Edward Monroe v. FTS USA, LLC ( 2021 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 21a0252p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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EDWARD MONROE, FABIAN MOORE, and TIMOTHY
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WILLIAMS, on behalf of themselves and all other
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similarly situated employees,
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Plaintiffs-Appellees/Cross-Appellants, > Nos. 20-6289/6347
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│
v. │
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FTS USA, LLC and UNITEK USA, LLC, │
Defendants-Appellants/Cross-Appellees. │
│
┘
Appeal from the United States District Court for the Western District of Tennessee at Memphis.
No. 2:08-cv-02100—John Thomas Fowlkes, Jr., District Judge.
Decided and Filed: November 8, 2021
Before: SUTTON, Chief Judge; BOGGS and STRANCH, Circuit Judges.
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COUNSEL
ON BRIEF: Colin D. Dougherty, Daniel W. Yager, FOX ROTHSCHILD LLP, Blue Bell,
Pennsylvania, for Appellants/Cross-Appellees. Adam W. Hansen, APOLLO LAW LLC,
Minneapolis, Minnesota, Rachhana T. Srey, NICHOLS KASTER, PLLP, Minneapolis,
Minnesota, for Appellees/Cross-Appellants.
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OPINION
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JANE B. STRANCH, Circuit Judge. This Fair Labor Standards Act (FLSA) case has
been litigated for over thirteen years. We have twice affirmed the district court’s certification of
a collective action and the determination by the jury and court that FTS and UniTek are liable
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under the FLSA. We reversed only as to two errors in calculating damages for Plaintiffs’ piece-
rate compensation and remanded for the sole purpose of recalculating damages without those
errors. On remand, FTS and UniTek sought to raise a host of new attacks on the district court’s
judgment that were unrelated to our limited instruction to recalculate the hourly rate and correct
the multiplier used to calculate damages. Recognizing that our remand was limited, the district
court barred FTS and UniTek from raising most of those arguments. The court then recalculated
damages and entered judgment for all but one opt-in Plaintiff, Valon Harlan, finding a lack of
sufficient evidence to calculate damages. Following entry of judgment, the district court also
substantially granted Plaintiffs’ counsel’s petition for attorney’s fees.
On appeal, FTS and UniTek assert that the district court erred in foreclosing its
arguments, contending that our remand was general in nature and thus allowed the district court
to consider the merits of their list of new claims. FTS and UniTek also argue that the district
court abused its discretion in substantially granting attorney’s fees to Plaintiffs. We AFFIRM
the district court’s judgment in all respects except as to its denial of judgment to Plaintiff Harlan,
which we REVERSE and REMAND to the district court with instructions to enter judgment in
favor of Plaintiff Harlan.
I. BACKGROUND
Because our prior opinions fully set forth the underlying facts, we here summarize only
the pertinent parts of the lengthy procedural history of this case. In 2008, FTS technicians filed
suit alleging that they were unlawfully deprived of overtime compensation for hours worked
over the course of the prior three years. The district court authorized a collective action, and a
total of 293 technicians ultimately opted into the collective action. In 2011, the case was tried to
a jury that returned verdicts of liability against FTS and UniTek, finding that FTS Technicians
worked in excess of 40 hours weekly without being paid overtime compensation and that FTS
willfully violated the FLSA. The jury determined the average number of unrecorded hours
worked per week by each testifying technician. Based on the jury’s findings, the district court
calculated damages for all technicians in the collective action and entered a judgment in 2012
based on calculation of the damages owed to each individual Plaintiff. In entering judgment for
Plaintiffs, the district court applied a 1.5 multiplier for calculating uncompensated overtime.
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In 2014, FTS appealed the district court’s judgment on the following grounds: (1) The
district court erred in certifying the collective action because the employees were not similarly
situated; (2) the court improperly allowed plaintiffs to prove liability as to all technicians based
on testimony of an “unrepresentative few”; (3) the “trial-by-proxy procedure deprived FTS of its
constitutional right to litigate individual defenses”; (4) the verdict form was flawed because the
form did not require a finding about each technician for each week; (5) the court “impermissibly
usurped” the jury’s role in determining damages; (6) the district court’s damages calculation was
incorrect and based on unrepresentative testimony; and finally (7) the Seventh Amendment
“requires” that any retrial on damages also include a new trial on liability. See generally Monroe
v. FTS USA, LLC, 815 F.3d 1000 (6th Cir. 2016) (Monroe I). We upheld the district court’s
certification of the case as a collective action and its determination that sufficient evidence
supports the jury’s verdicts in favor of the class, affirming the court’s judgment in all respects
except as to the multiplier used to calculate the damages and the calculation of the technicians’
hourly rate under the piece-rate compensation system. Id. at 1005, 1024. On the first issue, we
found that the district court erred in applying a 1.5 multiplier, and instead should have used a
0.5 multiplier. Id. On the second, we found that the district court erred in failing to calculate the
hourly rates to reflect the actual hours Plaintiffs worked. Id. Accordingly, we remanded the
matter for the limited purpose of recalculating damages with the correct hourly rate and
multiplier. Id.FTS petitioned for a writ of certiorari. In light of its decision in Tyson Foods, Inc. v.
Bouaphakeo, 577 U.S. 442 (2016), decided after our opinion issued, the Supreme Court vacated
our judgment, and remanded for further consideration. See FTS USA, LLC v. Monroe, 137 S. Ct.
590 (2016). On remand, we concluded that Tyson supports our original decision and reaffirmed
our prior holdings. See Monroe v. FTS USA, LLC, 860 F.3d 389, 393, 415–16 (6th Cir. 2017)
(Monroe II). We again affirmed the certification of the collective action and the sufficiency of
evidence supporting the jury’s verdicts, and reversed only as to the hourly rate calculation and
the use of a 1.5 multiplier, remanding the case for the purpose of correcting the arithmetic.1 Id.1
Because Monroe II represents our most recent mandate to the district court, our analysis in this opinion
focuses exclusively on the mandate we issued in Monroe II.
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FTS petitioned this court for rehearing en banc, which was denied. FTS again sought certiorari
review, which was also denied. FTS USA, LLC v. Monroe, 138 S. Ct. 980 (2018).
The case then returned to the district court for the specified recalculation of the judgment.
On remand, FTS sought to raise a number of issues for the first time. FTS and UniTek
contended that our remand allowed them to raise the following claims: that at least 42 Plaintiffs
were barred from recovery under the doctrine of judicial estoppel because they failed to disclose
their FLSA claims in bankruptcy proceedings; that the district court erred in entering a single,
aggregate judgment, as opposed to individualized and separate, Plaintiff-by-Plaintiff judgments;
and that there was insufficient evidence to support a verdict as to several opt-in Plaintiffs,
including Plaintiff Harlan. Recognizing that we issued a limited remand, the district court
rejected each of FTS and UniTek’s arguments, except for their argument as to Harlan. The
district court concluded that it should not enter judgment for Harlan because “the data used to
calculate damages . . . is not the product of a just and reasonable inference supported by
sufficient evidence.” The district court entered judgment, incorporating a spreadsheet that once
again contained a Plaintiff-by-Plaintiff calculation as to the damages owed to each individual
Plaintiff.
At the conclusion of the case, Plaintiffs’ counsel petitioned the district court for
attorney’s fees and costs related to all the litigation, including fees related to the pretrial litigation
that occurred prior to November 1, 2012 (which the district court had previously granted, and we
did not disturb), fees for the appellate litigation (all of which occurred post-November 1, 2012),
and a fee enhancement. The district court ultimately granted Plaintiffs’ petition for pre-
November 1, 2012, litigation fees and post-November 1, 2012, litigation fees, but denied the fee
enhancement.
II. ANALYSIS
In this appeal, FTS and UniTek raise a number of challenges to the district court’s
judgment along with separate challenges regarding the attorney’s fees awarded by the court.
Plaintiffs, on the other hand, cross-appeal to raise one challenge to the district court’s denial of
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judgment as to Plaintiff Harlan. We address the judgment-related arguments and the attorney’s
fees-related arguments in turn.
A. Judgment-Related Arguments
FTS and UniTek principally challenge the district court’s conclusion that our remand in
Monroe II was limited. They argue that we issued a general remand in Monroe II, and therefore,
the district court erred in refusing to bar various opt-in Plaintiffs from recovering any damages
based on the doctrine of judicial estoppel and in failing to enter Plaintiff-by-Plaintiff judgments.
In response, Plaintiffs assert that our remand in Monroe II was limited, and the district court
could not consider FTS and UniTek’s new claims. For the same reason, Plaintiffs contend that
the district court erred in denying judgment to Plaintiff Harlan.
We review de novo the interpretation of our mandate. United States v. Parks, 700 F.3d
775, 777 (6th Cir. 2012). Addressing whether a district court complied with our mandate, we
review the entirety of the previously entered opinion to determine whether the remand was
limited. See Carter v. Mitchell, 829 F.3d 455, 463 (6th Cir. 2016).
The mandate rule binds a district court to the scope of the remand issued by the court of
appeals. See United States v. Campbell, 168 F.3d 263, 265 (6th Cir. 1999). Put differently, “the
mandate rule instructs that the district court is without authority to expand its inquiry beyond the
matters forming the basis of the appellate court’s remand.” Id. An appellate court’s remand can
either be general or limited in scope, and that distinction governs the district court’s authority on
remand. Id.On general remand, a district court is free to address all matters as long as it remains
consistent with the appellate court’s opinion. See United States v. Moore, 131 F.3d 595, 597 (6th
Cir. 1997) (Moore II). An appellate court’s general remand lacks explicit limitation; therefore, it
does not limit the district court’s review and allows de novo review of the matter. Id. at 597–98.
By way of an example, we determined that a remand order “where an appellate court simply
vacates a sentence and remands to the district court for ‘resentencing’” is considered a general
remand allowing “the district court to resentence the defendant de novo.” Id. at 598 (citing
United States v. Young, 66 F.3d 830, 836 (7th Cir. 1995); United States v. Caterino, 29 F.3d
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1390, 1394–95 (9th Cir. 1994); United States v. Cornelius, 968 F.2d 703, 705–06 (8th Cir.
1992)).
By contrast, a limited remand “constrains” the district court’s authority to the issue or
issues specifically articulated in the appellate court’s order. Moore II, 131 F.3d at 598.
Critically, in issuing a limited remand, an appellate court “must sufficiently outline the procedure
the district court is to follow. The chain of intended events should be articulated with
particularity.” Campbell, 168 F.3d at 268. In United States v. Moore, 76 F.3d 111, 114 (6th Cir.
1996) (Moore I), we remanded the case to the district court for further proceedings to determine
whether the defendant “used or carried a firearm during and in relation to his drug trafficking
offense.” We concluded in Moore II that those instructions were sufficiently limiting such that
they required adherence to that one issue, and the district court violated the mandate rule by
exceeding the scope of the limited remand order. 131 F.3d at 599.
Our opinion in Monroe II specified a limited instruction to do just one thing: recalculate
the damages using the 0.5 multiplier and the correct hourly rates based on piece-rate
compensation. Indeed, our opinion clearly begins with the following: “We REVERSE the
district court’s calculation of damages and REMAND the case for recalculation of damages
consistent with this opinion.” See Monroe II, 860 F.3d at 393 (emphasis added). We reiterated
that instruction at several points in the opinion. As to the hourly rate, we instructed the district
court to recalculate the hourly rates “with the correct number of hours to ensure that FTS
Technicians receive the pay they would have received had there been no violation.” Id. As to
the multiplier, after explaining why the district court erred in using the 1.5 multiplier, we
specifically stated that we “reverse the district court’s use of a 1.5 multiplier.” Id. at 415. We
concluded our analysis by ordering a remand “to the district court to recalculate damages
consistent with this opinion.” Id. And in remanding to the district court to recalculate damages,
we explicitly noted that our mandate “does not necessitate a new trial on liability” and that we
have the authority to “limit the issues upon remand.” Id. In light of the foregoing, our
instructions simply left no room for the district court “to expand its inquiry” to the other matters
that FTS and UniTek sought to raise on remand, including judicial estoppel, the entry of
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individual judgments, or the reevaluation of the sufficiency of evidence as to several Plaintiffs.
See Campbell, 168 F.3d at 265. Our mandate in Monroe II was therefore a limited remand.
FTS and UniTek’s reliance on United States v. McFalls, 675 F.3d 599 (6th Cir. 2012), to
suggest that our remand was general, not limited, is misplaced. Citing Moore II, 131 F.3d at
599, we reasoned that for a remand to be limited, the opinion must include language denoting a
specific limitation. McFalls, 675 F.3d at 605. Our opinion in McFalls explained that the critical
language in Moore I was: “We adhere to our previous opinion in all other respects.” Id.(quoting Moore I, 76 F.3d at 114). That statement alone was a specific limitation that
constrained the scope of the district court’s review and thus was key to our determination that the
remand was limited. Id. It therefore followed that in McFalls, where we had not included such
limiting language in our original order, our remand was general in nature, not limited. Id. at
605–06. By contrast, we included such limiting language here, along with specific instructions
to recalculate damages with the correct hours and multiplier. Critically, like our mandate in
Moore I, our mandate in Monroe II not only reversed the district court’s calculation of damages,
but after extensive analysis, also affirmed the district court’s judgment in all other respects—i.e.,
as to collective action certification, liability, and the use of an estimated-average approach.
Monroe II, 860 F.3d at 407–11 (affirming district court on liability-related arguments). Our
decision in Monroe II left open only one issue on remand—the recalculation of damages with the
correct hours and multiplier—and nothing more. McFalls therefore does not contravene our
conclusion that our remand was in fact limited.
FTS and UniTek further contend that even if the remand was limited, judicial estoppel
falls within the scope of that limited remand. Our opinion in JPMorgan Chase Bank, N.A. v.
Winget, 678 F. App’x 355 (6th Cir. 2017), addresses this point. There, we grappled with the
interplay between the mandate rule and the doctrine of judicial estoppel. Following our limited
remand to do just one thing—enter judgment in plaintiff’s favor on a single count—defendants
raised the same argument as FTS and UniTek, that the plaintiff was judicially estopped from
pursuing its monetary claim due to a representation to the bankruptcy court. Id. at 359–60. The
district court in Winget denied the defendants’ motion for estoppel, recognizing that our opinion
had limited the remand to the discrete issue specified—entering judgment for the plaintiff on a
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single count—and consideration of the affirmative defense of judicial estoppel fell beyond the
scope of that remand. Id. On appeal, we affirmed the district court’s ruling, reasoning that our
limited remand did not contemplate the possibility of the judicial estoppel defense, much less
that the district court would conduct any further proceedings or entertain any additional
arguments. Id. at 360–61. The same applies here.
As in Winget, our remand in Monroe II was limited by specific instructions. We
remanded to the district court to recalculate the existing judgment, not relitigate liability or
consider further arguments. Our limited remand did not contemplate the judicial estoppel issue,
nor did it give the district court the opportunity to entertain that issue. And for these same
reasons, the aggregate judgment and sufficiency of the evidence issues also fall outside the scope
of the limited remand.2 Thus, the reasoning in Winget supports the conclusion that our limited
remand bars FTS and UniTek from raising their new claims.
In sum, because we find that the district court was constrained on remand to the specific
issues enumerated in Monroe II, we conclude that the mandate rule barred FTS and UniTek from
raising arguments on judicial estoppel, aggregate judgment, and sufficiency of the evidence—all
of which were outside the scope of our limiting instructions—on remand. The district court was
correct in rejecting consideration of judicial estoppel. And it correctly declined to revise its
earlier decision to enter an aggregate judgment. Based on our instructions for a limited remand,
however, the district court erred in reassessing the sufficiency of the evidence as to Harlan.
B. Attorney’s Fees
FTS and UniTek also challenge the district court’s decision to award appellate attorney’s
fees from the previous appeal. First, they contend that Plaintiffs “waived” the opportunity to do
so because they did not petition this court for the appellate attorney’s fees in the first instance.
And second, in the alternative, they contend that the district court abused its discretion in
2
With respect to the sufficiency of evidence as to Harlan, the district court distinguished Harlan’s case from
the other Plaintiffs on the grounds that it was not supported by actual time records, only by testimony and data of
other workers. Review of the sufficiency of evidence as to Harlan, however, falls outside the scope of our remand.
Monroe II explicitly affirmed both the sufficiency of the evidence, 860 F.3d at 407–11, and the use of the estimated
averages approach, particularly where the insufficiency is due to the employer’s failure to keep adequate records, id.
at 412–13.
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substantially awarding attorney’s fees because Plaintiffs were not the prevailing party at the
appellate stage of the litigation.
We review a district judge’s decision to grant or deny attorney’s fees under the abuse of
discretion standard. See Int’l Outdoor, Inc. v. City of Troy, 974 F.3d 690, 708 (6th Cir. 2020).
Our binding precedent squarely addresses FTS and UniTek’s waiver argument on
appellate attorney’s fees. In Smith v. Detroit Bd. of Educ., we held that in making awards for
appellate services, “the district court is the forum to which the application for attorney fees ought
to be addressed.” 728 F.2d 359, 359 (6th Cir. 1984). We explained that “it is the preferred
practice for attorney fee matters to be addressed by the district court in light of its fact-finding
capability.” Id. at 360 (citing Greer v. Holt, 718 F.2d 206 (6th Cir. 1983)). Here, Plaintiffs
properly filed their petition for attorney’s fees in the district court and that court was correct in
concluding that Plaintiffs did not waive their ability to request appellate attorney’s fees.
FTS and UniTek contend that we implicitly overruled that approach in Keene v. Zelman,
337 F. App’x 553, 558 (6th Cir. 2009), and Fegley v. Higgins, 19 F.3d 1126, 1135 (6th Cir.
1994). But Keene is non-precedential and neither opinion directly addresses the proper forum
for a petition for attorney’s fees in the first instance. Rather, they both dealt with substantive
issues of whether a party was actually entitled to attorney’s fees, so we remanded the cases to the
district court to determine whether a party was entitled to appellate attorney’s fees. See Fegley,
19 F.3d at 1134–36; Keene, 337 F. App’x at 558. In any case, Smith is directly on point, has not
been overruled, and its determination that the district court is the preferred forum for attorney’s
fees is binding precedent.
FTS and UniTek also contend that the district court abused its discretion by awarding
fees attributed to the appeal or by not substantially reducing them because Plaintiffs were not a
prevailing party on appeal. In FLSA actions, 29 U.S.C. § 216(b) specifies that “[t]he court in
such action[s] shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a
reasonable attorney’s fee to be paid by the defendant, and costs of the action.” A trial court “in
its discretion, may allow the prevailing party, other than the United States, a reasonable
attorney’s fee as part of the costs.” United Slate, Tile, & Composition Roofers, Damp
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& Waterproof Workers Ass’n, Local 307 v. G&M Roofing & Sheet Metal Co., 732 F.2d 495, 502
(6th Cir. 1984) (applying Hensley v. Eckerhart formulation to attorney’s fees under § 216 of the
FLSA). The FLSA provides for attorney fees “to insure [sic] effective access to the judicial
process” for plaintiffs with valid wage and hour grievances and to “encourage the vindication of
congressionally identified policies and rights.” Id. at 502–03.
A “prevailing party” is a party who succeeds “on any significant issue in litigation which
achieves some of the benefit the parties sought in bringing suit.” Hensley v. Eckerhart, 461 U.S.
424, 433 (1983) (emphasis added). Nonetheless,
failing to obtain every dollar sought on behalf of his [or her] clients does not
automatically mean a lawyer’s fees should be reduced. . . . [T]he jury concluded
that [plaintiffs] had not proved all of the damages they claimed. This does not
necessarily mean that the lawyers are entitled to less fees; it merely means that the
lawyers aimed higher than they hit, which . . . is a sound tactic.
Bankston v. Illinois, 60 F.3d 1249, 1256 (7th Cir. 1995); see also Garcia v. Tyson Foods, Inc.,
770 F.3d 1300, 1311 (10th Cir. 2014) (upholding substantial fee award even though the jury
awarded only 8% of the damages sought by plaintiffs in FLSA suit). And as Fegley reminds,
“we have ‘upheld substantial awards of attorney’s fees even though a plaintiff recovered only
nominal damages.’” 19 F.3d at 1135 (quoting Posner v. The Showroom, Inc., 762 F.2d 1010,
1985 WL 13108 at *2 (6th Cir. 1985) (unpublished table decision)).
Plaintiffs were the “prevailing party” in the litigation and on appeal. Plaintiffs prevailed
completely as to liability—i.e., in demonstrating that FTS and UniTek violated the FLSA—and
we affirmed that conclusion twice on appeal. That Plaintiffs failed to obtain “every dollar
sought” on appeal does not nullify their overwhelming success on appeal, their status as a
prevailing party, or their entitlement to attorney’s fees. See Bankston, 60 F.3d at 1256.
Moreover, it does not automatically reduce the fees to which Plaintiffs’ attorneys are entitled, a
determination which is left to the district court to make. See Hensley, 461 U.S. at 433. As the
district court correctly pointed out, “[t]he complexity of this FLSA case, the length of the appeals
process, and Plaintiffs’ success in protecting the jury’s verdict while prevailing in every issue
aside from the judgment calculation, leads the [c]ourt to conclude that appellate fees are
warranted.”
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Because the district court correctly concluded that Plaintiffs were a prevailing party on
appeal, “[i]t remains for the district court to determine what fee is ‘reasonable.’” Hensley,
461 U.S. at 433. “In determining fee awards, courts should not ‘become green-eyeshade
accountants,’ but instead must content themselves with ‘rough justice.’” Rembert v. A Plus
Home Health Care Agency LLC, 986 F.3d 613, 618 (6th Cir. 2021) (quoting Carter v. Hickory
Healthcare, Inc., 905 F.3d 963, 970 (6th Cir. 2018)). We see no reason to disturb the district
court’s determination as to fees, and FTS and UniTek set forth no additional argument to
conclude otherwise. Accordingly, we conclude that the district court did not abuse its discretion
in setting the attorney’s fees award for the work performed during the time covered by the
Plaintiffs’ application for fees.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s judgment in all respects
except as to its denial of judgment to Plaintiff Harlan; we REVERSE the district court’s denial
of judgment to Plaintiff Harlan and REMAND to the district court with instructions to enter
judgment in favor of Plaintiff Harlan. Because this action has been ongoing for over thirteen
years, we instruct the district court to act expeditiously in finalizing this case.