REVISED JULY 30, 2013

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-10586

RICHARD MILLER, 

Plaintiff - Appellee Cross-Appellant

v.

RAYTHEON COMPANY, 

Defendant - Appellant Cross-Appellee

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Consolidated with 11-10988

RICHARD MILLER,

Plaintiff - Appellant

v.

RAYTHEON COMPANY, 

Defendant-Appellee

Appeals from the United States District Court

for the Northern District of Texas

Before JONES, GARZA, and PRADO, Circuit Judges.

United States Court of Appeals

Fifth Circuit

F I L E D

May 2, 2013

Lyle W. Cayce

Clerk
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EDITH H. JONES, Circuit Judge:

A jury found that Raytheon Company (“Raytheon”) willfully violated the

Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., and

the Texas Commission on Human Rights Act (“TCHRA”), TEX. LAB. CODE

§ 21.001 et seq., by terminating Richard Miller (“Miller”) because of his age. The

district court denied Raytheon’s motion for judgment as a matter of law

(“JMOL”), substantially reduced the jury’s finding of $17 million in damages,

and awarded attorneys’ fees. Both parties appealed. We affirm the finding of

liability, affirm in part the award of liquidated damages, and vacate the

liquidated damages award for an enhanced pension because it was a future, not

pastloss, vacate the damages for mental anguish, reject Miller’s issues on crossappeal, and remand for reconsideration of the front pay award.

I. Background

Miller worked for Raytheon or a predecessor company for almost three

decades in a variety of roles, primarily in supply chain management. In 2006,

Miller was moved to a stand-alone role working on special projects, where he

reported to Robert Lyells (“Lyells”). Miller initially performed well in his new

position, earning a “Meets Expectations” rating in March 2007. After failing to

meet some deadlines, however, Miller received a “Needs Improvement” rating

on his 2007 mid-year review. 

Raytheon initiated a reduction in force (“RIF”) in early 2008. Like all

other managers, Lyells reviewed his employees for a possible headcount

reduction. Raytheon policy dictated that Lyells evaluate his employees,

subdivide them into “decisional units,” rank them based on a four-factor
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analysis, and develop a list of employees to recommend for reduction. 

Lyells placed the then 53-year-old Miller and four other employees (ages

34, 49, 54, and 55) in decisional units that were considered for termination. A

46-year-old woman who worked in the same organization as Miller and had

similar job responsibilities was placed in a decisional unit that was not

considered for the RIF. Lyells testified that he recommended that Miller be

included in the layoff after determining that Miller’s job function was

non-essential and his duties could be absorbed by three other employees.

Although Miller was purportedly targeted for the RIF due to a budgetary

shortfall, at that time Miller’s job was neither charged to Lyells’s budget nor

costing his organization any money. The only employee in the RIF pool not

recommended for termination was the 34-year-old. Lyells offered that younger

employee retraining and identified a new task for her. 

Because Miller had more than twenty years of service, Raytheon’s internal

Long Service Review Board (“LSRB”) reviewed Lyells’s lay off proposal. The

LSRB directed Human Resources Director Allen Reid andLyells to search for job

opportunities for Miller. Lyells contacted colleagues in other groups at Raytheon

to determine whether there were any other positions that fit Miller’s skills. He

was told there were none, although Miller presented evidence at trial that he

was qualified for several positions. Based on the responses from Reid and Lyells,

the LSRB approved the layoff. Lyells and Reid terminated Miller at a meeting

on March 13, 2008. Miller and his wife testified that the layoff made Miller feel

“sucker-punched” and caused him chest pain, back pain, sleep disturbances, and

emotional problems. 
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1

In October 2008, Raytheon’s response to Miller’s EEOC charge incorrectly stated that

he had not applied for any other jobs at the company. 

4

Miller used Raytheon’s internal job board and worked with the human

resources (“HR”) department to find a new job at Raytheon. On March 27, 2008,

Miller met with Amos Wilson from HR and complained that he would be unable

to get another job at Raytheon due to his “Needs Improvement” rating. Wilson

told Miller to apply for jobs at a lower salary grade and in a different group.

When Miller asked Wilson why he would not be considered for a job in the

supply chain group, Wilson simply responded, “Because you wouldn’t be

considered.” Miller applied for four jobs at Raytheon, but he was not re-hired.1

Miller filed claims for age discrimination against Raytheon in federal

district court under the ADEA and the TCHRA. His Complaint asserted that

Raytheon (1)terminated him because of his age; and (2) failed to consider, assist,

or place him in another job due to his age. At trial, however, the jury was only

asked whether Raytheon discharged Miller because of his age. The jury found

that Raytheon terminated Miller in willful violation of both statutes and

awarded $352,179 in back pay and $227,000 in lost pension benefits, both of

which were doubled as ADEA liquidated damages; $1 million in mental anguish

damages; and $15 million in punitive damages pursuant to TCHRA.

Raytheon filed motions for JMOL and a new trial. In denying the motion

for JMOL, the district court held that the evidence was sufficient to support the

jury’s findings; ruled that lost pension benefits were a proper element of back

pay rather than front pay; approved liquidated damages based on the jury’s

finding of willfulness; remitted the jury’s award of $1 million in mental anguish
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damages to $100,000; declined to award punitive damages in order to prevent

a double recovery; and awarded Miller $186,628, approximately one year’s front

pay. The district court did not rule on Raytheon’s motion for a new trial. After

the district court entered judgment, Miller moved for $711,323 in attorneys’fees.

The court granted the motion in part, reducing the number of hours and the

hourly rate for an award of $488,437.08. Both parties appealed. 

II. Discussion

Raytheon argues thatthe district court erred in (1) denying JMOL because

the evidence was insufficient to support the jury’s finding of age discrimination

under the ADEA and TCHRA; (2) refusing to grant its motion for a new trial;

(3) concluding the evidence supported the jury’s finding of willful discrimination;

(4) allowing the jury to consider as back pay the loss of pension benefits set to

vest by the trial date; and (5) concluding that the evidence supported the jury’s

finding of mental anguish. In his cross-appeal, Miller argues that the district

court erred in (1) denying recovery for both liquidated damages under the ADEA

and punitive damages under the TCHRA; (2) concluding that the non-economic

damages cap under the TCHRA is constitutional according to Texas law;

(3) awarding front pay from the date of the verdict rather than from the date of

judgment; (4) denying prejudgment interest; and (5) reducing the attorneys’ fees.

We address each issue in turn. 

A. Raytheon’s Claims
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2 The district court submitted the question of Raytheon’s liability under TCHRA as

whether age was a “motivating factor” in its decision. Because Raytheon does not contest this

6

1. Judgment as a Matter of Law

We review a district court’s denial of a motion for JMOL de novo, applying

the same standard as the district court. Goodner v. Hyundai Motor Co., Ltd.,

650 F.3d 1034, 1039 (5th Cir. 2011). “The jury’s verdict can only be overturned

if there is no legally sufficient evidentiary basis for a reasonable jury to find as

the jury did.” Guile v. United States, 422 F.3d 221, 225 (5th Cir. 2005) (internal

quotation omitted).

The ADEA and the TCHRA prohibit employers from discharging or

otherwise discriminating against any individual because of his or her age.

McClaren v. Morrison Mgmt. Specialists, Inc., 420 F.3d 457, 461 (5th Cir. 2005).

The familiar burden-shifting framework set forth in McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973), applies to both statutes. Evans v.

City of Houston, 246 F.3d 344, 349 (5th Cir. 2001). Under this framework, the

employee carries the initial burden of establishing a prima facie case of age

discrimination. Machinchick v. PB Power, Inc., 398 F.3d 345, 350 (5th Cir.

2005). If he succeeds, the burden shifts to the employer to provide a legitimate,

nondiscriminatory reason for terminating employment. Id. If the employer

satisfies this burden, the burden shifts back to the employee to prove either that

the employer’s proffered reason was not true—but was instead a pretext for age

discrimination—or that, even ifthe employer’s reason is true, he was terminated

because of his age. Gross v. FBL Fin. Servs, Inc., 557 U.S. 167, 180, 129 S. Ct.

2343, 2352 (2009).2“[W]hen, as here, a case has been fully tried on its merits,
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submission on appeal, we have no occasion to examine the propriety of this decision. The jury

held for Miller.

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we do not focus on the McDonnell Douglas burden-shifting scheme.” Smith v.

Berry Co., 165 F.3d 390, 394 (5th Cir. 1999). Instead, we inquire whether the

record contains sufficient evidence to support the jury’s finding of age

discrimination. Id.

At trial, Miller presented undisputed evidence that Raytheon made

erroneous statements in its EEOC position statement. Miller was told not to

apply for jobs in supply chain management and was not selected for a new job

at Raytheon, despite Raytheon’s policy of searching “every corner of the earth”

and “exhausting all opportunities to place the individual” before releasing an

employee pursuant to a RIF. Although Raytheon emphasizes that these actions

occurred after Miller’s termination, the jury was entitled to view them as

circumstantial evidence of discrimination. Norris v. Hartman Specialty Stores,

Inc., 913 F.2d 253, 256 (5th Cir. 1990); see also Reeves v. Sanderson Plumbing

Prods., Inc., 530 U.S. 133, 147, 120 S. Ct. 2097, 2108 (2000) (“In appropriate

circumstances, the trier of fact can reasonably infer from the falsity of [an]

explanation that the employer is dissembling to cover up a discriminatory

purpose.”). Further, Miller presented evidence that at least two similarly-skilled

younger employees (ages 34 and 46) were not terminated despite being eligible

for the RIF. In totality, this and other evidence adduced by Miller is sufficient

for the jury to disbelieve Raytheon’s argument that Miller was treated the same

as younger employees, which is circumstantial evidence of age discrimination.

Uffelman v. Lone Star Steel Co., 863 F.2d 404, 408 (5th Cir. 1989). It is also
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undisputed that 77% ofthe employees laid off in supply chain management were

at least 48 years old. 

Considered in isolation, we agree with Raytheon that each category of

evidence presented at trial might be insufficient to support the jury’s verdict.

But based upon the accumulation of circumstantial evidence and the credibility

determinations that were required, we conclude that “reasonable men could

differ” about the presence of age discrimination. Boeing Co. v Shipman,

411 F.2d 365, 374 (5th Cir. 1969) (en banc), overruled in part on other grounds,

Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331 (5th Cir. 1997) (en banc).

Whether or not this court would have reached the same result, the Boeing

standard requires affirmance of the jury verdict. Smith v. Santander, 703 F.3d

316, 318 (5th Cir. 2012).

2. Motion for a New Trial

The district court did not rule on Raytheon’s alternative motion for a new

trial. A motion for a new trial not expressly ruled on is considered to have been

denied. Performance Autoplex II, Ltd. v. Mid-Continent Gas. Co., 322 F.3d 847,

862 (5th Cir. 2003). The denial of a motion for a new trial by the district court

“will be affirmed unless there is a clear showing of an absolute absence of

evidence to support the jury’s verdict.” Rivera v. Union Pacific R. Co., 378 F.3d

502, 506 (5th Cir. 2004). For the reasons just stated, and the fact that our

“standard of review in this situation is more deferential than our review of the

denial of a motion for [JMOL],” DP Solutions, Inc. v. Rollins, Inc., 353 F.3d 421,

431 (5th Cir. 2003), Raytheon’s arguments for a new trial lack merit.

3. Willful Discrimination under ADEA
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Raytheon contends that the district court erred by denying its motion for

judgment as a matter of law on this issue of willfulness. A violation of the ADEA

is willful, and liquidated damages may be awarded, when an employer must

have “kn[own] or show[n] reckless disregard for the matter of whether its

conduct was prohibited by the ADEA.” Trans World Airlines, Inc. v. Thurston,

469 U.S. 111, 126, 105 S. Ct. 613, 624 (1985); 29 U.S.C. § 626(b). This standard

applies to liability findings based on a company’s policy, as in Thurston, or its

decisions concerning specific individuals. Hazen Paper Co. v. Biggins, 507 U.S.

604, 617, 113 S. Ct. 1701, 1709 (1993). This court has “upheld jury findings of

willfulness when a jury’s finding of intentional violation of the ADEA necessarily

implied a finding that the employer’s proffered explanation for the adverse

employment action was pretextual.” Tyler v. Union Oil Co. of Cal., 304 F.3d 379,

398 (5th Cir. 2002); see West v. Nabors Drilling USA, Inc., 330 F.3d 379, 391-92

(5th Cir. 2003). On the other hand, we have overturned jury verdicts finding

willfulness where persuaded that no reasonable jury could have found that an

employer had knowingly or recklessly disregarded the ADEA. See, e.g., Russell

v. McKinney Hosp. Venture, 235 F.3d 219, 230 (5th Cir. 2000). The district court,

having observed the trial and carefully reviewed the evidence, concluded that

the facts here are “strikingly similar” to those in Russell. The court, however,

applied West, rather than Russell, on the basis that West appears to require

liquidated damages for willful violations unless an employer “incorrectly but in

good faith and non-recklessly believes that the statute permits a particular agebased decision.” West, 330 F.3d at 391.

We cordially disagree with the district court’s approach to this extent:
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West should not be read either to contradict Russell, or to artificially broaden the

traditional scope of “knowing” and “reckless disregard” of the law, or, in the end

to conflict with Hazen, which stated: “It is not true that an employer who

knowingly relies on age in reaching a decision invariably commits a knowing or

reckless violation of the ADEA.” Hazen, 507 U.S. at 617, 113 S. Ct. at 1709. As

Hazen, and discrimination law in general, emphasizes, these cases are all factsensitive and individualistic. Consequently, courts must heed Hazen’s forecast

that the Supreme Court “continue[s] to believe that the ‘knowing or reckless

disregard standard’ will create two tiers of liability across the range of ADEA

cases.” Id.

This is a close case, as the district court understood, because it is

undisputed that Raytheon had to undertake a reduction in force and that it

instituted facially age-neutral policies and processes according to which a

nondiscriminatory basis for Miller’s termination could be justified. Following

facially neutral RIF procedures, however, does not necessarily insulate an

employer from ADEA liability or from a sustainable finding of a willful violation.

Even if Raytheon superficially applied its nondiscriminatory RIF standards to

Miller, considerable circumstantial evidence added to the inference of age

discrimination that Raytheon went out of its way to avoid rehiring Miller, in

contravention of its usual procedures, and to obscure the reasons for its

decisions. JMOL was correctly denied on the issue of willfulness.

4. Pension Benefits

The jury awarded Miller $227,000 for an enhancement to his ultimate
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pension benefits that would have vested between the time of his termination in

March 2008 and trial in 2010. Raytheon argues that the district court

erroneously considered that amount as back pay, which was doubled as part of

Miller’s liquidated damages. We agree. The purpose of back pay is to “make

whole the injured party by placing that individual in the position he or she

would have been in but for the discrimination.” Sellers v. Delgado Cmty. Coll.,

839 F.2d 1132, 1136 (5th Cir. 1988). The question here is not whether Miller

could claim that he lost the opportunity to receive the enhanced pension when

he was terminated before it vested at age 55—Raytheon does not deny this

claim—but whether the enhanced benefit was properly treated as “back pay” or

“front pay.” A back pay award is denominated as damages under ADEA and is

subject to doubling if a willful violation is found. A front pay award rests within

the court’s equitable discretion and may not be doubled. Banks v.Travelers Cos.,

180 F.3d 358, 364-65 (2nd Cir. 1999).

Although Miller became 55 a few months before trial occurred, he had not

been employed by Raytheon for nearly two years. Whether he would have stayed

with the company during that period and actually qualified for the enhancement

is in this case a forward-looking determination from the point of his termination

and thus a judgment call like the equitable decision to award front pay. This is

reinforced by Miller’s testimony that he intended to work until age 70. Any

claim for present damages based on enhanced pension benefits he would not

receive until up to fifteen years later would have had to be discounted to present

value in order to represent Miller’s actual loss. See Skalka v. Fernald Env.

Restoration Mgmt., 178 F.3d 414, 426 (6th Cir. 1999). As this court noted,
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3 As we did in Bourdais, id. at 301 n.9., we decline to set out an inflexible rule on the

treatment of“pension benefits” as damages or front pay under ADEA. The term is ambiguous.

In some cases, it refers to employer contributions to a 401(k) plan; in others, to the right to

receive certain benefits in the future; in others, the accrual of seniority entitlements to

enhanced payments. Compare e.g., Sharkey v. Lasmo (AUL Ltd.), 214 F.3d 371, 374-75

(2d Cir. 2000) (“pension credits” in form of “service and salary credits” coextensive with back

pay award should be treated as back pay).

12

“awarding ‘present monetary damages for the loss of a prospective benefit that

either may not ultimately be earned, or that may be actually earned and

collected in full in the future, would go beyond making plaintiffs’ [sic] whole for

the unlawful discrimination they suffered. It would provide a windfall bonus.’”

Bourdais v. New Orleans City, 485 F.3d 294, 300-01 (5th Cir. 2007) (quoting the

district court).3 Absent such proof, the enhanced benefits should have been

treated as front pay. The judgment must be changed to treat this pension

enhancement as front pay and eliminate it as a basis for liquidated damages.

5. Mental Anguish

Raytheon challenges the district court’s reduced award of damages for

mental anguish. Compensatory damages for emotional harm, including mental

anguish, will not be presumed simply because the complaining party is a victim

of discrimination. DeCorte v. Jordan, 497 F.3d 433, 442 (5th Cir. 2007). The

award of damages must be supported by specific evidence of the nature and

extent of the harm. Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927, 938 (5th

Cir. 1996). Such evidence may include medical or psychological evidence in

support of the damage award. Id. at 940. A plaintiff’s conclusory statements

that he suffered emotional harm are insufficient. See Brady v. Fort Bend Cnty.,

145 F.3d 691, 719 (5th Cir. 1998). 
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The district court remitted the jury award for mental anguish from $1

million to $100,000. This claim is premised solely on the testimony of Miller and

his wife. Miller presented no expert medical or psychological testimony of the

extent of his mental anguish. While Miller testified that he suffered chest pain,

back pain, sleep disturbances, he also admitted that he did not take any overthe-counter pain or sleep medications. Nor did Miller seek the assistance of any

health care professional or counselor. DeCorte is distinguishable because

testimony from a psychologist supported the plaintiffs’ claims. DeCorte, 497F.3d

at 443. Because the Millers’ self-serving testimony is legally insufficient, we

vacate the mental anguish award.

B. Miller’s Claims

1. Double Recovery on Damages

Liquidated damages are available for a willful violation ofthe ADEA. The

TCHRA provides for punitive damages where the defendant acted with malice

or reckless indifference to the plaintiff’s rights. The jury found that Raytheon’s

actions were willful and awarded punitive damages. To prevent double recovery,

the district court awarded Miller only the higher liquidated damages. Miller

challenges this ruling.

When a federal claim overlaps with a pendant state claim, the plaintiff is

entitled to the maximum amount recoverable under either the federal or state

claim. Cryak v. Lemon, 919 F.2d 320, 326 (5th Cir. 1990). Miller brought an

action for a single injury under a federal statute and a state statute, both of

which protect against age discrimination. Accordingly, Miller may recover under
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4 TEXAS CONST. art. III, § 66(e) (“A legislative exercise of authority under Subsection

(c) ofthis section requires a three-fifths vote of allthe members elected to each house and must

include language citing this section.”).

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only one statute, and the district court correctly granted him the higher recovery

available under the ADEA.

2. TCHRA Damage Cap

The jury awarded Miller $15 million in punitive damages. Applying the

non-economic damage cap under the TCHRA, TEX. LAB. CODE § 21.2585, the

district court remitted the award to $300,000. Miller argues that § 21.2585

violates the Texas Constitution. If Miller’s contention is correct, then the

judgment would have to reflect the higher state law punitive damage award

rather than the ADEA liquidated damage award. The constitutionality of a state

statute is a question of law reviewed de novo. Nat’l Fed’n of the Blind of Tex.,

Inc. v. Abbott, 647 F.3d 202, 208 (5th Cir. 2011). Texas courts afford state

statutes a strong presumption of constitutionality under the Texas Constitution.

Walker v. Gutierrez, 111 S.W.3d 56, 66 (Tex. 2003).

The relevant section of the Texas Constitution states: “Notwithstanding

any other provision of this constitution, after January 1, 2005,the legislature by

statute may determine the limit of liability for all damages and losses, however

characterized, other than economic damages, in a claim or cause of action not

covered by Subsection (b) of this section.” TEX. CONST. art. III, § 66(c). Miller

argues that Subsection (c) either invalidates all existing statutory caps not

passed under the procedures detailed in Subsection (e)4or that the legislature

did not have authority to enact statutory caps before the passage of Subsection
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5 The closest thing to authority provided by Miller is a case allegedly casting the power

of the legislature to enact statutory caps prior to the passage of Subsection (c) into doubt.

Lucas v. United States, 757 S.W.2d 687, 690 (Tex. 1988) (enforcing the Texas Constitution’s

“Open Courts” guarantee). But the first criteria of the Sax v. Votteler, 648 S.W.2d 661, 666

(Tex. 1983), test applied by the Lucas court is that there be a cognizable common law right of

action. The right here is created by statute, and Lucas is inapposite.

6

“In an ADEA case where liquidated damages are awarded, a court may not award

prejudgment interest on either the backpay or the liquidated damage award.” McCann v. Tex.

City Refining, Inc., 984 F.2d 667, 673 (5th Cir. 1993).

15

(c). By its own terms, Subsection (c) only applies to legislation passed after

January 1, 2005. The statutory caps under the TCHRA long predate Subsection

(c), and Miller has not demonstrated how these caps were impliedly repealed.

Following the plain meaning of Article III, § 66(c), we hold that the district court

properly applied the non-economic damage cap under the TCHRA.5

3. Prejudgment Interest

Miller argues that the district court abused its discretion in denying

prejudgment interest. He concedes that prejudgment interest is not available

under the ADEA6 and cites no case supporting his theory that prejudgment

interest is available under the TCHRA. Accordingly, we hold that the district

court did not abuse its discretion. 

4. Front Pay

Awards of front pay are reviewed for abuse of discretion. Julian v. City of

Houston, 314 F.3d 721, 728 (5th Cir. 2002). The district court awarded Miller

front pay in the amount of $186,628.00, representing one year’s prospective

salary. Miller asserts that the court “effectively” only awarded two months of

front pay because ten months of the award accrued after the verdict and before
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final judgment. This argument lacks merit. The district court fully and

carefully considered the relevant circumstances in his written opinion and made

an informed decision not to attach the front pay award to a particular date.

There was no abuse of discretion.

The district court expressly considered the amount of other damages

before arriving at a front pay award. Among these was the liquidated damages

award it attached to Miller’s enhanced pension, which we have vacated and

shifted to front pay. We have also vacated the mental anguish award. Because

it is possible that these alterations might change the district court’s equitable

calculation of front pay, we remand the front pay award for reconsideration in

the court’s discretion.

5. Attorneys’ Fees

After the district court entered judgment, Miller filed a motion for

attorneys’ fees under the ADEA. The district court granted Miller’s motion in

part and denied it in part, reducing both the hours and the hourly rates

submitted. Miller only appeals the decrease in the hourly rates. The “district

court’s factual findings as to . . . the reasonable rates for attorneys’ fees are

reviewed by this court for clear error.” McClain v. Lufkin Indus., Inc., 649 F.2d

374, 380 (5th Cir. 2011).

Miller requested hourly rates of $825, $775, and $400 for his three primary

attorneys. These rates were supported by affidavits from two attorneys from his

attorneys’ firm and an outside attorney. After considering state bar surveys,

attorneys fees in similar cases, and the skills of Miller’s attorneys, the district

court reduced each attorney’s requested rate by 30%. The district court was
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entitled to rely on this information and discountthe evidence provided by Miller.

Van Ooteghem v. Gray, 774 F.2d 1332, 1338 (5th Cir. 1985). Contrary to Miller’s

assertions,the district court held Miller’s attorneys to the same standard as any

other attorneys. The record shows that the reduced hourly rates of $577.50,

$542.50, and $280 were reasonable, customary rates. Cf. Fluor Corp. v. Citadel

Equity Fund Ltd., No. 3:08-CV-1556-B, 2011 WL 3820704, at *5 (N.D. Tex.

Aug. 26, 2011) (“In other cases involving Texas lawyers, the hourly rates range

from $220 for associates to $510 for senior partners.”) (citing several cases and

the range of hourly rates). Because the district court did not commit clear error

in reducing the hourly rates, we affirm the award of $488,437.08 in attorneys’

fees.

III. Conclusion

For the foregoing reasons, we AFFIRM in part, VACATE in part, and

REMAND.