Daniel Cruz, et al v. Maverick County, et al

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 18-50885

DANIEL CRUZ; ARMANDO SANCHEZ,

Plaintiffs - Appellees

v.

MAVERICK COUNTY; MAVERICK COUNTY SHERIFF’S DEPARTMENT,

Defendants - Appellants

Appeal from the United States District Court
for the Western District of Texas

Before ELROD, WILLETT, and OLDHAM, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
This appeal concerns a dispute between the Appellants, Maverick
County and the Maverick County Sheriff’s Department (Maverick County or
County), and the Appellees, thirty-six Maverick County Sheriff’s Deputies
(Deputies). The district court found that Maverick County willfully violated
the Fair Labor Standards Act (FLSA) and that the Deputies were entitled to
backpay, liquidated damages, and attorneys’ fees. Maverick County appeals.
We AFFIRM the district court on all issues and REMAND to the district court
to consider an award of attorneys’ fees incurred on appeal.

United States Court of Appeals
Fifth Circuit
FILED
April 29, 2020

Lyle W. Cayce
Clerk
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I.
Maverick County, the Defendant-Appellant, is the employer of the
Plaintiffs-Appellees, thirty-six current and former Maverick County Sheriff
Deputies. The Deputies were paid on an hourly basis and classified as non-
exempt employees who were eligible to receive overtime premium pay for any
hours worked in excess of 40 hours per workweek.
In 2005, the Department of Labor completed an investigation of the
Maverick County Sheriff’s Department and concluded that it was failing to pay
minimum wages or overtime pay to employees. Maverick County gave its
assurance to the Department of Labor of “full future compliance with all
provisions of the Act” from that time forward.
In 2011, Judge David Saucedo became the County Judge. He was
responsible for setting the annual budget for each county department,
including the sheriff’s department. Upon assuming the position of County
Judge, he experienced difficulty maintaining budgets, describing Maverick
County as “hemorrhaging money.” In response, he took steps towards limiting
overtime work and implementing an across-the-board “pay freeze” in 2011,
2012, 2013, 2015, and 2016.
As part of these cutbacks, in October 2011 Maverick County allegedly
elected to stop paying the Deputies comp time for the hours worked in excess
of 40 per workweek. The Deputies allegedly complained about the unfair pay
practice publicly at County Commissioner’s meetings and informally to
Maverick County Sheriffs Tomas Herrera and Tom Schmerber. Many of the
Deputies also allege that they were told not to record their time accurately
because they would not be compensated for any hours worked over 40 per
workweek.
In October 2014, the Department of Labor completed a second
investigation of Maverick County’s failure to pay its employees’ overtime
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wages. The investigation covered March 2012 through March 2014, nearly the
entire time the illegal pay practice was allegedly in place.
In August 2014, the Deputies filed this case in the Western District of
Texas alleging that Maverick County violated the FLSA. Deputies Cruz and
Sanchez were the initial Plaintiffs and sought permission from the district
court for a conditional class certification in April 2015. Over thirty additional
Deputies joined Cruz and Sanchez by filing voluntary consent forms.
Five days before trial, Maverick County moved to strike the lawsuit as a
sanction for the Deputies’ failure to comply with their written discovery
obligations. The case was called for trial in September 2017. The parties
stipulated to a bench trial and Maverick County stipulated to liability for the
Deputies’ damages in failing to pay for any time worked over 40 hours per
workweek. The issues for trial were the willfulness of the County’s FLSA
violation and the amount of damages.
Maverick County invoked Federal Rule of Evidence 615 (Rule 615) for
exclusion of witnesses. The district court acknowledged the invocation of the
Rule and admonished counsel that witnesses would need to be sequestered. On
the second day of trial, the Deputies’ testimony regarding their overtime hours
shifted significantly from the first day’s testimony and their interrogatories,
becoming more uniform. The County believed that the Deputies violated Rule
615 and filed an oral and written motion to strike all Plaintiffs’ testimony.
In March 2018, the district court issued its Final Order of Judgment. In
this order it struck seven of the Deputies for failing to answer written discovery
requests. It denied Maverick County’s motion to strike testimony for a violation
of Rule 615, and it found that Maverick County willfully violated the FLSA. It
also awarded back wages and liquidated damages. In September 2018, the
district court rendered an order awarding attorneys’ fees, taxable costs, and
interest to the Deputies. Maverick County appeals.
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II.
Maverick County raises four issues for our review. First, whether the
district court abused its discretion by not dismissing the class of Plaintiffs for
not complying with discovery rules. Second, whether the district court abused
its discretion in not striking litigants’ testimony because of violations of Rule
615. Third, whether the district court clearly erred in finding that Maverick
County willfully violated the FLSA. And fourth, whether the district court
abused its discretion by awarding the Deputies attorneys’ fees. We discuss each
issue in turn and affirm the district court on all issues.
A.
The first issue before us in this case is whether the district court
committed reversible error by declining to dismiss the entire class of Plaintiffs
for failing to make Federal Rule of Civil Procedure 26 (Rule 26) initial
disclosures and comply with the court’s discovery orders. Maverick County
complains that out of the thirty-six class members, not a single litigant
provided a computation of damages. And after the district court ordered the
Deputies to answer discovery, thirteen of the thirty-six provided answers that
Maverick County views as “inadequate.” Maverick County moved to strike the
entire class of plaintiffs, which would result in a dismissal of the entire suit.
The district court declined to do so and instead struck only seven class
members from the case. Maverick County claims that this was reversible error
because it believes the district court should have struck the entire class. We
disagree and hold the district court did not abuse its discretion by allowing the
majority of the class members to participate in the suit.
1.
We review sanctions for violations of discovery orders by first reviewing
the underlying discovery order. F.D.I.C. v. Conner, 20 F.3d 1376, 1380 (5th Cir.
1994). The “review of the underlying discovery order is deferential: ‘The trial
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court’s exercise of discretion regarding discovery orders will be sustained
absent a finding of abuse of that discretion to the prejudice of a party.’” Id. at
1381 (quoting Hastings v. N.E. Indep. Sch. Dist., 615 F.2d 628, 631 (5th Cir.
1980)).
2.
We have said that for a court to justify dismissal as a sanction for
violating a discovery order, each of the following factors must be clearly present
in the record: “(1) the refusal to comply results from willfulness or bad faith
and is accompanied by a clear record of delay or contumacious conduct; (2) the
violation must be attributable to the client instead of the attorney; (3) the
violating party’s misconduct must substantially prejudice the opposing party’s
preparation for trial; and (4) a less drastic sanction would [not] substantially
achieve the desired deterrent effect.” Conner, 20 F.3d at 1380–81. We have also
required that some lesser, preliminary sanction be proven futile before
resorting to dismissal. See id. at 1380.
1

Maverick County cannot demonstrate these factors on this record.
Maverick County’s brief is silent on any bad faith on the part of the Deputies.
And it cannot point to any specific delay or noncompliance that was directly
the result of the Deputies’ conduct and not that of their attorneys. There is no
evidence in the record that Maverick County asked the district court to compel

1
In its briefing, Maverick County contends that the standard for reviewing sanctions
for failure to comply with a discovery order is not as strict as the test outlined in Oprex. The
County argues that we instead should consider: “(1) the importance of the witnesses’
testimony; (2) the prejudice to the opposing party of allowing the witnesses to testify; (3) the
possibility of curing such prejudice by granting a continuance; and (4) the explanation, if any,
for the party’s failure to comply with the discovery order.” Sierra Club, Lone Star Chapter v.
Cedar Point Oil Co., 73 F.3d 546, 572 (5th Cir. 1996). But Maverick County does not ask for
just any discovery sanction. It asked the district court to dismiss the case entirely. This
remedy “should not be used lightly, and should be used . . . only under extreme
circumstances.” Conner, 20 F.3d at 1380. It is therefore subject to the more stringent review
outlined in Oprex. 704 F. App’x at 378.
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discovery or impose a lesser, preliminary sanction. And while Maverick County
claims that the Rule 26 disclosures prejudiced it, it cannot point to any
substantial prejudice.
In fact, Maverick County itself only passively participated in discovery.
It did not seek any depositions until after the close of discovery, it did not file
a single motion to compel discovery, and it provided 4000 additional pages of
discovery documents to the Deputies after trial. While the Deputies did not
comply with all discovery rules, and it is safe to assume that Maverick County’s
trial preparation was hampered by the Deputies’ failure to comply with
discovery obligations, the County’s own passive participation in discovery
makes it difficult to conclude that the Deputies’ shortcomings substantially
prejudiced Maverick County. And it makes it even more difficult to conclude
that dismissal is warranted, as we have reserved dismissal as a discovery
sanction for “extreme circumstances.” Oprex, 704 F. App’x at 378.
Maverick County cites to Moore v. CITGO Refining and Chemicals Co.,
735 F.3d 309 (5th Cir. 2013), for support. In Moore, the district court dismissed
twenty-one out of twenty-four class members as a discovery sanction. Id. at
314. Later, the remainder of the class was prevented from testifying at trial
because the class members had engaged in a pattern of “fail[ing] to participate
in discovery, fail[ing] to properly supplement responses, and fail[ing] to
preserve documents.” Id. This court upheld the discovery sanction. The County
argues that this case is analogous, but it is not. The plaintiffs in Moore were
actively engaged in the spoliation of evidence. Id. at 314–15. The spoliation
continued even after an intermediate fine of $100 per piece of destroyed
evidence was imposed. Id. And, the defendants in Moore were prompt in
complying with their own discovery obligations and regularly complained to
the court to compel the plaintiffs’ compliance. Id. Here, Maverick County
makes no allegations regarding spoliation or bad faith, there was no
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intermediate sanction requested or imposed, and Maverick County did not
diligently comply with its own discovery obligations.
The district court did not turn a blind eye to the County’s motion to strike
or the Deputies’ lackluster discovery performance. In its final judgment, the
district court struck seven Plaintiffs who did not make initial disclosures or
answer interrogatories. But in its discretion, the district court determined that
the remainder of the Deputies should not be dismissed. We affirm this decision.
B.
Maverick County next argues that the district court erred “by tolerating
blatant violations of [Rule 615] that allowed the [Deputies] to float overinflated
and scripted damage calculations into evidence.” It asks that we reverse the
district court’s decision and determine the Deputies’ testimony should not be
considered. We affirm the district court’s decision.
1.
To reverse a judgment based on a decision to include testimony that
violated a sequestration order, “a party must demonstrate an abuse of
discretion and ‘sufficient prejudice.’” United States v. Wylie, 919 F.2d 969, 976
(5th Cir. 1990) (quoting United States v. Ortega-Chavez, 682 F.2d 1086, 1089
(5th Cir. 1982)). “In evaluating whether an abuse of discretion has occurred,
the focus is upon whether the witness’s out-of-court conversations concerned
substantive aspects of the trial and whether the court allowed the defense fully
to explore the conversation during cross examination.” Id. The district court
has broad discretion to determine whether Rule 615 has been violated and, if
so, what sanctions should be imposed. McKee v. McDonnell Douglas Tech.
Servs. Co., 700 F.2d 260, 262 (5th Cir. 1983). Even if the Rule has been violated,
the trial court has discretion to allow the testimony thereafter. Wylie, 99 F.2d
at 976. “In general, failure of a witness to abide by the sequestration order
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rarely will require reversal.” Verdin v. Sea-Land Serv., No. 92-2833, 1993 WL
455645, *4 (5th Cir. Oct. 25, 1993) (unpublished).
2.
On the second day of trial, the Deputies’ testimony significantly shifted
from their interrogatories and the testimony given on the first day of trial. It
changed so much that the district court remarked: “[I]t’s amazing how they all
have different numbers in their interrogatories and they all very magically
come in and say 15 hours per week all of a sudden.” One Deputy, Mr. Aaron
Horta, referenced conversations with a group of Plaintiffs that occurred outside
of the courtroom and while carpooling to the courthouse with fellow litigants.
He mentioned that the Deputies had discussed matters related to their
testimony and the number of overtime hours they would claim.
Maverick County takes issue with Mr. Horta’s testimony and believes
that the discussions he referenced caused the shift in the number of reported
hours seen on the second day of trial. The County moved to strike nearly every
plaintiff’s testimony based on a violation of the sequestration order. It argues
that Cruz and Sanchez, the lead litigants, as well as nearly all other Plaintiffs,
were implicated by Horta’s testimony in “colluding to fabricate . . . grossly
inflated estimates of hours worked.”
The district court viewed the shift in testimony differently. It explained
that “[u]nquestionably, the testimony of the [Deputies] shifted to reflect more
uniformity, thus indicating that the [Deputies] indeed conferred with each
other. However, based on the record, the Court finds that counsel was central
to the majority of any of the out-of-court communications between the
[Deputies.]” The district court noted that after failed settlement negotiations
on the morning of the second day of trial, it ordered counsel to confer with their
clients. The district court concluded that “counsel must have had a
conversation with the [Deputies] about the discussion in chambers, which
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would explain the uniformity of the numbers of hour[s] worked during the
testimony of the later witnesses.” Because “[t]he right to counsel, even in civil
cases ‘is one of constitutional dimensions and should thus be freely exercised
without impingement,’” the district court concluded Rule 615 could not be
applied to attorney-client communications. It therefore “f[ound] insufficient
evidence that any of the [Deputies] violated [Rule 615].”
We ultimately affirm the district court’s conclusion. However, we are
concerned by the sudden shift in testimony on the second day of trial and the
possible violations of the sequestration order that came to light in Mr. Horta’s
testimony. It appears likely to this court that the sequestration order was not
carefully followed or enforced. If this question was before us in the first
instance or here on de novo review, we may have found a sanction was
warranted. But our caselaw instructs that district courts have broad discretion
to assess whether a violation of Rule 615 occurred. McKee, 700 F.2d at 262.
Here, the district court concluded that there was insufficient evidence to
conclude that a violation occurred. It did so after allowing thorough cross-
examination of Mr. Horta by the County and a review of other factors that
could have led to the shift in testimony—such as conversations between the
Deputies and their attorney. See United States v. Posada-Rios, 158 F.3d 832,
872 (5th Cir. 1998) (citing Wylie ̧ 919 F.2d at 976) (finding no abuse of
discretion where the defense was permitted to fully explore the conversation
during cross-examination). This conclusion was within the district court’s
discretion. We may well have used our discretion differently, but that is not
the question before us.
The district court further supported its decision to not strike the
testimony by concluding that even if the Deputies had violated the Rule, they
did not do so knowingly. It explained that “some of the witnesses may have
talked beforehand with others about their testimony” but “these witnesses had
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not yet been sworn in by the Court or warned by the Court of its obligation
under [Rule] 615.” And “[e]ven though they were still bound by the confines of
[Rule] 615, and even though counsel should have warned them of their
obligation, their level of culpability in violating the [R]ule is very low. Striking
their testimony would therefore be too harsh a sanction.”
And the district court reasoned that any prejudice caused to Maverick
County from an alleged violation was mitigated because the district court was
“well aware of the shift in testimony” and as the finder of fact could “assess the
credibility of witnesses and determine an accurate average number of hours
worked by the [Deputies].” It therefore concluded that even if the Rule was
violated, the testimony should be considered.
The conclusion that any alleged violation of the Rule was not willful or
prejudicial was reasonable. And allowing the testimony was within the court’s
discretion. For the foregoing reasons we conclude the district court did not
commit reversible error by not striking the Deputies’ testimony.
C.
The third issue that Maverick County raises on appeal is that the district
court erred in determining Maverick County’s violation of the FLSA was
willful. The FLSA provides for a two-year statute of limitations for suing under
the statute. 29 U.S.C. § 255(a). However, the period may be extended to three
years if an employer’s conduct was in willful violation of the law. Id. Maverick
County argues that its conduct was not willful and therefore the two-year
statute of limitations applies. The district court determined the conduct was
willful and therefore the three-year statute of limitations applied. The County
argues that the finding of willfulness was erroneous. We disagree and affirm
the district court.

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1.
The issue of an employer’s willfulness pursuant to the FLSA is a question
of fact we review for clear error. Steele v. Leasing Enters., Ltd., 826 F.3d 237,
248 (5th Cir. 2016). To the extent that a court bases its determination of
willfulness upon credibility determinations, those determinations are “subject
to great deference on appeal.” Mireles v. Frio Foods, Inc., 899 F.2d 1407, 1413
(5th Cir. 1990), (citing Anderson v. City of Bessemer City, 470 U.S. 564, 575
(1985) (“[F]or only the trial judge can be aware of the variations in demeanor
and tone of voice that bear so heavily on the listener’s understanding of and
belief in what is said.”)). Conduct is willful if the employer either “knew or
showed reckless disregard for . . . whether its conduct was prohibited by the
statute.” Singer v. City of Waco, 324 F.3d 813, 821 (5th Cir. 2003) (quoting
Reich v. Bay, Inc., 23 F.3d 110, 117 (5th Cir. 1994)).
2.
Whether Maverick County knew its conduct was prohibited by statute
was disputed at trial. The Deputies testified that “shortly after the illegal
payment practice [went] into effect, several Deputies [began] to complain at
public meetings of the Maverick County Commissioner’s Court where Judge
Saucedo was present.” Judge Saucedo offered conflicting testimony. He
admitted at trial that he “possibly” remembered Sheriff Herrera complaining
about the improper pay practices. However, on questioning later he reversed
course and said that neither Sheriff Herrera, nor anyone else, ever brought the
unpaid overtime to his attention.
Based on the district court’s final judgement, it is clear that it credited
the Deputies’ testimony over Saucedo’s. It found that the “[D]eputies made
statements, the week of the change, at the Commissioners Court meeting
regarding the department no longer paying overtime or comp time.” It also
looked to the Labor Investigation findings from both 2005 and 2014 and
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concluded that because there was a previous investigation in which Maverick
County had violated the FLSA, Maverick County “had knowledge of the FLSA’s
overtime wage requirement.”
It ultimately found that Maverick County “knew the [Deputies] were not
being paid overtime in accordance with the law, and made promises to pay the
[Deputies] correctly, but never did so.” It concluded that “Maverick County, as
an institution, did act willfully here because it knew about the failure to pay
overtime wages and it was on notice it needed to be paying those wages.” See
Singer, 324 F.3d at 821 (explaining that conduct is willful if the employer
either “knew or showed reckless disregard for . . . whether its conduct was
prohibited by the statute”) (quoting Reich, 23 F.3d at 117).
Maverick County disagrees but cannot demonstrate clear error. The
willfulness finding came down to credibility determinations by the district
court, which we have said entitles it to “great deference on appeal.” Mireles,
899 F.2d at 1413. The district court reasonably credited the Deputies’
testimony over Judge Saucedo’s. It further supported its finding by relying on
the fact that Maverick County knew of its obligations under the FLSA because
of the previous Department of Labor investigations. Maverick County has not
pointed us to any clear error. Therefore, we affirm the district court’s finding
of willfulness.
2

2
Related to the district court’s finding of willfulness, Maverick County challenges the
district court’s award of liquidated damages, because it claims it acted in good faith. The
FLSA has a provision that says “any employer who violates the provisions of section 206 or
section 207 of this title shall be liable to the employee or employees affected in the amount of
. . . their unpaid overtime compensation . . . and in an additional equal amount as liquidated
damages.” 29 U.S.C. § 216(b). Section 260 contains an exception to the liquidated damages
provision if an employer can show it acted in good faith and had reasonable grounds for
believing his act or omission was not a violation of the FLSA. Id. § 260.
While Maverick County contends that it acted in good faith, our precedent makes clear
that the exception in § 260 cannot be used when the district court found willfulness. Singer,
324 F.3d at 823 (“In this case, the jury found the City’s actions to be willful. As a result, the
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D.
Maverick County’s last challenge on appeal is that the district court
erred by awarding unreasonable attorneys’ fees to the Deputies. The County
acknowledges that the FLSA requires attorneys’ fees to be awarded to the
prevailing party, but it claims that the amount of attorneys’ fees awarded to
the Deputies was unreasonable. We affirm the district court’s award of
attorneys’ fees.
1.
We review a district court’s determination of reasonable attorneys’ fees
for an abuse of discretion and all findings of fact supporting the award for clear
error. Black v. SettlePou, P.C., 732 F.3d 492, 496 (5th Cir. 2013) (citing
McClain v. Lufkin Indus., Inc., 519 F.3d 264, 284 (5th Cir. 2008)). We review
“challenges to a district court’s lodestar adjustment for abuse of discretion, and
specifically to ‘determine if the district court sufficiently considered the
appropriate criteria.’” Gurule v. Land Guardian, Inc., 912 F.3d 252, 258 (5th
Cir. 2018) (quoting Black, 732 F.3d at 502).
2.
In this circuit, attorneys’ fees are calculated by the lodestar method—
multiplying the number of hours reasonably expended by an appropriate
hourly rate. Shipes v. Trinity Indus., 987 F.2d 311, 319-20 (5th Cir. 1993). After
the lodestar method is applied, courts use a twelve-factor test to determine
whether counsel’s performance requires an upward or downward adjustment

City could not show that it acted in good faith.”); Heidtman v. City of El Paso, 171 F.3d 1038,
1042 (5th Cir. 1999) (“Because employers cannot act in good faith based on reasonable
grounds when they suspect that they are out of compliance with the FLSA, it would have
been an abuse of discretion if the district court had not awarded liquidated damages.”).
Because we affirm the district court’s finding of willfulness, we also affirm the award of
liquidated damages.

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from the lodestar. Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th
Cir. 1974), abrogated on other grounds by Blanchard v. Bergeron, 489 U.S. 87
(1989).
3

As mandated by the FLSA, the district court awarded attorneys’ fees to
the Deputies’ counsel. It credited one attorney, Glenn Levy, with 424 hours and
the other, Melinda Arbuckle, with 232 hours.
4
The County contests this award
of attorneys’ fees under two of the twelve Johnson factors: “time and labor
required” and “the amount involved and the results obtained.” Id. at 717–18.
Maverick County argued at the district court, and again on appeal, that
a downward departure from the lodestar is necessary because the “time and
labor required” by the case is less than the hours submitted by counsel. The
County proposed caps of 150 hours for Mr. Levy and 66 hours for Ms. Arbuckle.
It claims that is a reasonable assessment of the “time and labor required”
because there was a long period of time during discovery that no work was
done on the case, and Ms. Arbuckle did not make her initial appearance in the
case until seven days before trial. However, both Mr. Levy and Ms. Arbuckle
presented billing reports that provided a record of their hours that accounted
for the long periods of inactivity during discovery by showing few to no hours

3
The Johnson factors are: (1) “the time and labor required”; (2) “the novelty and
difficulty of the questions”; (3) “the skill requisite to perform the legal service properly”; (4)
“the preclusion of other employment by the attorney due to acceptance of the case”; (5) “the
customary fee”; (6) “whether the fee is fixed or contingent”; (7) “time limitations imposed by
the client or the circumstances”; (8) “the amount involved and the results obtained”; (9) “the
experience, reputation, and ability of the attorneys”; (10) “the ‘undesirability’ of the case”;
(11) “the nature and length of the professional relationship with the client”; and (12) “awards
in similar cases.” 488 F.2d at 717–19.
4
This was a slight downward departure from the hours submitted by counsel of 424.9
hours for Mr. Levy and 232.9 hours for Ms. Arbuckle. The court also departed downward from
the proposed hourly rate for Mr. Levy, who requested a billing rate of $450 per hour, and Ms.
Arbuckle, who requested a billing rate of $325 per hour. The court found they were both
entitled to a billing rate of $300 per hour.
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billed during that time. The County does not point to any specific part of the
billing records that is unreasonable or inaccurate.
The County also argues that “the amount involved and the results
obtained” warrant a downward departure. This factor considers “the amount
of damages” and “relief granted.” Id. at 718. Maverick County points out that
the district court’s final award was 51% lower than the Deputies sought in
their post-trial motions and the Deputies lost 20% of the members of their class
based on non-compliance during discovery. The County believes this result,
which is an “order of magnitude” lower than what the Deputies demanded,
warrants reducing the lodestar.
The district court “d[id] not agree” that a downward departure was
warranted, “as the [Deputies] not only submitted enough evidence to establish
that they were owed a significant amount of unpaid overtime” but that
Maverick County “committed this violation willfully . . . entitling them to
liquidated damages.”
We agree with the district court. Despite the final award being lower
than what the Deputies requested, the Deputies prevailed at trial and received
both compensatory and liquidated damages. Maverick County cannot point to
a single case in which this level of success at trial resulted in a downward
departure to the lodestar.
Further, our case law instructs that in reviewing adjustments to the
lodestar, we need only consider whether the district court properly considered
the “appropriate criteria.” Gurule, 912 F.3d at 258. The district court order
makes clear that it evaluated the lodestar and Johnson factors. It looked at
billing records, filings, the complexity of the case, and the degree of success
experienced by the parties. All of these considerations are “appropriate
criteria” for adjusting a lodestar. See id. The district court’s award of attorneys’
fees was not an abuse of discretion. We affirm the award of attorneys’ fees.
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III.
The Deputies ask us to remand to the district court for consideration of
attorneys’ fees on appeal. We have held that prevailing plaintiffs under the
FLSA may recover “an additional fee to compensate counsel for their services
in connection with the appeal.” Gagnon v. United Technisource, Inc., 607 F.3d
1036, 1045–46 (5th Cir. 2010) (quoting Montalvo v. Tower Life Bldg. ̧ 426 F.2d
1135, 1150 (5th Cir. 1970)). The County does not respond to this request. We
remand to the district court to consider an award of attorneys’ fees incurred on
appeal.
IV.
For the foregoing reasons, we AFFIRM the district court on all issues
and REMAND to the district court for consideration of attorneys’ fees on
appeal.
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