray ex rel. Alexander v. Bostic, No. 08-15152, slip op. at 14-15 (11th

Cir. Aug. 2, 2010). But such a claims processing rule “cannot and does not affect

the jurisdiction of the district courts.” Little Rock Sch. Dist., 127 F.3d at 696. 

The jurisdiction of the federal courts is governed by the articles of the

Constitution and Acts of Congress, not by administrative claims processing rules.

To be sure, Hoyt uses the word “jurisdiction[al]” to describe the nature of

its holding, though it does so in passing and without explanation. See 11 F.3d at

984-85. And the excessively exuberant use of the word “jurisdiction” to mean

many things other than the absence of constitutional or statutory power to

adjudicate a matter is by now well known. See Steel Co. v. Citizens for a Better

Env’t, 523 U.S. 83, 90 (1998) (“‘Jurisdiction’, it has been observed, is a word of

many, too many, meanings . . . .” (quotation marks omitted)); Rumsfeld v. Padilla,

542 U.S. 426, 434 n.7 (2004) (“The word ‘jurisdiction,’ of course, is capable of

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different interpretations.”); Dartt v. Shell Oil Co., 539 F.2d 1256, 1260 (10th Cir.

1976) (noting the “conceptional difficulties . . . caused by an overly broad usage

of the term ‘jurisdictional’”). Neither can the misuse of that term transform what

at most might be an administrative error into ultra vires conduct. We have

previously recognized as much in this very context, holding that the failure to

follow administrative rules governing fee applications may be error but not extrajurisdictional behavior. See Huffman v. Saul Holdings Ltd. P’ship, 262 F.3d

1128, 1133 (10th Cir. 2001) (holding “the district court lacked authority, not

jurisdiction, to award appellate fees” already denied by this court (emphasis

added)); see also Little Rock Sch. Dist., 127 F.3d at 697 (analyzing failure to

follow administrative rule for abuse of discretion, not for lack of jurisdiction). 

From all this, it seems plain that, if any problem lurks here, it can’t be a

jurisdictional one. Congress’s statute does not deprive the district court of

authority to issue an award of appellate fees. To the contrary, Title VII’s very

point is to entitle prevailing civil rights plaintiffs to their reasonable attorney

fees. It is not for us to undo that legislative judgment by erecting new and

dubious faux-jurisdictional hurdles to recovery. Because the district court erred

in holding itself without jurisdiction to award fees, I would reverse and

respectfully cannot join Section II.D. of the majority’s opinion today. 

From Jurisdiction to Claims Processing

Recognizing that the district court’s holding that it lacked jurisdiction is in

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error, one might try to re-conceive its decision as resting on the claims processing

rule that appellate fees should be awarded by the court of appeals, not the district

court. Of course this isn’t the basis of the district court’s holding or the court’s

decision today. But even if it were, it would be insufficient to sustain the denial

of fees in this particular case.

When it comes to the questions whether and when a plaintiff may seek

appellate fees from district courts, we’ve sent mixed messages. In Hoyt, the

plaintiff won in the district court and successfully defended her judgment on

appeal. Because of this, everything needed to determine whether plaintiff

qualified as a prevailing party as well as the degree of her success and whether

she achieved success on all of her claims, the critical Hensley inquiries, was

before us. We were well equipped in these circumstances to deal with a fee

request for work done in connection with the appeal and we held that, in these

circumstances, appellate fee award applications are best directed to us. Yet, in

Crumpacker v. Kansas Department of Human Resources, 474 F.3d 747, 756 (10th

Cir. 2007), we affirmed a district court’s fee award that included fees associated

with the plaintiff’s defense of an interlocutory appeal. We did so explaining that

the appeal in question didn’t come at the end of the case (as in Hoyt) but in the

middle of things, before the case reached its end and before the Hensley inquiries

(was plaintiff a prevailing party? what degree of success did she achieve?) could

be completed, or even begun. In these circumstances, we held it was appropriate

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for the district court to award appellate fees. Id. at 756.

Given the mixed messages we’ve sent about the propriety of district courts

awarding appellate fees, what is a plaintiff — or a district court — to do? 

Especially where, as here, the case falls somewhere in between Hoyt and

Crumpacker? Unlike Hoyt, the appeal in this case didn’t come at the end of all

trial court proceedings, when all the information necessary to undertake the

Hensley inquiries was before us. In Ms. Flitton’s appeal, there’s simply no way

we could’ve awarded fees; too much remained to be done on remand before

anyone could know what degree of success she would ultimately obtain. But

unlike Crumpacker, the appeal in this case did resolve at least one Hensley

question: it made clear that Ms. Flitton was a prevailing party by reinstating the

jury’s verdict in her favor on the retaliation claim, even though the degree of her

success couldn’t be ascertained until after further proceedings on remand. No

doubt, a great many other appeals from JMOL decisions — or summary judgment,

or dismissals under Fed. R. Civ. P. 12(b) — will fall in the cracks between Hoyt

and Crumpacker, as this one does. Our mixed messages, then, leave a great many

cases in a legal limbo.

While certain other circuits, like the Eighth and Eleventh, have adopted

formal rules of court to alert potentially prevailing parties where to file their

attorney fee claims, we haven’t. Perhaps we should. But in the absence of a clear

claims processing rule or case law precedent controlling the plaintiffs’

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circumstances, we should not strain to deny fees. Congress has directed the

federal courts to calculate a fair award for the prevailing party in civil rights

cases. It would be a “procedural contortion,” in defiance of that statutory

mandate to deny a prevailing plaintiff her fees simply for failing to imagine in

advance what administrative claims processing rule we might adopt. Little Rock

Sch. Dist., 127 F.3d at 697. If the plaintiff hasn’t defied a clearly applicable rule

or precedent, she should not be denied the fees Congress has authorized. Unless

we afford litigants the benefit of clarity, they should receive the benefit of the

doubt. 

Not only do we lack any precedent or rule requiring plaintiffs in Ms.

Flitton’s circumstance to seek fees in the first instance from us. Neither is it at

all clear why we should want to adopt such a claims processing procedure. While

Ms. Flitton’s appeal did answer the threshold Hensley inquiry, establishing her as

a prevailing party, it left the question what claims she would ultimately succeed

on, as well as the degree of success she’d ultimately achieve, undecided —

discernable only after extensive further proceedings in the district court. In such

circumstances (unlike those in Hoyt), a rule requiring a plaintiff to apply for

appellate fees from us would be pointless. We could do no more than remand the

fee matter, along with the merits, to the district court for resolution at the end of

its proceedings. We could order, then, no more than what Ms. Flitton herself

sought when she applied for fees at the conclusion of her case. The law does not

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normally require people to do pointless things — and surely it shouldn’t do so. 

Yet, requiring a plaintiff in Ms. Flitton’s shoes to file a piece of paper with us

seeking fees at the time of her appeal could be no more than that: at best, a

pointless exercise; at worst, a hidden trap to ensnare the unwary and deny them

what Congress has said they should receive. 

The court today worries that allowing a district court to award appellate

fees in this case would risk “strip[ping] this court of its discretion to award

appeal-related fees.” Maj. Op. at 12. But the court’s concern seems to presume

that this court has some rule absolutely forbidding district courts from

considering appellate fees, which Crumpacker makes manifest we don’t. And its

worry proves too much because it would require us not just to deny fees here but

also to overrule Crumpacker, which we can’t. Besides, allowing the district court

to assess fees in this case would hardly leave this court powerless: we always

possess the power to review on appeal the reasonableness of any award the

district court may authorize (indeed, in Crumpacker we held that we will review

the district court’s award of appellate fees de novo, 474 F.3d at 756). It’s unclear

what’s wrong with that arrangement.

From Section II.D, I respectfully dissent.

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