Central Pension Fund of the International Union of Operating Engineers & Participating Employers v. Ray Haluch Gravel Co. ( 2014 )


Menu:
  •           United States Court of Appeals
    For the First Circuit
    Nos. 11-1944
    11-1970
    CENTRAL PENSION FUND OF THE INTERNATIONAL UNION OF OPERATING
    ENGINEERS AND PARTICIPATING EMPLOYERS ET AL.,
    Plaintiffs, Appellants/Cross-Appellees,
    v.
    RAY HALUCH GRAVEL CO. ET AL.,
    Defendants, Appellees/Cross-Appellants.
    APPEALS FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. Michael A. Ponsor, U.S. District Judge]
    Before
    Thompson, Selya and Dyk,*
    Circuit Judges.
    Kenneth L. Wagner, with whom Blitman & King LLP was on brief,
    for appellants/cross-appellees.
    José A. Aguiar, with whom Doherty, Wallace, Pillsbury and
    Murphy, P.C. was on brief, for appellees/cross-appellants.
    March 11, 2014
    *
    Of the Federal Circuit, sitting by designation.
    SELYA,    Circuit   Judge.     Although     parties     to   civil
    litigation typically bear the burden of paying their own counsel,
    see Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 
    421 U.S. 240
    ,
    247 (1975), statutes and contractual provisions sometimes alter
    that burden.         When fee-shifting is in order, the trial judge,
    having superintended the litigation, has a superior coign of
    vantage — and he is expected to put his "acquired savvy . . . to
    good use" in determining the amount of the award. United States v.
    Metro. Dist. Comm'n, 
    847 F.2d 12
    , 15 (1st Cir. 1988).
    In this case, the plaintiffs, after a bench trial,
    obtained a money judgment.         Later, the judge made a fee award that
    pleased nobody.        Both sides have appealed, challenging the amount
    of the award.        After careful consideration, we conclude that the
    award       fell   within   the   spacious   encincture    of   the    judge's
    discretion.        Accordingly, we affirm.
    We sketch the relevant background and travel of the case.
    In 2009, the Central Pension Fund of the International Union of
    Operating Engineers and Participating Employers, together with
    various affiliates (collectively, the Fund), sued Ray Haluch Inc.
    (Haluch)1 to recover unpaid employee-related remittances allegedly
    due under a collective bargaining agreement (the CBA).              The Fund's
    1
    Although the Fund's complaint purported to name other
    defendants including Ray Haluch Gravel Co., the record reflects
    that Ray Haluch, Inc. is the only existing corporate entity among
    those named.
    -2-
    complaint included a prayer for attorneys' fees and costs pursuant
    to both the CBA and the Employee Retirement Income Security Act
    (ERISA), 29 U.S.C. §§ 1001-1461.
    A bench trial ensued and, on June 17, 2011, the district
    judge awarded the Fund damages in the amount of $26,897.41.     See
    Int'l Union of Oper'g Eng'rs, Local 98 Health & Welfare, Pension &
    Annuity Funds v. Ray Haluch Gravel Co. (Haluch I), 
    792 F. Supp. 2d 129
    , 138 (D. Mass. 2011).     The judge rejected the Fund's other
    claims for damages, including a claim for $156,988.54 allegedly
    owed on behalf of "John Doe" employees.2   See 
    id. at 137-38.
      In a
    separate and subsequent ruling, the judge awarded the Fund $18,000
    in attorneys' fees, together with expenses of $16,688.15.       See
    Int'l Union of Oper'g Eng'rs, Local 98 Health & Welfare, Pension &
    Annuity Funds v. Ray Haluch Gravel Co. (Haluch II), 
    792 F. Supp. 2d 139
    , 143 (D. Mass. 2011).   The award represented a steep reduction
    from the sum sought in the Fund's fee request.    See 
    id. The Fund
    appealed both the merits ruling and the fee
    award.   Haluch cross-appealed, asserting that the fee award was
    overly generous.    We entertained both appeals; held that the
    district court had committed reversible error with respect to its
    formulation of damages, see Cent. Pension Fund of the Int'l Union
    2
    A major part of the Fund's case centered    on its allegation
    that Haluch had employed certain unidentified      persons, whom it
    termed "John Doe" employees, without paying       required employer
    contributions to benefit plans. The Fund sought   to recover damages
    with respect to these unpaid remittances.
    -3-
    of Oper'g Eng'rs & Part'g Emp'rs v. Ray Haluch Gravel Co. (Haluch
    III), 
    695 F.3d 1
    , 7-11 (1st Cir. 2012), and therefore deferred any
    consideration of the claims of error directed at the decision in
    Haluch II, see 
    id. at 11
    & n.7.
    On certiorari, the Supreme Court reversed, holding that
    we lacked jurisdiction to review the Haluch I damage judgment
    because the Fund's notice of appeal was untimely as to that
    judgment.   See Ray Haluch Gravel Co. v. Cent. Pension Fund of the
    Int'l Union of Oper'g Eng'rs & Part'g Emp'rs (Haluch IV), 134 S.
    Ct. 773, 783 (2014); see also Fed. R. App. P. 4(a)(1)(A).    In the
    wake of the Supreme Court's remand order, we dismissed the Fund's
    appeal insofar as it sought to challenge the Haluch I damage
    judgment and reinstated the cross-appeals challenging the separate
    judgment for fees and costs.    We now turn to the assignments of
    error memorialized in these cross-appeals.
    We review the amount of an award of attorneys' fees for
    abuse of discretion.    See Spooner v. EEN, Inc., 
    644 F.3d 62
    , 66
    (1st Cir. 2011). This standard is highly deferential, and "we will
    set aside a fee award only if it clearly appears that the trial
    court ignored a factor deserving significant weight, relied upon an
    improper factor, or evaluated all the proper factors (and no
    improper ones), but made a serious mistake in weighing them."   Gay
    Officers Action League v. Puerto Rico (GOAL), 
    247 F.3d 288
    , 292-93
    -4-
    (1st Cir. 2001).    Within this rubric, a material error of law is
    always an abuse of discretion.        See 
    id. at 292.
    Here, the Fund's putative entitlement to attorneys' fees
    rests on two independent grounds: the CBA's language, see Haluch
    
    III, 695 F.3d at 6-7
    , and ERISA's fee-shifting provision, see 29
    U.S.C. § 1132(g)(2)(D).     Neither party has argued that the Fund's
    right to attorneys' fees under the CBA differs in any material
    respect from its corresponding right under ERISA. We therefore see
    no need to distinguish between these two sources of rights and, for
    ease in exposition, discuss the pending appeals in terms of ERISA.
    ERISA provides in pertinent part that a district court
    shall award "reasonable attorney's fees and costs" to an employee
    benefit plan when the plan succeeds in securing a judgment for a
    violation of 29 U.S.C. § 1145 (as the Fund did here).            29 U.S.C.
    § 1132(g)(2)(D).     This provision mirrors provisions found in a
    compendium of other laws in which Congress has granted courts the
    authority   to   award   reasonable    attorneys'   fees   and   costs   to
    prevailing parties.      See, e.g., 29 U.S.C. § 216(b); 33 U.S.C.
    § 1365(d); 42 U.S.C. §§ 1988(b), 7604(d).           When analyzing such
    agnate provisions, "we apply the vast body of jurisprudence which
    has sprung up in the crowded vineyard where Congress has planted a
    proliferous array of fee-shifting statutes."        Metro. Dist. 
    Comm'n, 847 F.2d at 15
    ; accord Indep. Fed'n of Flight Attendants v. Zipes,
    
    491 U.S. 754
    , 758 n.2 (1989).
    -5-
    The calculation of shifted attorneys' fees generally
    requires courts to follow the familiar lodestar approach.                        See
    Perdue v. Kenny A. ex rel. Winn, 
    559 U.S. 542
    , 551-52 (2010).                    One
    hallmark of this approach is flexibility. See Metro. Dist. 
    Comm'n, 847 F.2d at 15
    .
    In   fashioning    the   lodestar,      the   first   step    is      to
    calculate the number of hours reasonably expended by the attorneys
    for   the   prevailing      party,   excluding      those    hours    that       are
    "excessive, redundant, or otherwise unnecessary."                    Hensley v.
    Eckerhart, 
    461 U.S. 424
    , 434 (1983).           The second step entails a
    determination      of   a   reasonable     hourly     rate   or   rates      —     a
    determination that is often benchmarked to the prevailing rates in
    the community for lawyers of like qualifications, experience, and
    competence.      See 
    GOAL, 247 F.3d at 295
    .         The product of the hours
    reasonably worked times the reasonable hourly rate(s) comprises the
    lodestar.
    The lodestar may be further adjusted based on other
    considerations. See Coutin v. Young & Rubicam P.R., Inc., 
    124 F.3d 331
    , 337 (1st Cir. 1997).       Prominent among these considerations is
    the degree of a prevailing party's success.            See 
    Hensley, 461 U.S. at 440
    (explaining that "the extent of a plaintiff's success is a
    crucial factor" to be considered in tailoring the final award).
    In this case, the district court patiently pursued the
    path paved by previous precedents in fashioning an award of
    -6-
    attorneys' fees.       It identified reasonable rates for the legal and
    paralegal services provided.          See Haluch 
    II, 792 F. Supp. 2d at 140-41
    . It then examined the claimed hours and, based on a finding
    that some hours were excessive and/or unnecessary, reduced them by
    one-third across the board. See 
    id. at 141-42.
    These computations
    yielded a lodestar of $84,656.50.            See 
    id. at 142.
           So far, so
    good: the Fund mounts no challenge to these aspects of the district
    court's handiwork — at least no challenge that is sufficiently
    articulated to merit appellate attention.             See United States v.
    Zannino, 
    895 F.2d 1
    , 17 (1st Cir. 1990) (holding that "issues
    adverted to in a perfunctory manner . . . are deemed waived").
    Building on this foundation, the district court adjusted
    the lodestar value to $18,000.              Relatedly, it ordered expense
    reimbursement in the sum of $16,688.15.                   It based the steep
    reduction in the lodestar value largely on two considerations.
    First, the judge observed that the damages recovered
    amounted   to   only    $26,897.41    and    that,   of    this   amount,   only
    $10,267.11 represented delinquent employer contributions.                    See
    Haluch 
    II, 792 F. Supp. 2d at 142
    .          This sum, the court noted, was
    far less than the nearly $200,000 in damages that the Fund had
    aspired to recover.       See 
    id. Moreover, the
    Fund had not prevailed
    on the crucial claim that employer contributions were due for "John
    Doe" employees. See supra note 2 and accompanying text. Thus, the
    Fund's success was "limited in comparison to the scope of the
    -7-
    litigation as a whole."   Haluch 
    II, 792 F. Supp. 2d at 142
    (quoting
    
    Hensley, 461 U.S. at 436
    ).    Second, the court remarked that the
    initial lodestar calculation dwarfed the damage award ($26,897.41).
    
    Id. at 142-43.
    Against this historical backdrop, we start with the
    Fund's appeal.   That appeal challenges what the Fund envisions as
    the paltriness of the fees. In seeking a more munificent award, it
    argues that the district court was too focused on proportionality.
    Its argument relies on case law rejecting a strict rule requiring
    proportionality between damage awards and fee awards.    See, e.g.,
    Orth v. Wis. State Emps. Union, Council 24, 
    546 F.3d 868
    , 875 (7th
    Cir. 2008); UAW Local 259 Soc. Sec. Dep't v. Metro Auto Ctr., 
    501 F.3d 283
    , 292-95 (3d Cir. 2007); Bldg. Serv. Local 47 Cleaning
    Contractors Pension Plan v. Grandview Raceway, 
    46 F.3d 1392
    , 1401
    (6th Cir. 1995).    In light of this case law, the Fund says, the
    district court's emphasis on proportionality constitutes an abuse
    of discretion.
    The cases catalogued by the Fund cannot bear the weight
    that the Fund loads upon them.     These cases refuse to impose a
    requirement that trial judges make fee awards proportionate to the
    damages recovered. But this view is hardly controversial given the
    Supreme Court's conclusion that fee awards need not be proportional
    to damage awards.   See City of Riverside v. Rivera, 
    477 U.S. 561
    ,
    580-81 (1986) (plurality op.); see also Diaz v. Jiten Hotel Mgmt.,
    -8-
    Inc., 
    741 F.3d 170
    , ___ (1st Cir. 2013) [No. 13-1444, slip op. at
    15-19] (rejecting strict proportionality rule vis-à-vis state fee-
    shifting statute).
    In a lodestar case, refusing to require that fee awards
    be strictly proportionate to damages awards makes eminently good
    sense. We agree with Judge Posner that "[t]here are fixed costs of
    litigation," so a rigid proportionality rule would allow defendants
    to "inflict[] with impunity small losses on the people whom they
    wrong."   
    Orth, 546 F.3d at 875
    .
    None of the cases cited by the Fund holds (or even
    suggests) that a fee-setting court is forbidden, in appropriate
    circumstances, from considering proportionality as one factor among
    many in determining the amount of fees.          The law is to the
    contrary: the City of Riverside Court explained that "[t]he amount
    of damages a plaintiff recovers is certainly relevant to the amount
    of attorney's fees to be 
    awarded." 477 U.S. at 574
    .    Withal,
    proportionality is not to be given decretory significance but,
    rather, is simply one item in the constellation of factors to be
    assessed.   See 
    id. The law
    of this circuit is consistent with that
    admonition; it recognizes that a fee-setting court can take the
    amount of damages recovered into account.     See, e.g., 
    Coutin, 124 F.3d at 339-40
    ; Foley v. City of Lowell, 
    948 F.2d 10
    , 19-20 (1st
    Cir. 1991).
    -9-
    This is not to say that, when setting fees, a judge can
    scrap       the    lodestar        structure      in     favor     of     a   rigid    rule   of
    proportionality.                  That    would     be     an     abuse       of   discretion:
    proportionality cannot be used as the sole determinant of a
    lodestar-based fee award.3                    Joyce v. Town of Dennis, 
    720 F.3d 12
    ,
    31 (1st Cir. 2013).
    In    the   case       at    hand,     the    district       court   plainly
    understood             that   a    proportionality             standard       should   not    be
    mechanically applied.               See Haluch 
    II, 792 F. Supp. 2d at 143
    .                    It
    nonetheless concluded (reasonably, we think) that proportionality
    was a particularly relevant factor here. See 
    id. We conclude
    that
    this use of proportionality as a factor (but not the exclusive
    factor) in setting the amount of the fee award was within the
    court's discretion.               This conclusion is especially compelling in a
    case — like this one — that involves private parties and little
    articulated public interest in the judgment.4
    3
    Judicial hostility toward the rigid use of proportionality
    as the sole determinant of a lodestar-based fee award is especially
    strong in contexts (such as civil rights actions) in which the
    public interest vindicated by a damage award may far outstrip the
    amount of dollars involved. See City of 
    Riverside, 477 U.S. at 574-76
    ; Díaz-Rivera v. Rivera-Rodríguez, 
    377 F.3d 119
    , 125 (1st
    Cir. 2004); see also City of 
    Riverside, 477 U.S. at 586
    & n.3
    (Powell, J., concurring in the judgment) (drawing contrast between
    civil rights cases and private actions).
    4
    We do not mean to imply that the public lacks any interest
    in private companies complying with labor law requirements.
    Rather, we only intend to note what is obvious: that there is no
    particular public interest in the judgment that has been returned
    in this case.
    -10-
    This leaves the vitality of the fee award as a whole.
    That award reflects an unusually large adjustment to the lodestar.
    But in evaluating this adjustment, we must recall that the court
    factored into the fee-shifting calculus not only the relatively
    modest size of the damage award but also the huge disparity between
    the amount of damages sought (nearly $200,000) and the much smaller
    amount of damages actually recovered ($26,897.41). See 
    id. at 142.
    The court also considered that the Fund had been unsuccessful in
    pursuing a major part of its case — its claims related to the "John
    Doe" employees, see supra note 2 and accompanying text — and a fee-
    setting court has broad latitude to disallow attorneys' fees with
    respect to time spent on unsuccessful claims.   See, e.g., 
    Hensley, 461 U.S. at 434-35
    ; 
    Coutin, 124 F.3d at 339
    .
    The juxtaposition of these facts showed that the Fund's
    success was quite "limited in comparison to the scope of the
    litigation as a whole."   Haluch 
    II, 792 F. Supp. 2d at 142
    (quoting
    
    Hensley, 461 U.S. at 436
    ).    Taking into account the totality of
    these idiosyncratic circumstances, we cannot say that the modest
    lodestar value formulated by the district court constituted an
    abuse of discretion.
    We turn now to Haluch's cross-appeal, which derives from
    the travel of the Fund's lawyers from Syracuse, New York to
    Springfield, Massachusetts to attend court sessions.   The district
    judge thought that this travel was reasonably necessary and, in
    -11-
    addition    to   the   fee    award,   ordered   reimbursed       travel-related
    expenses that included mileage ($2,239.82), meals ($439.64), and
    kindred charges ($1,205.61).
    Haluch impugns the district court's treatment of attorney
    travel, arguing that attorney hours spent in transit were not
    properly identified and were not billed at a discounted rate.
    Accordingly, Haluch seeks a reduction of the fees as well as
    disallowance of travel-related expenses.
    It is settled beyond hope of contradiction that "an
    attorney's    travel    time    may    be   reimbursed   in   a   fee   award."
    Hutchinson ex rel. Julien v. Patrick, 
    636 F.3d 1
    , 15 (1st Cir.
    2011). Similarly, reasonable costs associated with attorney travel
    may be reimbursed.      See Bos. & Me. Corp. v. Moore, 
    776 F.2d 2
    , 11
    (1st Cir. 1985). And while travel time is frequently reimbursed at
    reduced hourly rates, "there is no hard-and-fast rule" requiring
    such a discount.       
    Hutchinson, 636 F.3d at 15
    .
    With respect to attorney travel, the district judge has
    wide (though not limitless) discretion.             Here, the judge made an
    across-the-board one-third reduction to billed hours to account for
    a multitude of factors, including a motley of "excessive or
    unnecessary charges."         Haluch 
    II, 792 F. Supp. 2d at 142
    .           After
    implementing this across-the-board cut, the judge settled upon the
    lodestar.     See 
    id. He then
    arrived at the final fee award by
    slashing the lodestar by more than seventy-five percent.
    -12-
    We readily acknowledge that the court below chose to
    paint with broad strokes, treating the Fund's fee application
    globally instead of going item-by-item.     But the parties have not
    challenged the judge's decision to eschew an item-by-item canvass;
    and the judge's two-part determination neither to single out
    attorney travel for special attention nor to tinker with claimed
    travel expenses goes hand in glove with his across-the-board
    approach.    Seen in this light, we do not think that the district
    court abused its wide discretion with respect to the treatment of
    travel time and expenses.
    We need go no further. For the reasons elucidated above,
    we leave the parties where we found them.    Consequently, we reject
    both of the pending appeals and affirm the district court's order
    awarding attorneys' fees and expenses.
    Affirmed.    All parties shall bear their own costs on appeal.
    -13-