William H. Lynch v. City of Milwaukee

COFFEY,' Circuit Judge,

concurring in part, dissenting in part.

The sole issue on this appeal is whether the district court judge abused his discretion in awarding $1,600 in attorney’s fees. I agree with the majority’s analysis in section III that the reduction in hours from 52 to 40 at the rate of $60 an hour does not constitute an abuse of discretion. Moreover, in light of the factual and legal simplicity of this case, I agree with the majority’s conclusion in section IV that the district court judge properly denied the plaintiff’s 25% positive multiplier. I dissent, however, from the majority’s erroneous analysis in section V that it was reversible error for the district court judge to apply a 33V3% negative multiplier “[i]n view of the nominal award here.”

The facts and applicable law in this case are remarkably simple. The City of Milwaukee has a well-established tradition of displaying statements of civic and community interest on the marquee attached to the front of the City Hall, above the main entrance. Each year, in mid-December, the Milwaukee Roman Catholic Archdiocese and the Confraternity of Christian Mothers request that the phrase “Keep Christ in Christmas” be displayed. Each year the City complies with the organization’s request and displays the phrase for a one or two day period. On April 15, 1982, the plaintiff, William Lynch, filed a lawsuit under 42 U.S.C. §§ 1983, 1988, seeking a permanent injunction to prevent public display of the phrase “Keep Christ in Christmas” unless accompanied by notice of the nongovernmental sponsor. During August and September of 1982, Lynch and the City *431attempted to settle their squabble but were unable to resolve the issue of attorney’s fees. Both parties moved for summary judgment, and following oral arguments on December 3, 1982, the district court judge ruled that “the posting of the message in December of 1981 violated the Plaintiff’s First Amendment rights.” Accordingly, the district court judge enjoined the City of Milwaukee from displaying the phrase “Keep Christ in Christmas” unless it was accompanied by an attribution clause. The judge instructed the parties to submit additional briefs on the issue of damages and attorney’s fees.

On December 21, 1982, Lynch filed a letter and supporting affidavits claiming $10 in damages and $4,281.25 in attorney’s fees, including 21.5 hours at $70 per hour, 30.5 hours at $60 per hour, and a 25% multiplier. Some three, months later, on March 29, 1983, the district court judge awarded one dollar in nominal damages, realizing that any injury to Lynch was “ideological rather than the kind for which actual damages are generally awarded.” On the issue of attorney’s fees, the district court judge concluded that 40 hours at $60 an hour was a reasonable amount and that the 25% multiplier was improper because there was “nothing factually or legally complex about this case.... ” The judge added that “[i]n view of the nominal award here, the Court will apply a negative multiplier of one-third.” Thus, the district court judge awarded Lynch $1,600 in attorney’s fees.

I hasten to note that the district court judge issued his order awarding attorney’s fees on March 29, 1983, some two months before the Supreme Court’s decision in Hensley v. Eckerhart, 103 S.Ct. 1933 (1983) (“Hensley ”) and some nine months before this court’s decision in Illinois Welfare Rights Organization v. Miller, 723 F.2d 564 (7th Cir.1983) (“Miller”). In Hensley the Supreme Court clarified the factors to be considered by the district court when determining an award of attorney’s fees under section 1988. Specifically, the Court stated that “[t]he product of reasonable hours times a reasonable rate does not end the inquiry. There remain other considerations that may lead the district court to adjust the fee upward or downward, including the important factor of the ‘results obtained. ’ ” Hensley, 103 S.Ct. at 1940 (emphasis added).1 In Miller 'this court readily acknowledged that “Hensley affects previous approaches to [section 1988] attorney’s fees awards adopted in this circuit in two significant respects.” Miller, 723 F.2d at 566. One of those aspects is that “Hensley emphasizes that courts must give considerable attention to the relationship between the extent of the plaintiff’s success and the amount of the fee award.” Id. at 567. See also Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1281 (7th Cir.1983). In the instant case, the record reveals that the district court judge did, in fact, give considerable attention to the relationship between Lynch’s success and the amount of the attorney’s fee award. Unfortunately, the Supreme Court’s decision in Hensley and this court’s decision in Miller were not available to the district court judge at the time of his March 29, 1983 order, and thus the judge was unable to apply the relevant analysis set forth in those cases.

The district court judge realized that the present case involves a straightforward, non-complex legal issue; whether the phrase “Keep Christ in Christmas” attached to the front of Milwaukee’s City Hall above the main entrance, without reference to the non-governmental sponsoring organization, violates the Establishment Clause of the First Amendment. According to the judge, there was “nothing factually or legally complex about this case [and] ... [t]here certainly were no great *432time limitations placed on plaintiffs counsel.” As a result of this non-complex legal issue and the simple “ideological” injury involved, the district court judge awarded Lynch a single dollar in nominal damages. In light of this nominal damage award, the judge then applied a 33Vs% “negative multiplier” to the attorney fee award. The majority boldly asserts that “[i]t was error for the district court to reduce the § 1988 award of attorney fees because damages were nominal.” I disagree. A close scrutiny of the record reveals that the nominal damages awarded in this case are symbolic of the simplicity of Lynch’s claim, the strictly “ideological” nature of Lynch’s injury, and the virtual absence of any impact resulting from Lynch’s, “success” on the merits. In short, Lynch has simply succeeded in requiring the City of Milwaukee to display the phrase “Keep Christ in Christmas” with an attribution clause. According to this court’s reasoning in Henry v. Webermeier, 738 F.2d 188, 194 (7th Cir.1984), the district court judge is fully justified in reducing the attorney’s fee award in such a “simple case.”

There is no question that the term “negative multiplier” is a poor choice of words to use when reducing an award of attorney’s fees under section 1988. Nonetheless, in the present case, the term appears to convey the simplicity of the legal issue involved and the lack of any substantial impact resulting from Lynch’s “success.” According to Hensley and its progeny, it is this very relationship between the extent of Lynch’s success and the amount of the attorney’s fee award that is to be given considerable attention. Even though Hensley altered the analysis used in this circuit to determine section 1988 attorney’s fee awards and was not decided until some two months after the instant case, the district court judge’s opinion appears to comply with the spirit of the law set forth in Hensley. In light of this fact, I would remand the case and allow the judge to make findings that also comply with the letter of the law set forth in Hensley.

. In March of 1984, the Supreme Court reaffirmed the analysis set forth in Hensley. The Court stated in Blum v. Stenson, — U.S. -, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984), that section 1988 "requires a ‘reasonable fee,’ and there may be circumstances in which the basic standard of reasonable rates multiplied by reasonably expended hours results in a fee that is either unreasonably low or unreasonably high." 104 S.Ct. at 1548.