Rule 68 Offers Can Contractually Cut Off § 1988 “Fees-on-Fees,” and Across-the-Board Lodestar Reductions Must Be Principled: Commentary on Otto v. City of Boca Raton (11th Cir. 2025)

Introduction

This Eleventh Circuit, non-argument, per curiam decision arises from a fee dispute following a high-profile First Amendment challenge to municipal bans on Sexual Orientation Change Efforts (SOCE) counseling. Plaintiffs Dr. Robert W. Otto and Dr. Julie H. Hamilton—marriage and family therapists—prevailed on the merits after this Court previously held that the ordinances violated the First Amendment (Otto v. City of Boca Raton, 981 F.3d 854 (11th Cir. 2020)). On remand, they accepted Rule 68 offers of judgment from the City of Boca Raton and Palm Beach County, and then sought attorney’s fees and costs under 42 U.S.C. § 1988.

The district court awarded substantially less than requested, prompting plaintiffs’ appeal and a cross-appeal by the City. The Eleventh Circuit vacated in part and remanded with instructions to increase the fee award to $884,374.77 and leave expenses at $659.92 (totaling $885,034.69). Along the way, the Court clarified several important points about fee awards in civil rights cases:

Rule 68 offers can contractually limit § 1988 fee recovery—including “fees-on-fees”—to fees “accrued to date.”
Out-of-town counsel travel time and costs are not recoverable absent a concrete showing that competent local counsel were unavailable or unwilling.
Across-the-board reductions must be grounded in specific, articulated reasons; a bare 25% haircut is impermissibly arbitrary.
“Vague” time entries are not vague if they are linked to identifiable litigation tasks; block billing warrants surgical, not wholesale, reductions.
Current rates are not automatic; historical rates may be used unless “extraordinary circumstances” justify enhancement for delay under Perdue v. Kenny A.
Attorneys not admitted to the district court’s bar may still receive attorney rates for out-of-court work, consistent with the court’s local rules.
“Undesirability” does not justify a lodestar multiplier here; it is generally subsumed within the lodestar.
Online research and shipping costs must be sufficiently documented to show necessity; generic invoices are insufficient.

Although “Not for Publication,” the decision offers persuasive guidance within the Eleventh Circuit on structuring Rule 68 offers, presenting fee petitions, and assessing reasonable rates and hours in § 1988 litigation.

Summary of the Opinion

The Eleventh Circuit vacated the district court’s fee order and remanded with instructions to increase the fee award to $884,374.77 (plus $659.92 in expenses).

Key holdings and dispositions:

Rule 68 and “fees-on-fees”: The Court affirmed the district court’s interpretation of the Rule 68 offers to limit recoverable fees to those “accrued to date” (the date of each offer), thereby excluding post-offer “fees-on-fees.”
Travel time and expenses: Affirmed exclusion because plaintiffs failed to show that reasonably comparable local counsel were unavailable or unwilling.
Across-the-board reduction: Reversed the district court’s 25% across-the-board reduction as arbitrary; supplied a principled recalculation that effectively yields roughly a 10% reduction to the compensable hours after excluding post-offer and travel time (expressed as a 20% reduction when applied to the pre-exclusion total for ease of allocation).
Hourly rates: Affirmed use of historical rates for pre–February 2020 work and current rates thereafter (no extraordinary delay warranting current rates throughout). Affirmed reliance on Liberty Counsel’s rates from the similar Vazzo litigation despite a different local market because the evidence supported reasonableness.
Non-admitted attorneys’ rates: Rejected the City’s cross-appeal seeking paralegal rates for lawyers not admitted to the district’s bar; the local rules permitted out-of-court participation without pro hac vice admission, and the district court’s interpretation of its own rules merits deference.
Multiplier: Denied the requested 150% enhancement for “undesirability” of the case; such factors are typically subsumed in the lodestar, and no “rare” or “exceptional” circumstance justified enhancement.
Expenses: Affirmed denial of Westlaw and FedEx expenses for lack of specific documentation tying them to necessary litigation tasks.

Background and Procedural Posture

Plaintiffs challenged municipal ordinances banning SOCE counseling, alleging First Amendment violations. The district court initially denied a preliminary injunction; the Eleventh Circuit reversed in 2020, holding the bans unconstitutional. On remand, the defendants made Rule 68 offers, which plaintiffs accepted, resulting in final judgment for plaintiffs. Plaintiffs then sought § 1988 fees of over $2.1 million (including a 150% multiplier) and expenses; the district court awarded about $736,227.53 in fees and $659.92 in expenses. Plaintiffs appealed; the City cross-appealed on the attorney-rate issue for non-admitted lawyers.

Analysis

Precedents Cited and Their Influence

Blum v. Stenson, 465 U.S. 886 (1984): Establishes the lodestar method (reasonable hours × reasonable rate) as the starting point for § 1988 fees and the strong presumption that the lodestar is reasonable.
Perdue v. Kenny A., 559 U.S. 542 (2010): Enhancements are rare; delay enhancements require “extraordinary circumstances” and unjustifiable defense-caused delay. Guided the denial of current rates across the board and rejection of a multiplier.
Norman v. Housing Authority of Montgomery, 836 F.2d 1292 (11th Cir. 1988): Articulates the fee applicant’s burden, the court’s power to use its own experience, and “billing judgment.” Cited for excising excessive, redundant, or unnecessary time and for methodologically sound reductions.
Marek v. Chesny, 473 U.S. 1 (1985): Rule 68 offers are governed by their terms; if costs are “included,” acceptors are bound accordingly. Anchors the interpretation that fees were limited to those “accrued to date.”
Evans v. Jeff D., 475 U.S. 717 (1986) and Pottinger v. City of Miami, 805 F.3d 1293 (11th Cir. 2015): Parties may waive or limit fees by agreement; reinforces the contractual nature of Rule 68 terms.
ACLU of Georgia v. Barnes, 168 F.3d 423 (11th Cir. 1999): Travel by out-of-town counsel is compensable only if no local counsel is willing and able; applied to deny travel time and costs here.
Loranger v. Stierheim, 10 F.3d 776 (11th Cir. 1994) and Johnston v. Borders, 36 F.4th 1254 (11th Cir. 2022): Across-the-board percentage cuts are permissible but must be explained with principled reasons; used to invalidate the district court’s bare 25% reduction.
Oxford Asset Mgmt. v. Jaharis, 297 F.3d 1182 (11th Cir. 2002): Billing records must be specific enough to assess reasonableness for discrete tasks; informs the Court’s nuanced approach to block billing.
Missouri v. Jenkins, 491 U.S. 274, 288 n.10 (1989): Purely clerical or secretarial tasks are non-compensable at attorney or paralegal rates; guided targeted reductions for clerical activity embedded in block-billed entries.
Gray ex rel. Alexander v. Bostic, 613 F.3d 1035 (11th Cir. 2010): Perdue modifies prior practice on delay enhancements; current rates require extraordinary circumstances.
Tobinick v. Novella, 884 F.3d 1110 (11th Cir. 2018): Great deference to a district court’s interpretation of its own local rules; underpins affirmance of attorney rates for non-admitted lawyers’ out-of-court work.
Brooks v. Georgia State Board of Elections, 997 F.2d 857 (11th Cir. 1993) and Silva v. Pro Transp., 898 F.3d 1335 (11th Cir. 2018): Evidence of prevailing market rates and clear-error review of rate findings; used to sustain the rates selected by the district court, including reliance on rates requested in a similar SOCE case (Vazzo).
Villano v. City of Boynton Beach, 254 F.3d 1302 (11th Cir. 2001): Prevailing parties ordinarily recover fees for litigating the fee petition, but contractual limitations (Rule 68 here) can alter that default.
Gay Lesbian Bisexual Alliance v. Sessions, 930 F. Supp. 1492 (M.D. Ala. 1996): Cited by plaintiffs for undesirability; the Eleventh Circuit distinguished modern practice and declined a multiplier.

Legal Reasoning

1) Rule 68 Offers and Fees “Accrued to Date”

Applying ordinary contract principles to the Rule 68 offers (Vasconcelo v. Miami Auto Max; Norfolk Southern v. Chevron), the Court enforced the unambiguous term that the defendants would pay damages plus “costs (including reasonable statutory attorney’s fees … as determined by the Court) accrued to date.” Plaintiffs accepted this term and acknowledged that the offers resolved liability for fees and costs, with only the amount to be determined. Consequently, “fees-on-fees” incurred after the offer dates were excluded. This sets a clear roadmap: if a Rule 68 offer specifies a temporal cut-off for fees, plaintiffs who accept are bound to that cut-off.

2) Travel Time for Out-of-Town Counsel

Attorney travel may be recoverable if reasonably necessary (Johnson; Dowdell). Under Barnes, plaintiffs must show a lack of willing and able local counsel. While Liberty Counsel had SOCE-ban experience and the case was controversial, plaintiffs did not show that First Amendment specialists in the robust Palm Beach legal market were unavailable or unwilling. The Court rejected generalized assertions about controversy and noted no effort to recruit local counsel. Thus, 86.3 hours of travel time and associated expenses were properly excluded.

3) Across-the-Board Reductions Must Be Principled

The district court’s 25% reduction—over 500 hours—was deemed arbitrary because it lacked a reasoned allocation among identified billing issues. The Eleventh Circuit addressed each concern:

“Vague” entries: The record did not show time entries that merely said “drafting” or “preparing” without further detail. Entries like “continued drafting of motion for preliminary injunction” or “prepare initial disclosures” are sufficiently informative. A reduction on this basis was clearly erroneous.
Excessive time on initial pleadings and oral argument prep: Given overlap with prior pleadings in Vazzo, a 50% cut to initial pleadings time was warranted. For oral argument preparation—124 hours—the Court encouraged rigorous prep but found 15+ eight-hour days excessive; it imposed a 40% cut.
Settlement demand email: Plaintiffs did not oppose a modest trim; the Court reduced 1.3 hours by 20%.
Block billing: The Court distinguished benign, closely related task blocks (easily reviewed) from entries embedding non-compensable clerical tasks (e-filing/service, calendaring, organizing, court calls). It made targeted deductions—about 10–15 minutes where e-filing/service appeared, and roughly 30 additional hours for other clerical tasks. It also trimmed approximately eight hours to account for likely excessive internal conferencing, attributing 30 minutes to each conference entry and reducing by about 15%.
Avoiding double penalties: The magistrate had separately reduced 11.6 hours for “exercising billing judgment,” but those hours were already excluded as post-offer “fees-on-fees”; the Court corrected this double count.

After excluding post-offer time (169.5 hours) and travel (86.3 hours), the Court concluded that the remaining 2,019 hours warranted, in total, about a 10% reduction for overbilling issues. When expressed globally across all requested hours, this translated to a proportional 20% cut to the original 2,274.8 hours, leaving 1,819.9 compensable hours and producing the specific dollar award at the rates the district court had adopted.

4) Historical vs. Current Rates and the “Relevant Market”

The Court affirmed the use of historical rates for work through February 2020 and current rates thereafter. Under Perdue and Gray, current rates (or delay enhancements) require extraordinary circumstances, such as unjustified defense-caused delay. Although the case spanned nearly five years and included an interlocutory appeal, the Court found no extraordinary delay attributable to defense misconduct.

On the relevant market, the Court sustained the district court’s reliance on Liberty Counsel’s 2019 Vazzo fee request (from the Middle District’s Tampa Division) to anchor pre-2020 rates. While the general rule pegs market rates to where the case is filed (Barnes), the rates in Vazzo involved the same counsel performing nearly identical work. Plaintiffs’ reliance on an S.D. Fla. order (Kleiman v. Wright) mentioning a $670/hour top West Palm Beach litigator did not compel higher rates in this case. Under clear-error review, the choice was within the district court’s discretion.

5) Attorney Rates for Non-Admitted Lawyers’ Out-of-Court Work

The Court rejected the City’s cross-appeal seeking paralegal rates for lawyers who had not moved for pro hac vice admission. The Southern District of Florida’s local rules permit only bar members to “appear” as attorneys, except pro hac vice, but do not require pro hac admission for out-of-court work that does not involve appearing. The district court’s interpretation of its own rules deserved “great deference,” and awarding attorney rates for out-of-court legal work was not an abuse of discretion.

6) No Multiplier for “Undesirability”

Plaintiffs sought a 150% enhancement for “undesirability.” The Court reaffirmed that the lodestar subsumes most relevant factors, including undesirability (Perdue; Blum; Johnson factors), and enhancements are “rare” or “exceptional.” While SOCE litigation is contentious, general stigma or controversy is common in First Amendment cases and does not justify an enhancement, particularly where the district court already accounted for undesirability in setting the lodestar.

7) Expenses: Documentation Matters

The Court affirmed denial of Westlaw and FedEx costs because plaintiffs submitted only generic invoices and attestations. Without linking research transactions to specific litigation tasks or explaining the necessity of specific shipments, the district court lacked a basis to find the expenses “reasonably necessary” under Dowdell and Barnes. The upshot: counsel must offer task-level linkages between expenses and case needs.

Impact

Rule 68 drafting and acceptance: Parties now have clear guidance that Rule 68 offers can lawfully cut off “fees-on-fees” as of the offer date. Plaintiffs contemplating acceptance should account for post-offer fee work they will not recover.
Travel and local counsel: Out-of-town public-interest firms must document efforts to retain local counsel or demonstrate unavailability to recover travel time and costs in the Eleventh Circuit. Mere controversy does not suffice.
Billing practices:
- Courts will reject rote “vague entry” objections where narrative context shows what work was performed.
- Block billing is not per se fatal, but embedding clerical tasks invites targeted reductions; counsel should segregate clerical work and provide time allocations.
- Excessive oral-argument prep and wholesale reuse of pleadings without time calibration will be trimmed.
- Internal conferencing is compensable but must be kept within reasonable bounds.
Rates and delay: Current rates will not be applied across-the-board absent extraordinary, unjustified delay by the defense. Counsel should be prepared with market evidence pegged to the relevant locale and time period, but evidence from closely analogous cases with the same counsel may suffice.
Non-admitted attorneys: Within S.D. Fla., out-of-court work by non-admitted lawyers may be compensable at attorney rates, reinforcing the value of team-based litigation while respecting appearance rules.
Expense documentation: Vague or aggregate online research invoices are risky; link entries to tasks, topics, motion practice, or appellate work to establish necessity.

Note on precedential weight: The opinion is “Not for Publication” and thus is not binding precedent in the Eleventh Circuit. Nonetheless, it is persuasive and synthesizes controlling Supreme Court and Eleventh Circuit authority in a practical, fee-litigation context.

Complex Concepts Simplified

§ 1988 fees: A federal statute that allows prevailing parties in civil rights cases to recover reasonable attorney’s fees and certain litigation costs.
Lodestar: The baseline fee calculation: reasonable hours worked × reasonable hourly rate. This number is strongly presumed to be the correct fee.
“Fees-on-fees”: Time spent litigating the fee petition itself. Ordinarily recoverable—but here, contractually waived after the Rule 68 offer dates.
Rule 68 offer of judgment: A defendant’s offer to allow entry of judgment for a specified amount. If accepted, its terms control matters like costs and fees. Here, “accrued to date” limited the recoverable fee period.
Block billing: Grouping multiple tasks in a single time entry. Permissible if tasks are related and the total time is reasonable, but risky if it hides clerical work or masks excess.
Clerical tasks: Administrative functions such as e-filing, service, organizing files, calendaring, or status calls to the court—non-compensable at attorney or paralegal rates.
Historical vs. current rates: Historical rates are those prevailing when the work was performed; current rates compensate for delay. Under Perdue, current rates across the board require extraordinary delay attributable to the defense.
Pro hac vice: Special, case-specific permission for out-of-state lawyers to appear in a particular court. In S.D. Fla., out-of-court work does not require pro hac vice admission, though courtroom appearances do.
Multiplier/Enhancement: An upward adjustment to the lodestar for exceptional circumstances. Rarely granted post-Perdue; factors like “undesirability” are usually already captured in the lodestar analysis.

Practice Pointers

When evaluating Rule 68 offers: Read (and draft) fee and cost terms with precision. If you want post-offer “fees-on-fees,” negotiate for them before accepting.
Prove local unavailability for travel: Document outreach to local firms, expertise required, and specific declinations to justify out-of-town travel time and expenses.
Bill with clarity: Describe tasks with enough specificity to show necessity and reasonableness. Avoid block entries that mix clerical and legal work; if you must block, allocate time per subtask.
Control oral argument prep: Thoroughness is laudable; excessive hours are not. Use moot courts efficiently and document why time spent was proportional.
Reuse with restraint: When leveraging prior filings, discount drafting time or explain material differences that justify new effort.
Document expenses: For online research, include topics or tie charges to motions or briefs; for shipping, state contents and litigation necessity.
Rates evidence: Submit affidavits, billing surveys, and invoices from similar cases in the relevant market and time period, or from analogous matters with the same counsel.

Conclusion

Otto v. City of Boca Raton provides a detailed roadmap for § 1988 fee litigation in the Eleventh Circuit. It enforces the contractual nature of Rule 68 offers to limit post-offer “fees-on-fees,” underscores that out-of-town travel time is unrecoverable without strong evidence of local counsel unavailability, and rejects arbitrary percentage cuts to hours without principled justification. The Court takes a nuanced approach to billing records, distinguishing legitimately descriptive entries from truly vague ones, and tailoring reductions to specific defects (excessive pleading reuse, oral argument prep, embedded clerical labor, and excessive internal conferencing).

On rates, the Court reaffirms Perdue’s constraint on delay enhancements, upholds pragmatic reliance on rates from closely analogous litigation, and defers to district courts on local rule interpretations allowing attorney-level compensation for out-of-court work by non-admitted lawyers. Finally, it reiterates that multipliers are exceptional and that expense recovery turns on concrete proof of necessity.

The decision’s significance lies in its operational guidance: lawyers and courts alike gain a clearer framework for structuring Rule 68 offers, presenting and assessing fee petitions, and calibrating reasonable hours and rates. While unpublished, the opinion synthesizes binding Supreme Court and Eleventh Circuit precedents into practical doctrine likely to influence fee disputes across civil rights litigation in the Circuit.