NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 25, 2011
Decided October 7, 2011
Before
KENNETH F. RIPPLE, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 10‐3937
JOSEPH A. SOTTORIVA, Appeal from the United States District
Plaintiff‐Appellant, Court for the Central District of Illinois.
v. No. 3:06‐cv‐03118
ROCCO J. CLAPS, Director of the Illinois Michael P. McCuskey,
Department of Human Rights, and Chief Judge.
JUDY BAAR TOPINKA, Comptroller of
the State of Illinois,
Defendants‐Appellees.
O R D E R
Upon his return from a tour of duty in Iraq, Joseph Sottoriva sued his civilian
employer, the director of the Illinois Department of Human Rights, and the state
comptroller, raising three claims related to the Department’s withholding of portions of his
salary. The dispute arose because of a computer glitch that caused Sottoriva to be overpaid
during his time in Iraq. When he returned to work from active duty, the Department
sought to withhold a portion of his wages in order to correct and recoup the earlier error.
Sottoriva brought this suit, in which he sought a permanent injunction against the
withholding, damages from alleged tax losses, and the removal of the Director of the
Department.
No. 10‐3937 Page 2
Sottoriva was partially successful in the district court. The court entered partial
summary judgment in favor of Sottoriva, holding that the Department had violated his due‐
process rights by withholding portions of his salary without first giving him a hearing to
challenge the procedure. But the court denied his motion for a permanent injunction
prohibiting the withholding. The court also held that his claim for removal of the Director
was barred by the Eleventh Amendment. Based on the court’s ruling on summary
judgment, Sottoriva withdrew his tax‐losses claim prior to trial. See Sottoriva v. Claps,
617 F.3d 971, 974 (7th Cir. 2010).
Sottoriva then moved for attorney’s fees pursuant to 42 U.S.C. § 1988. After
calculating the “lodestar” fee, the district court reduced that amount by 67% “to reflect
Plaintiff’s limited degree of success.” Id. On appeal we agreed with the district court that a
downward adjustment of Sottoriva’s fees was warranted due to his limited success. But we
also determined that the district court failed to explain “how it settled on a 67% reduction.”
Id. at 976. We were especially concerned because the 67% reduction might have been based
on the fact that Sottoriva was unsuccessful on two of his three claims, a form of “claim
counting” disapproved by the Supreme Court. See Hensley v. Eckerhart, 461 U.S. 424, 435
n.11 (1983). We vacated the fee award and remanded to the district court for a more
thorough explanation.
On remand the district court once again reduced the fee award by 67%, this time
discussing Sottoriva’s partial success in detail. The court noted that Count I (the due‐
process count) was the most important of the three counts, but “Sottoriva lost most of Count
I.” He prevailed on his claim for a hearing before his employer could withhold the back
overpayment from his salary, but his request for a permanent injunction against the
withholding was denied. The court noted that the Department might still withhold the
amounts from his salary; it need only give Sottoriva a hearing before doing so. Finally, the
court explained that Sottoriva’s limited success on Count I foreclosed relief on Count II (for
tax losses), and that Count III (for removal of the Director) had also failed. In summary, the
court concluded that
the limited success on the central claim, Count I, should result in a reduction of the
fee award by more than fifty percent. . . . This very limited success on the primary
claim merits a reduction in fee in the range of 55 to 60 percent. The fee award should
be reduced further by the complete lack of success on Count[s] II and III.
On this analysis, the court once again settled on a 67% reduction of the lodestar fee.
We review fee awards for abuse of discretion. District courts have “wide latitude” to
determine fee awards. Divane v. Krull Elec. Co., 319 F.3d 307, 314 (7th Cir. 2003). We
No. 10‐3937 Page 3
previously held in this case that a reduction in the lodestar fee was appropriate, see Sottoriva,
617 F.3d at 975‐76, so the only issue before us is whether the district court abused its
discretion in choosing on remand to reduce the award by 67%. Where a plaintiff is only
partially successful in his case, the most important factor in determining a reasonable
attorney fee is the degree of success achieved. Hensley, 461 U.S. at 434 (“This factor is
particularly crucial where a plaintiff is deemed ‘prevailing’ even though he succeeded on
only some of his claims for relief.”).
The district court explained in detail its reasoning for again arriving at a 67% fee
reduction on remand, and we see no error in its analysis. Sottoriva sought to permanently
enjoin his employer from withholding any of his wages. He also sought damages for
alleged tax losses he suffered and the removal of his boss from office. He achieved only a
limited injunction entitling him to a hearing before the Department could withhold more
than a certain amount from his salary. The district court was within its discretion to
conclude that a substantial reduction was warranted because Sottoriva lost more than he
won on the most important claim in his case and lost entirely on the remaining two claims.
The 67% reduction was adequately explained on remand, reasonable under the
circumstances, and within the district court’s “wide discretion” to determine fee awards.
See Divane, 319 F.3d at 314.
AFFIRMED.