Nigh v. Koons Buick Pontiac ( 2007 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
BRADLEY NIGH, 
Plaintiff-Appellee,
v.
KOONS BUICK PONTIAC GMC,
INCORPORATED,
Defendant-Appellant,  No. 05-2059
and
HOUSEHOLD AUTOMOTIVE FINANCE
CORPORATION,
Defendant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Gerald Bruce Lee, District Judge.
(CA-00-1634-1)
Argued: November 30, 2006
Decided: February 21, 2007
Before WILKINS, Chief Judge, and WILLIAMS and
GREGORY, Circuit Judges.
Affirmed in part; vacated and remanded in part by published opinion.
Judge Gregory wrote the opinion, in which Chief Judge Wilkins and
Judge Williams joined.
COUNSEL
ARGUED: Jack David Lapidus, MACLEAY, LYNCH, GREGG &
LYNCH, Washington, D.C., for Appellant. Alexander Hugo Blank-
2 NIGH v. KOONS BUICK PONTIAC GMC, INC.
ingship, III, BLANKINGSHIP & ASSOCIATES, P.C., Alexandria,
Virginia, for Appellee. ON BRIEF: Arthur M. Schwartzstein,
McLean, Virginia, for Appellant. Thomas B. Christiano, BLANK-
INGSHIP & ASSOCIATES, P.C., Alexandria, Virginia, for Appellee.
OPINION
GREGORY, Circuit Judge:
Koons Buick Pontiac GMC, Inc., appeals a district court order
commanding Koons to pay Bradley Nigh $85,083.60 in attorneys’
fees incurred in protracted litigation between the two parties. Nigh
was successful at trial and before us on appeal, but he lost a dispute
regarding a statutory damage cap when Koons appealed our ruling to
the Supreme Court. Koons contends that Nigh no longer deserves
costs or attorneys’ fees, or at least, does not deserve fees for the work
done in connection with the Supreme Court appeal and subsequent
proceedings.
Nigh filed suit against Koons in October 2000, alleging conversion,
breach of contract, fraud, and violations of the Federal Odometer Act,
Truth In Lending Act ("TILA"), and Virginia Consumer Protection
Act ("VCPA"). The district court dismissed most of Nigh’s claims on
motion for summary judgment, but a jury ultimately returned a ver-
dict for Nigh under the TILA and the VCPA. Koons appealed its lia-
bility and the amount of damages, costs, and attorneys’ fees awarded
to Nigh. Nigh cross-appealed, arguing that the district court errone-
ously dismissed two of his claims on summary judgment. We
affirmed the district court’s judgment in all respects, Nigh v. Koons
Buick Pontiac GMC, Inc., 319 F.3d 119, 129 (4th Cir. 2003), and
awarded Nigh an additional $11,840 in attorneys’ fees for work per-
formed on the appeal.
Koons appealed to the Supreme Court, which reviewed only the
amount of damages awarded under the TILA. The Court agreed with
Koons that the TILA capped Nigh’s damages, then $24,192, at
$1,000. Koons Buick Pontiac GMC, Inc. v. Nigh, 543 U.S. 50, 64
(2004). The Court remanded the case to us, and we to the district
NIGH v. KOONS BUICK PONTIAC GMC, INC. 3
court. Koons promptly petitioned us for rehearing, noting that we
failed to address the issue of attorneys’ fees in our remand order.
Over Nigh’s objection, we granted the petition, vacated all prior
awards of attorneys’ fees, and remanded for a new determination of
fees as well.
On remand, the district court reinstated the attorneys’ fees awarded
for work done up to and including the initial appeal to this Court.
Nigh v. Koons Buick Pontiac GMC, Inc., 384 F. Supp. 2d 915, 917
(E.D. Va. 2005). The court further awarded Nigh $33,644 for the
work done in connection with the Supreme Court appeal, $4,564.50
for work on remand to this Court, and $5,906 for work before the dis-
trict court in connection with the motion on which the court was then
ruling. Id. The court also reaffirmed its initial award to Nigh of
$3,590 in costs. Id. In total, Koons was ordered to pay Nigh
$85,083.60. Id. at 925.
I.
The TILA requires that a defendant pay costs and reasonable attor-
neys’ fees to any person who brings a "successful action" to enforce
liability under the TILA against that defendant. See 15 U.S.C.
§ 1640(a)(3) (2000).1 The language is imperative: costs and reason-
able fees must be awarded to a plaintiff who brings a successful
action. The only variable in the calculation is the amount of attorneys’
fees, the determination of which is left to the discretion of the district
court with the stipulation that the fees be reasonable. See de Jesus v.
Banco Popular de Puerto Rico, 918 F.2d 232, 233 (1st Cir. 1990); see
also Doe v. Chao, 435 F.3d 492, 503 (4th Cir. 2006) (discussing the
fee-shifting provision of the federal Privacy Act). In this case, Nigh
1
The statute says, in relevant part:
[A]ny creditor who fails to comply with any requirement
imposed under this part . . . with respect to any person is liable
to such person in an amount equal to . . . in the case of any suc-
cessful action to enforce the foregoing liability . . . the costs of
the action, together with a reasonable attorney’s fee as deter-
mined by the court.
15 U.S.C. § 1640(a)(3).
4 NIGH v. KOONS BUICK PONTIAC GMC, INC.
brought a successful action, so Koons must pay him costs and reason-
able attorneys’ fees.
As it is used in § 1640(a)(3), action encompasses each stage of
Nigh’s litigation, including the Supreme Court appeal and all the pro-
ceedings that followed. The TILA does not define action, but its con-
text makes its meaning plain: an action is a lawsuit. When dealing
with similar language in Title VII of the Civil Rights Act of 1964, we
acknowledged that, in its usual sense, action is synonymous with "a
suit brought in a court." Chris v. Tenet, 221 F.3d 648, 652 (4th Cir.
2000) (citing Black’s Law Dictionary 26 (deluxe 5th ed. 1979)). It has
been, apparently, since at least 1483. See Oxford English Dictionary
128 (2d ed. 1989) (defining action as ‘A legal process or suit’). An
action constitutes more than an individual appearance before one par-
ticular tribunal. In ordinary usage, an action—a civil action, at least—
begins with the filing of a complaint and ends when no party may any
longer obtain review of the final disposition of the case, encompass-
ing all steps necessary in between. We casually equate action with
suit quite often; we did so earlier in this very litigation. Describing the
initiation of the lawsuit, but also referring to the legal dispute before
us at the time, we said: "Nigh, claiming that Koons Buick defrauded
him, brought this action under the statutory authority of the TILA
. . . ." Nigh, 319 F.3d at 123. This common understanding of action
is consistent with § 1640(a)(3), and we need look no further for the
word’s import, see United States v. Ron Pair Enters., Inc., 489 U.S.
235, 240-41 (1989).
Defining action in this way means it is possible for a TILA plaintiff
to obtain attorneys’ fees for a stage of the litigation at which she does
not prevail. If a plaintiff does not prevail before the district court, but
later is determined to have successfully demonstrated a defendant’s
liability, her action is successful, and she may recover fees for work
done at the trial level. See, e.g., Gibson v. LTD, Inc., 434 F.3d 275,
286 (4th Cir. 2006) ("Because Gibson has been successful on three
TILA claims, not just the two found by the district court, we vacate
the district court’s award of attorneys fees and remand to permit the
court to reassess its award in view of these changed circumstances.").
Conversely, if an appellate court overturns a district court’s finding
of liability under the TILA, the plaintiff’s action is not successful, and
she is not entitled to fees for either stage of the litigation.
NIGH v. KOONS BUICK PONTIAC GMC, INC. 5
In this case, Nigh’s action was successful. True, many of the claims
he originally brought were dismissed, but a jury found Koons liable
to Nigh under the TILA, and its finding has not been upset by any
court since. Nigh recovered not a trifle, but the maximum amount per-
missible under the statute. Simply put, Nigh is the prevailing party.
See Buckhannon Bd. and Care Home, Inc. v. W. Va. Dep’t of Health
and Human Res., 532 U.S. 598, 603-04 (2001); Farrar v. Hobby, 506
U.S. 103, 112-13 (1992); Griggs v. E.I. DuPont de Nemours & Co.,
385 F.3d 440, 454 (4th Cir. 2004). The TILA does not award fees and
costs to prevailing parties, of course. At least, it does not do so explic-
itly. Rather, the act awards fees and costs to victims of TILA viola-
tions who bring successful actions against the violators. § 1640(a)(3).
But there is little reason to suppose that a successful action is any-
thing more or less than an action brought by a prevailing party. See
Dechert v. Cadle Co., 441 F.3d 474, 476 (7th Cir. 2006); see also
Ruckelshaus v. Sierra Club, 463 U.S. 680, 701 & n.12 (1983) (group-
ing statutes that award fees for "successful actions" together with stat-
utes that award fees to "prevailing" or "substantially prevailing"
parties). Just as a plaintiff can prevail when only one of his claims
succeeds, so his action can succeed when only one of its constituent
claims prevails. Nigh’s action, then, was successful. Even so, Nigh is
not necessarily entitled to have all his litigation expenses reimbursed.
He is owed only costs and reasonable attorneys’ fees.2
II.
Costs are simple enough. In August 2003, after we issued our first
opinion in this case, the district court awarded Nigh $3,590 in costs.
Following the Supreme Court proceedings, we granted Koons’s peti-
tion for rehearing regarding attorneys’ fees and costs, vacated the fee
awards, and remanded the case to the district court for a reassessment
2
The district court awarded Nigh fees under both the TILA and the
VCPA, which permits a court to award "reasonable attorneys’ fees and
court costs" to a person who suffers loss as a result of a violation of the
Virginia statute. Va. Code Ann. § 59.1-204 (2006). Because the award of
costs and reasonable fees is mandatory under the TILA (and because
Koons does not argue specifically that the district court abused its discre-
tion by choosing to award costs and fees under the VCPA), we need not
discuss the Virginia law further.
6 NIGH v. KOONS BUICK PONTIAC GMC, INC.
of fees. We did not vacate the award of costs. At Koons’s behest, the
district court reconsidered the award anyway, but decided to reaffirm
it. Nigh, 384 F. Supp. 2d at 917. Koons now asks us to vacate (or at
least substantially reduce) the award, which we will not do. Koons
supplies no reason for us to believe the district court flubbed its calcu-
lation of costs in the first instance, and nothing about the succeeding
litigation has changed the nature of the trial or initial appeal such that
Nigh should no longer be entitled to litigation costs for those proceed-
ings. He brought a successful TILA action and therefore is entitled to
costs. See § 1640(a)(3). The district court’s award of $3,590 in costs
is affirmed.
III.
The question of reasonable fees is more complicated. As a prelimi-
nary matter, we affirm the reinstatement of $11,840 for attorneys’
fees amassed during the initial Fourth Circuit appeal. Despite Koons’s
Supreme Court success in the damage-cap dispute, the Fourth Circuit
fee award remains reasonable. We awarded Nigh only about eighty-
one percent of the fees he sought for the Fourth Circuit work because
his cross-appeal was unsuccessful. Nigh devoted a scant four pages
of his appellate briefs in that proceeding to argument about the TILA
damage cap. Of course, that argument turned out to be unsuccessful
as well. See Koons, 543 U.S. at 64. An additional reduction in fees
to reflect Koons’s ultimate vindication on the damage-cap question
may well have been appropriate, but we cannot say the district court
abused its discretion by declining to order one.
IV.
We would like to uphold the district court’s fee award respecting
the initial trial proceedings as well, but we are compelled to remand
for a recalculation. The district court order under review says that
Nigh is awarded $29,129.10, "the amount previously awarded to
Plaintiff by this Court," Nigh, 384 F. Supp. 2d at 917, but the court
previously awarded Nigh only $26,129.10. The earlier order, issued
in 2001, purported to reduce Nigh’s requested fees of $43,548.50 by
forty percent, "and thus award[ ] him $29,129.10 in attorneys’ fees
and costs." Nigh v. Koons, Buick, Pontiac, GMC, Inc., No. 00-1634-
A, Mem. Order at 18 (E.D. Va. Aug. 10, 2001). A forty-percent
NIGH v. KOONS BUICK PONTIAC GMC, INC. 7
reduction of $43,548.50, however, yields only $26,129.10—the
amount the court directed Koons to pay just two lines later, on the
final page of the order.3 On remand the court likely committed a sim-
ple error in transcription, copying the $29,129.10 figure from its ear-
lier order when it intended to reinstate the $26,129.10 award instead.
We would have no trouble approving either the $26,129.10 or the
$29,129.10 award—both seem reasonable under the circumstances,
and we upheld $26,129.10 once already—but we cannot ratify an
award explained primarily by inadvertence. For this reason, we
remand this portion of the case and ask the district court to recalculate
the attorneys’ fees owed Nigh for the work done up to the initial
Fourth Circuit appeal.
V.
The most hotly-contested fees in this case are those awarded for
work done in connection with the Supreme Court proceedings and the
subsequent proceedings on remand. In Koons’s estimation, it is
patently unreasonable to award Nigh fees for losing an argument
before the Supreme Court and unsuccessfully opposing Koons’s peti-
tion for rehearing on the issue of fees. (Koons does not specifically
address the fees awarded for Nigh’s successful briefing of the district
court on remand, but because it has asked us to vacate all fee awards,
we know it objects to these as well.) Judged against the familiar pre-
sumption in American law that a litigant pays his own litigation
expenses, see Goldstein v. Moatz, 445 F.3d 747, 751 (4th Cir. 2006),
Koons’s position has a certain plausibility. Why should Nigh be com-
pensated for the effort it took to propound a losing argument?
3
In its entirety, the final portion of the August 10, 2001, order reads
as follows:
[T]he Court reduces Nigh’s requested amount of $43,548.50 by
forty percent, and thus awards him $29,129.10 in attorneys’ fees
and costs. Accordingly it is hereby
ORDERED that Plaintiff’s Motion for Attorneys’ Fee is
GRANTED; and
ORDERED that Defendant Koons is ordered to pay Plaintiff
Nigh $26,129.10 for attorneys’ fees and court costs.
Nigh, No. 00-1634-A, Mem. Order at 18-19 (E.D. Va. Aug. 10, 2001).
8 NIGH v. KOONS BUICK PONTIAC GMC, INC.
A fee-shifting provision like § 1640(a)(3) subsidizes the lawsuits of
meritorious plaintiffs. Such subsidies appear frequently in civil rights
and consumer protection laws, presumably because Congress is (or
was) particularly interested in seeing those laws prosecuted. See, e.g.,
42 U.S.C. § 1988(b) (2000). The members of Congress who approved
the TILA may have assumed either that the victims of TILA viola-
tions could not afford to bring TILA claims or that they would choose
not to after considering the low returns those claims yield relative to
the high costs of litigation. Even if lawyers take TILA cases on con-
tingency, as Nigh’s lawyers did, such assumptions remain reasonable
under the law as it is now written. Cf. City of Riverside v. Rivera, 477
U.S. 561, 577 (1986) (discussing the limitations of contingent fee
arrangements in civil rights cases). TILA awards will rarely be
enough to cover the costs of representation; in most cases, they
scarcely will cover the costs of filing a claim. See § 1640(a)(2)(A).
Only with fee shifting does the prosecution of a typical individual
TILA claim become an economically sensible possibility.
Defending against a TILA claim is another matter. Defendants in
TILA suits are more likely to be repeat violators than plaintiffs are to
be repeat victims.4 For a defendant like Koons, the risk of losing more
in costs and fees than is gained in refunded damages in one particular
appeal may well be a risk worth taking: what is lost in fees in that
case may be saved in damages in a later one. If Koons ever finds itself
in TILA litigation of this sort again, it can now rest assured that its
damages will be capped at $1,000. For a repeat player, this security
has great value, likely much more than the additional fees Koons has
been ordered to pay in this litigation as a result of its choice to appeal
to the Supreme Court.
If it seems harsh that litigants in Koons’s position might be forced
4
Consider a case like Nigh’s as an example. We can reasonably expect
a car dealership to be involved in far more car sales than any individual
customer is likely to be. If the dealership cheats in thirty percent of its
car sales, and the customer is cheated in thirty percent of her car pur-
chases, the dealership will be involved in more illegal transactions than
will be the customer. Assuming the dealership sells to customers of aver-
age propensity to litigate, it is much more likely than they to be involved
in a TILA suit.
NIGH v. KOONS BUICK PONTIAC GMC, INC. 9
to choose between paying additional fees and forsaking an appeal, the
complaint is more properly lodged with Congress than with the
courts. Section 1640(a)(3) does not differentiate between appeals
taken to contest liability and appeals taken to contest damage awards
(or other matters that do not affect the underlying liability). The stat-
ute’s text remained unchanged throughout the course of this litigation.
Koons knew or should have known that by appealing only the ques-
tion of damages to the Supreme Court it risked losing more in fees
and costs than it stood to gain in refunded damages. When Koons
chose to appeal our initial ruling, it accepted responsibility for the rea-
sonable attorneys’ fees Nigh would incur defending his judgment
before the Supreme Court and in subsequent proceedings.
We have upheld fee awards in similar circumstances before. In
Plyler v. Evatt, 902 F.2d 273 (4th Cir. 1990), for example, a group
of South Carolina inmates brought a class action under 42 U.S.C.
§ 1983 against the South Carolina Department of Corrections and
eventually reached a settlement, prompting a consent decree. Id. at
276. The Department of Corrections moved to modify the consent
decree, hoping to loosen some of the restrictions imposed upon it by
the order, but the district court denied the motion. Id. We reversed the
district court and granted the motion. Id. On remand the district court
awarded attorneys’ fees to the inmates for their unsuccessful defense
of the consent decree, and, on a second appeal, we upheld that award.
Id. at 277, 281. In Perry v. Bartlett, 231 F.3d 155 (4th Cir. 2000), we
followed Plyler and approved an award of attorneys’ fees for an
unsuccessful interlocutory appeal taken by the plaintiffs (who ulti-
mately prevailed in the lawsuit) even though the appeal sought a pre-
liminary injunction and did not deal directly with the defendants’
liability. The Plyler and Perry precedents belie Koons’s contention
that, because Koons prevailed in front of the Supreme Court, there is
no basis for Nigh’s recovery of any fees incurred after the initial
Fourth Circuit appeal.
Once we allow that awarding fees is not intrinsically unreasonable,
we must consider whether the district court abused its discretion by
granting Nigh the amount of fees that it did. Koons offers no reason
to believe that the district court erred in its calculation of a reasonable
fee using the usual lodestar method. The district court meticulously
considered each of the twelve factors listed in Barber v. Kimbrall,
10 NIGH v. KOONS BUICK PONTIAC GMC, INC.
577 F.2d 216 (4th Cir. 1978), and concluded that a full award of attor-
neys’ fees was reasonable. Although not all the Barber factors seem
particularly well-suited to the facts of this case, the district court did
not abuse its discretion by calculating the reasonable fees using the
factors for guidance. See Bergstrom v. Dalkon Shield Claimants Trust
(In re A.H. Robins Co., Inc.), 86 F.3d 364, 376 (4th Cir. 1996) (citing
EEOC v. Service News Co., 898 F.2d 958, 956 (4th Cir. 1990)). The
district court’s award of attorneys’ fees for work done in connection
with the Supreme Court argument and subsequent proceedings is
affirmed.
VI.
One final matter merits our attention. Koons devotes a considerable
portion of its brief to discussion of Nigh’s degree of success. Koons
argues that Nigh enjoyed very little success (obtaining only $1,000 in
damages for his TILA claim) and should have his fee award for the
trial and initial appeal reduced by at least eighty-five percent, if not
erased completely. Koons’s formula measures success purely in terms
of dollars awarded: if $24,192.80 in damages merited a certain attor-
neys’ fee award, $1,000 merits substantially less.
Koons has the right idea, to a certain extent. We do consider the
extent of the relief obtained by the plaintiff to be particularly impor-
tant when calculating reasonable fees, see Mercer v. Duke Univ., 401
F.3d 199, 204 (4th Cir. 2005), and Barber requires district courts to
weigh the amount in controversy and the results obtained before
deciding upon a reasonable fee, 577 F.2d at 226 n.28. Looking to the
extent of relief permits courts quickly to assess the merits of a plain-
tiff’s claims. See Farrar, 506 U.S. at 115. The Barber requirement
rests on the idea that a prevailing plaintiff is less worthy of a fee
award when one or more of his claims lack merit—that is, when he
cannot demonstrate that he deserves the compensation he demanded
in his complaint. Still, we do not reflexively reduce fee awards when-
ever damages fail to meet a plaintiff’s expectations in proportion to
the damages’ shortfall. See Rivera, 477 U.S. at 574; Hensley v. Ecker-
hart, 461 U.S. 424, 433-35 (1983); Cooper v. Dyke, 814 F.2d 941,
950-51 (4th Cir. 1987). The first time we heard this case, for example,
we approved the district court’s fee award, which represented sixty
percent of the fee Nigh requested, even though his recovery did not
NIGH v. KOONS BUICK PONTIAC GMC, INC. 11
necessarily represent sixty percent of the damages he sought. Nigh,
319 F.3d at 129.
As recompense for Koons’s TILA violation, Nigh sought actual
damages (to be proven at trial), statutory damages due under 15
U.S.C. § 1640, interest, costs, and attorneys’ fees. His complaint did
not specify a dollar amount sought. At trial Nigh proved to the jury’s
satisfaction that the statutory damages equaled $24,192.80—twice the
finance charges Koons assessed against him. Koons, 543 U.S. at 58.
Only after the Supreme Court decision did he learn that his statutory
damages must be limited to $1,000. Nigh asked for the maximum to
which he potentially was entitled under the TILA. Even after the
Supreme Court’s reduction of Nigh’s monetary recovery, he receives
that maximum. Koons’s contention that this recovery is somehow de
minimis betrays a profound misunderstanding of either the expression
or the facts of this case. Nigh received the maximum recovery permis-
sible under the TILA. The district court acknowledged that Nigh’s
damages were substantially less than they had been, but nevertheless
deemed his TILA action successful enough to reinstate his old fee
awards. Nigh, 384 F. Supp. 2d at 920. It did not abuse its discretion
by doing so.
VII.
In sum, we affirm all the district court’s cost and damage awards
except the award for attorneys’ fees incurred prior to the initial Fourth
Circuit appeal. Nigh’s TILA action was successful, so Koons must
pay him costs and reasonable fees. Those fees properly may include
reimbursement for work performed at all stages of the litigation. We
remand only so that the district court may revisit its calculation of the
trial fees.
AFFIRMED IN PART;
VACATED AND REMANDED IN PART