Mayra Dominguez-Cortez v. Michael B. Mukasey

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-3825
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David Lash, Sr., *
*
Plaintiff - Appellant, *
*
David Lash, Jr., *
*
Plaintiff, * Appeal from the United States
* District Court for the Eastern
v. * District of Missouri.
*
Michael Hollis, in his official and * [UNPUBLISHED]
individual capacity; Adam Swon, in his *
official and individual capacity; *
Anthony Bowne, in his official and *
individual capacity; John Kirkpatrick, *
in his official and individual capacity, *
*
Defendants - Appellees. *
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Submitted: September 21, 2009
Filed: October 8, 2009
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Before MELLOY, BEAM, and GRUENDER, Circuit Judges.
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PER CURIAM.
David Lash, Sr., appeals from the district court's judgment regarding attorney
fees following remand from our court. Lash v. Hollis, 525 F.3d 636 (8th Cir. 2008).

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1We note that our court awarded Appellant separate and substantial fees for
work performed on the first appeal.
-2-
On remand, the district court reconsidered the fee issue, started with the lodestar
amount of approximately $85,000 (as approved in the initial appeal), and applied
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983), to adjust the lodestar amount to a
final award. In a written order, the district court expressly discussed what it
considered to be the two most important Hensley factors given the facts of the present
case: the relatedness of successful and unsuccessful claims and the plaintiff's overall
level of success. Id. at 434–35 (relatedness of claims) & 435–36 (level of success).
Applying Hensley, the district court modestly increased the attorney fee award from
the original amount of $10,616 as awarded following trial to $16,985.75. Appellant
argues that the reduction from the lodestar amount still amounts to an abuse of
discretion. Appellant also argues that the district court's denial without comment of
a separate fee application for work performed post-remand was an abuse of discretion.
"We review the actual award of attorneys' fees and costs for abuse of
discretion." Lowry ex rel. Crow v. Watson Chapel Sch. Dist., 540 F.3d 752, 763 (8th
Cir. 2008). Appellant's primary argument is that the district court failed to consider
all of the Hensley factors on remand and that the reduction from the loadstar amount
to $16,985.75 for work performed prior to the first appeal was an arbitrary reduction.1
We find no abuse of discretion in the district court's fee award. Different
Hensley factors may merit different weight in individual cases, and it is not always
necessary for a trial court to expressly discuss each factor. This is especially true in
cases such as this where Appellant failed to submit evidence relevant to every Hensley
factor. Further, as the Supreme Court has noted, several of the factors are partially
subsumed within the lodestar calculation itself, Hensley, 461 U.S. at 434 n.9, and
district courts "necessarily [have] discretion" in exercising judgment as to fee awards.
Id. at 437.

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-3-
Regarding the Appellant’s separate application for fees as to work performed
following our remand, the parties agree that the district court's denial of fees without
comment provides an insufficient basis for review. Because the parties stipulate that
remand is necessary to obtain a statement of reasons for this denial of fees, we remand
as to this issue. In doing so, we make no comment as to the propriety of the district
court's denial of fees for post-remand attorney work.
We affirm in part and reverse in part the judgment of district court and remand
for further proceedings consistent with this opinion.
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