UNITED STATES COURT OF APPEALS
Tenth Circuit
Byron White United States Courthouse
1823 Stout Street
Denver, Colorado 80294
(303) 844-3157
Patrick J. Fisher, Jr. Elisabeth A. Shumaker
Clerk Chief Deputy Clerk
November 13, 1998
TO: ALL RECIPIENTS OF THE OPINION
RE: 96-6399, Robinson v. City of Edmond
Filed on November 6, 1998
Judge Mary Beck Briscoe’s concurring/dissenting opinion filed on November
6, 1998, contains a typographical error. On page four of the concurrence/dissent,
seven lines down from the top of the page, the second sentence of the new paragraph
should read as follows:
Large Firm typically represents major corporate clients in an array of
transactional and litigation matters, including civil rights defense.
A corrected copy of page four of the concurrence/dissent is attached.
Sincerely,
Patrick Fisher, Clerk of Court
By: Keith Nelson
Deputy Clerk
encl.
F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
NOV 6 1998
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
DR. WAYNE ROBINSON, CURTIS
BATTLES, WENDELL MILLER,
BARBARA ORZA, and MARTIN
FELDMAN,
Plaintiffs-Appellants,
v.
CITY OF EDMOND, a municipal
No. 96-6399
corporation, BOB RUDKIN, in his
official capacity as Mayor of the City
of Edmond, CHARLES LAMB, GARY
MOORE, STEVE KNOX, and BARRY
RICE, in their official capacities as
members of the City Council of the
City of Edmond,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. CIV-93-153-R)
Micheal C. Salem, of Salem Law Offices, Norman, Oklahoma (Joel L. Carson, of
Carson & Mueller, Oklahoma City, Oklahoma, with him on the briefs), for the
appellants.
Laura Haag McConnell, of Hartzog Conger & Cason, Oklahoma City, Oklahoma
(Stephen T. Murdock, City Attorney for the City of Edmond, Ryan S. Wilson, of
Hartzog Conger & Cason, and V. Burns Hargis, of McAfee & Taft, Oklahoma
City, Oklahoma, with her on the brief), for the appellees.
Before SEYMOUR, Chief Judge, EBEL and BRISCOE, Circuit Judges.
EBEL, Circuit Judge.
This appeal arises from a significantly reduced award of attorneys fees in a
hard-fought First Amendment case. In this case, by reducing the plaintiffs’ fee
request almost in half, the district court seriously undermined the important
principles at stake in the Civil Rights Attorney’s Fees Awards Act, codified at 42
U.S.C. § 1988 (1994). Because the reasons offered by the district court in support
of its reduction of the fee request are clearly erroneous, we find that the court has
abused its discretion, and we remand for further consideration.
Background
This case has wended its way through the courts for more than five years,
with multiple disputes over attorneys fees. Because of the complexity of the fees
issue here, we must reiterate much of the procedural history of the case even
though the facts of the substantive dispute are fully recounted in our 1995
decision. See Robinson v. City of Edmond, 68 F.3d 1226, 1228 (10th Cir. 1995),
cert. denied, 517 U.S. 1201 (1996).
This litigation began in 1993 when certain residents and business people of
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Edmond, Oklahoma, sued the city and its officials over the city’s use of a Latin
cross in the city’s official seal. Edmond had adopted the seal in 1965 following a
competition sponsored by the city and a local newspaper. After almost a
generation of use of the Latin cross on city vehicles, city flags, city road signs
and city letterheads, the plaintiffs here challenged the city’s official seal on the
grounds that it infringed their free exercise of religion by endorsing and
compelling adherence to the Christian faith and it unconstitutionally established a
religion, both in violation of the First and Fourteenth Amendments. The plaintiffs
also alleged violations of the religious liberty and non-sectarian clauses of the
Oklahoma Constitution, Art. I, § 2 and Art. II, § 5. Bringing suit under 42
U.S.C. § 1983, the plaintiffs sought “nominal actual damages” of at least $25
against each defendant, and declaratory and injunctive relief.
On various motions for summary judgment from the defendants, the district
court dismissed the plaintiffs’ Free Exercise Clause and related state-constitution
claims, as well as the plaintiffs’ claims for damages against the city officials in
their individual capacities. See Robinson, 68 F.3d at 1228. However, the court
scheduled a bench trial for the plaintiffs’ Establishment Clause claim against the
city and its officials. Following a two-day trial, the court ruled in favor of the
defendants, finding that the use of the Latin cross did not violate the
Establishment Clause under the test set forth in Lemon v. Kurtzman, 403 U.S. 602
-3-
(1971). See Robinson, 68 F.3d at 1228.
After the district court’s judgment, the defendants sought reimbursement
from the plaintiffs for the time spent by the city’s three private attorneys –
$117,083 in attorneys’ fees – as well as other costs, under 42 U.S.C. § 1988(b). 1
The district court awarded only a small portion of this request, finding that the
plaintiffs’ Establishment Clause claim and the related Oklahoma Constitution
claim were “not frivolous,” but that the Free Exercise Clause claim was “without
foundation” because the plaintiffs had conceded in their depositions that they
were free to exercise their religion. On the basis of these findings, the district
court awarded the defendants $2,361 in attorneys’ fees incurred in defending
against the Free Exercise claim. 2
The plaintiffs first appealed the district court’s substantive decision on the
Establishment Clause claim, and they subsequently filed a second appeal of the
attorneys’ fees order. The plaintiffs did not appeal the district court’s summary
judgment on the Free Exercise claim or the dismissal of claims against city
leaders in their individual capacities. Both appeals were consolidated in a single
1
The defendants sought reimbursement for 951.15 hours of work by the
three attorneys and a paralegal at Hartzog Conger Cason & Hargis, at varying
rates of $190/hour, $130/hour, and $115/hour.
2
The court awarded reimbursement for 20.1 hours by two attorneys over one
month, work that dealt solely with preparation of the summary judgment motion
on the Free Exercise claim.
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decision, in which we reversed the trial court. See Robinson, 68 F.3d at 1228.
We concluded that under Lemon v. Kurtzman and its progeny, the city’s use of
the Latin cross conveyed a message that a particular religious belief was
preferred. See id. at 1232-33. As a result, we found that the city’s official seal
violated the Establishment Clause. See id. In light of this conclusion, we held
that the plaintiffs were prevailing parties under 42 U.S.C. § 1988(b), and we
remanded the district court’s award of attorneys’ fees for “a redetermination.”
See id. at 1233.
The defendants petitioned for a writ of certiorari, which was denied over a
dissent by Chief Justice Rehnquist, joined by Justices Scalia and Thomas. See
City of Edmond v. Robinson, 517 U.S. 1201 (1996). In his dissent, the Chief
Justice said there was an important circuit split over the question of whether
religious symbols in a municipal seal violated the Establishment Clause. See id.
(Rehnquist, C.J., dissenting). Furthermore, the Chief Justice argued that this case
presented an important question of standing in the context of an Establishment
Clause claim, which the Tenth Circuit’s opinion had not addressed. See id. at
1202-03 (Rehnquist, C.J., dissenting).
On remand, the district court awarded the plaintiffs nominal damages of $1
against each defendant, and the court entered a permanent injunction barring the
use of the Latin cross in the city’s official seal. The plaintiffs also submitted an
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application for their attorney’s fees under 42 U.S.C. § 1988(b). The plaintiffs
requested $186,008.75 in attorney’s fees and $3,150.80 in litigation expenses. 3 In
support of this request, the plaintiffs attached billing records showing that
Michael C. Salem, the plaintiffs’ lead attorney, had discounted his hours by 7.7
percent, leading to a total request for 1,048.4 hours at an hourly rate of $175 per
hour. 4 The plaintiffs also requested reimbursement for nearly 33.85 hours of time
spent by a law clerk in Salem’s office, at $75 per hour.
The defendants generally objected to this fee request as unreasonable, but
they specifically articulated objections to only $43,732.50 of the fee request,
leaving $142,276.25 in requested attorney’s fees not separately contested. In
response to the defendants’ contention that the plaintiffs’ attorney had engaged in
“block-billing,” the plaintiffs submitted the individual time slips for Salem,
recounting the specific tasks he worked on each day and how much time he
allotted to each task.
The district court rendered a total award under § 1988(b) of $105,720.89,
3
The plaintiffs also requested the taxing of $6,766.66 as costs. After the
defendants objected to most of these costs, the clerk of the district court taxed
$4,843.99 against the defendants. Neither party has appealed this decision, and
thus, the amount of taxable costs is not before us.
4
In all, plaintiffs’ attorney discounted 33.5 hours from his time for the fee
request, 15.5 hours from his time for legal research, 14.5 hours from his time for
drafting, 12.9 hours from his time reviewing files and other documents, and 10.8
hours from his time for travel and meeting with clients.
-6-
which was well below the amount the defendants had left uncontested. 5 The court
said it had no doubt that Salem actually had worked all of the hours he claimed,
and the court did not dispute his hourly rate of $175, although the court reduced
the hourly rate of Salem’s legal assistant, Vincent J. Liesenfeld. The court also
found that the plaintiffs’ various claims were “interrelated, . . . nonfrivolous, and
asserted in good faith,” and that the degree of success achieved by the plaintiffs
“was great.” Nevertheless, the court said the plaintiffs’ claim for 1,048.4 hours
was unreasonable in light of the court’s conclusion that this “was a fairly simple,
straightforward lawsuit.” The court added that it felt the amount of hours
expended was excessive because of the plaintiffs’ “only partial success.”
Furthermore, responding to the plaintiffs’ argument that their fee request was
reasonable in comparison to the amount of hours that had been claimed by the
defendants in the defendants’ earlier aborted fee request, the court held that the
alleged hours expended by the defendant were also unreasonable if they were as
large as asserted, and thus, defendants’ hours would not provide support for
plaintiffs’ request. Finally, without any reference to the supplemental filing from
5
The court itemized its award by including 576.62 hours of attorney time, at
$175/hour ($100,908.50), 33.85 hours of law clerk time at $50/hour ($1,692.50),
and $2,760.86 for non-taxable litigation expenses. The total for this itemization
is actually $105,361.86. It is unclear what accounts for the additional $359.03 in
the court’s award. However, none of the parties has raised this apparent
mathematical error.
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the plaintiffs that provided evidence of the detailed billing records for Salem, the
court contended that Salem’s use of “block-billing” had rendered it impossible for
the court “to precisely identify the hours which were excessive and duplicative.”
As a result of these findings, the district court applied an across-the-board cut of
45 percent in the hours claimed by the plaintiffs’ attorney, reducing his
compensation from 1,048.4 hours to 576.62 hours, and it reduced the hourly fee
for the plaintiffs’ law clerk from $75/hour to $50/hour.
The plaintiffs now appeal that portion of the fee award reducing the amount
of hours claimed by the plaintiffs’ lawyer. 6 We reverse and remand.
I. Attorney’s Fees under 42 U.S.C. § 1988(b)
The Civil Rights Attorney’s Fees Awards Act allows a prevailing party in a
civil rights case, including suits brought under 42 U.S.C. § 1983, to seek
reimbursement for his attorney’s fees, to the extent the fees are reasonable. See
42 U.S.C.A. § 1988(b) (West Supp 1998.). 7 Although the power to award such
6
The plaintiffs have not contested the reduction in hourly rate for their law
clerk or the reduction in non-taxable litigation expenses. Therefore, those items
of the fee award are not before us.
7
The relevant text of this statute is as follows,
In any action or proceeding to enforce a provision of
sections 1981, 1981a, 1982, 1983 [etc.] . . . of this
title . . . , the court, in its discretion, may allow the
(continued...)
-8-
fees is discretionary, that discretion is narrow once a civil rights plaintiff
demonstrates that he is a “prevailing party.” See Phelps v. Hamilton, 120 F.3d
1126, 1129 (10th Cir. 1997). The implication of our cases is that when a plaintiff
prevails in a civil rights suit, the plaintiff ordinarily should not have his
vindication of these rights eviscerated by an obligation to pay his attorney’s
reasonable fees.
In light of the discretionary nature of the district court’s decision, we
review an attorney’s fee award under 42 U.S.C. § 1988(b) for an abuse of
discretion. See Phelps, 120 F.3d at 1129. This standard of review applies to both
the court’s decision to award fees in the first place and the court’s determination
of the amount of fees to be awarded. See Joseph A. ex rel. Wolfe v. New Mexico
Dep’t of Human Servs., 28 F.3d 1056, 1058-59 (10th Cir. 1994). Under this
standard, we may reverse a district court’s underlying factual findings only if they
are clearly erroneous, but we review the court’s statutory interpretation or other
legal conclusions de novo. See Jane L. v. Bangerter, 61 F.3d 1505, 1509 (10th
Cir. 1996). Finally, contrary to the defendants’ assertion in this appeal, the
determination of what constitutes a “reasonable” fee amount is not a factual
7
(...continued)
prevailing party, other than the United States, a
reasonable attorney’s fee as part of the costs.
42 U.S.C. § 1988(b).
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finding insulated by the clear-error standard, but rather, the reasonableness
determination is a mixed fact-law application which is itself subject to the general
abuse-of-discretion standard. See id. at 1510 (holding that the abuse-of-discretion
standard applies to a district court’s determination of an attorney’s “reasonable
hours” and “reasonable hourly rate”); Smith v. Freeman, 921 F.2d 1120, 1122
(10th Cir. 1990); Lucero v. City of Trinidad, 815 F.2d 1384, 1386 (10th Cir.
1987); Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1201 (10th Cir. 1986);
Ramos v. Lamm, 713 F.2d 546, 556 (10th Cir. 1983).
In any fee request under § 1988(b), a claimant must prove two elements:
(1) that the claimant was the “prevailing party” in the proceeding; and (2) that the
claimant’s fee request is “reasonable.” See Hensley v. Eckerhart, 461 U.S. 424,
433 (1983); Phelps, 120 F.3d at 1129. In this case, there is no question that the
plaintiffs were the prevailing party – we held as much in our earlier reversal of
the district court’s first decision. See Robinson, 68 F.3d at 1233. Thus, the only
question in this case is whether the plaintiffs established that their fee request was
“reasonable.”
To determine the reasonableness of a fee request, a court must begin by
calculating the so-called “lodestar amount” of a fee, and a claimant is entitled to
the presumption that this lodestar amount reflects a “reasonable” fee. See
Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546,
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563-65 (1986); Cooper v. Utah, 894 F.2d 1169, 1171 (10th Cir. 1990). The
lodestar calculation is the product of the number of attorney hours “reasonably
expended” and a “reasonable hourly rate.” See Hensley, 461 U.S. at 433; Phelps,
120 F.3d at 1131. “Once an applicant for a fee has carried the burden of showing
that the claimed rate and number of hours are reasonable, the resulting product is
presumed to be a reasonable fee as contemplated by Section 1988.” Cooper, 894
F.2d at 1171.
In this appeal, the only issue in contention is the reasonableness of the
hours expended by the plaintiffs’ attorney. This subsidiary reasonableness inquiry
is controlled by the overriding consideration of whether the attorney’s hours were
“necessary” under the circumstances. “The prevailing party must make a ‘good-
faith effort to exclude from a fee request hours that are excessive, redundant, or
otherwise unnecessary.’” Jane L., 61 F.3d at 1510 (quoting Hensley, 461 U.S. at
434)). A district court should approach this reasonableness inquiry “much as a
senior partner in a private law firm would review the reports of subordinate
attorneys when billing clients . . . .” Ramos v. Lamm, 713 F.2d 546, 555 (10th
Cir. 1983). However, “[t]he record ought to assure us that the district court did
not ‘eyeball’ the fee request and cut it down by an arbitrary percentage . . . .”
People Who Care v. Rockford Bd. of Educ., Sch. Dist. No. 205, 90 F.3d 1307,
1314 (7th Cir. 1996) (quotations omitted).
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The Ramos court suggested that among the factors to be considered were
(1) whether the tasks being billed “would normally be billed to a paying client,”
(2) the number of hours spent on each task, (3) “the complexity of the case,” (4)
“the number of reasonable strategies pursued,” (5) “the responses necessitated by
the maneuvering of the other side,” and (6) “potential duplication of services” by
multiple lawyers. Id. at 554. As part of this reasonableness determination, a
district court may discount requested attorney hours if the attorney fails to keep
“meticulous, contemporaneous time records” that reveal “all hours for which
compensation is requested and how those hours were allotted to specific tasks.”
Id. at 553.
In this analysis, we ask what hours a reasonable attorney would have
incurred and billed in the marketplace under similar circumstances. “In other
words the object is to simulate the market where a direct market determination is
infeasible.” Steinlauf v. Continental Illinois Corp., 962 F.2d 566, 572 (7th Cir.
1992). As Congress noted when it enacted the fee-shifting provision in section
1988(b), the purpose behind this measure was not to give private lawyers an
unwarranted windfall, but rather to ensure compensation “adequate to attract
competent counsel.” See S. Rep. No. 94-1011, at 6 (1976), reprinted in 1976
U.S.C.C.A.N. 5908, 5913, quoted in Homeward Bound, Inc. v. Hissom Mem’l
Ctr., 963 F.2d 1352, 1355 (10th Cir. 1992). It goes without saying that if a
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court’s compensation is not adequate to match what the market will bear for a
lawyer’s services, then competent lawyers will go elsewhere to offer their
services. Such a result would do irreparable damage to our system of private
enforcement of federal civil rights.
A. Simplicity of the case.
In the instant case, the district court offered several justifications for its
reduction of the plaintiffs’ fee request, but at oral argument on appeal the
defendants were willing to stand behind only one of those rationales: that this
case was “simple.” At the heart of the district court’s downward adjustment lies
the court’s contention that “[t]his was a fairly simple, straightforward lawsuit.”
The court concluded that nothing about the nature or history of the case “could
reasonably justify the number of hours expended by Plaintiffs’ counsel” because
the case “was virtually a single-issue one.”
The court’s characterization of this case as “fairly simple” seems to derive
in large part from the fact that the plaintiffs’ suit arose out of a single, easily
observed and quickly understood fact – the city was displaying a religious symbol
in its official seal. This single fact, however, generated reams of legal analysis in
a case that highlighted an important circuit split and tempted three Supreme Court
justices to grant certiorari to hear it. See City of Edmond v. Robinson, 517 U.S.
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1201, 1201 (1996) (Rehnquist, C.J., dissenting from denial of certiorari). During
the pre-trial phase of this case, there were three separate motions for summary
judgment as well as a motion to dismiss, each with response briefing. There were
amici briefs from two separate interest groups, the Christian Legal Society of
Oklahoma and Citizens for Keeping the Cross. There were discovery battles that
led to motions to compel production, to strike experts, and to limit testimony,
with response briefing on each. There were depositions of all parties, including a
two-day deposition of the lead plaintiff. And, the trial itself took two full days.
After the initial trial, the plaintiffs had to defend against three separate
applications for attorneys fees filed by the defendants, as well as an application to
tax costs. On appeal, this case focused on a difficult circuit split between the
Fifth and Seventh Circuits on the question of religious symbols in municipal
seals. See Harris v. City of Zion, 927 F.2d 1401 (7th Cir. 1991); Murray v. City
of Austin, 947 F.2d 147 (5th Cir. 1991). Furthermore, there were competing
precedents on the issue within the Tenth Circuit itself. Compare Foremaster v.
City of St. George, 882 F.2d 1485, 1491 (10th Cir. 1989) (holding that it was an
open factual question, which couldn’t be resolved on summary judgment, as to
whether the illustration of the St. George LDS temple in the city’s seal had the
primary effect of endorsing the LDS Church) with Friedman v. Board of County
Comm’rs, 781 F.2d 777, 778, 781-82 (10th Cir. 1985) (holding that the official
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seal of Bernalillo County, with a Latin cross and the Spanish motto “CON ESTA
VENCEMOS,” violated the Establishment Clause). As noted above, the split
between the circuits became part of the basis for a dissent from the Supreme
Court’s denial of certiorari in this case. See Robinson, 517 U.S. at 1201, 1202-03
(1996) (Rehnquist, C.J., dissenting).
This procedural history unequivocally demonstrates that this case was far
from “simple.” It was a case in which thoughtful jurists strongly disagreed.
Besides the central legal issues under the Establishment Clause – an area
notorious for its difficult case law – the case also involved a host of ancillary
issues: individual liability of municipal officials, qualified or absolute immunity
for municipal legislators, standing under Article III for plaintiffs to raise
Establishment Clause claims, scope of Free Exercise rights in the context of
facially non-coercive municipal conduct, attorney-client confidentiality for
engagement letters, and use of experts to gauge public perceptions of religious
symbols.
In this context, the district court’s findings – that the case was “fairly
simple” and that it would have been unreasonable for plaintiffs sole counsel to
have spent anything more than eleven weeks of his time on this case (at 50 hours
a week) from start to finish – are clearly erroneous. Because these findings
undergird the whole of the district court’s decision to reduce the plaintiffs’ fee
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request, the error on these findings requires us to reverse and remand the lower
court’s judgment. We next address briefly the court’s other rationales for its
downward adjustment.
B. Partial success.
Although the district court noted that the plaintiffs had prevailed in their
principal goal of removing the Latin cross from the city’s official seal, the court
nevertheless found that the plaintiffs had “achieved only partial success.” The
court appears to have concluded that it should exclude all of the plaintiffs’
attorney hours associated with three unsuccessful claims: the Free Exercise
Clause claim, the claim for individual-capacity liability against the city officials,
and the claim for actual damages beyond merely nominal damages. This
conclusion, however, is legally indefensible in light of the fact that all of the
unsuccessful claims were intertwined with the successful claims through a
common core of facts or related legal theories.
There is no doubt that a district court may reduce a lodestar calculation on
the grounds that a prevailing party has achieved only partial success. See
Hensley, 461 U.S. at 436-37; Jane L., 61 F.3d at 1510. However, as the Court
noted in Hensley, many civil rights suits involve multiple claims based on “a
common core of facts or . . . related legal theories.” Hensley, 461 U.S. at 435. In
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such cases, it is inappropriate for a district court to evaluate the individual claims
as though they were discrete and severable. Litigants should be given the
breathing room to raise alternative legal grounds without fear that merely raising
an alternative theory will threaten the attorney’s subsequent compensation.
Instead, a court should focus on the “significance of the overall relief” that the
prevailing party has won: “The result is what matters.” Id.
We have applied the teaching of Hensley to reverse a district court’s
reduction of attorney’s fees for a plaintiff who prevailed on a part of her Equal
Pay Act claim but failed on her Title VII claims – the facts supporting the
plaintiff’s unsuccessful claims were part of “one bundle of proof” with the
successful one, and thus the plaintiff’s attorney was “entitled to be fully
compensated.” See Tidwell v. Fort Howard Corp., 989 F.2d 406, 412-13 (10th
Cir. 1993). Similarly, in another case we found that various legal theories offered
by plaintiffs in a challenge against a Utah waiting period for abortions were all
interrelated, and as a result, success on the basis of one theory would require
attorney compensation for all the related theories. See Jane L., 61 F.3d at 1512.
Finally, in one of our most recent attorney’s fees cases, we rejected a Title VII
defendant’s appeal calling for a reduction in a fee award granted to the plaintiff
because we found that the plaintiff’s unsuccessful state-law contract and
emotional distress claims were all “intimately related” to her successful Title VII
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hostile work environment claim. See Smith v. Northwest Fin. Acceptance, Inc.,
129 F.3d 1408, 1418-19 (10th Cir. 1997).
These cases demonstrate that when a plaintiff achieves the principal goal of
her lawsuit, lack of success on some of her interrelated claims may not be used as
a basis for reducing the plaintiff’s fee award. When a plaintiff achieves most or
all of what she aimed for in a civil rights lawsuit, her lawyer should receive “a
fully compensatory fee.” Hensley, 461 U.S. at 435. As the Court said in Hensley,
“the most critical factor is the degree of success obtained.” Id. at 436.
In the instant case, it was clear from the very start of litigation that the
plaintiffs’ principal goal was the removal of the religious emblem from the city’s
seal. The plaintiffs suggested as much in their complaint when their only request
for money damages sought an amount of “not less than $25.00 . . . for nominal
actual damages.” Although it is not entirely clear whether this demand should be
read as requesting actual damages or nominal damages or both, it is clear that
monetary relief was not a principal aim of the suit. As a result, when the
plaintiffs won a permanent injunction requiring the removal of the Latin cross
from Edmond’s official seal, as well as nominal damages of $1 against each
defendant, they won virtually everything that they sought.
Furthermore, those claims that were unsuccessful for the plaintiffs were all
“related” because they involved a common core of facts as well as closely linked
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legal theories. All of the claims in this case arose out of the single fact of the
city’s use of a religious emblem in its official seal, and both the state-
constitutional claims and the First Amendment claims tracked the same body of
law.
There is no doubt that, as the Court said in Hensley, a fee request may be
reduced when some of a plaintiff’s interrelated claims are unsuccessful. See
Hensley, 461 U.S. at 436-37. But, Henlsey made it abundantly clear that failure
on some interrelated claims is not nearly as important a factor as the “overall
relief” obtained by the plaintiff. See id. at 435. As we said in Jane L., when a
plaintiff relies on interrelated claims in support of a single outcome, failure on
some of those claims does not preclude a full recovery when the plaintiff achieves
the outcome that she sought. See Jane L., 61 F.3d at 1512. Hensley establishes
that what matters is the result, and in the instant case, the “result” for the
plaintiffs was complete vindication. In this context, it was legally incorrect for
the district court to reduce the plaintiffs’ fee request on the basis of the plaintiffs’
“only partial success” for their interrelated claims.
C. Comparison with opponent’s attorney hours.
The district court was similarly unpersuaded by the plaintiffs’ attempt to
justify their hours expended by comparing that figure to the number of hours
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expended by the defendants’ lawyers. The court stated that if the defendants
actually had expended anywhere near the number of hours of attorney time as
suggested by the plaintiffs, 8 then the amount of the defendants’ hours was simply
“more unreasonable” and it could not be used to “transmute the amount of time
spent by Plaintiffs’ counsel into something reasonable.”
The Tenth Circuit has long accepted the proposition that one of the factors
useful in evaluating the reasonableness of the number of attorney hours in a fee
request is “the responses necessitated by the maneuvering of the other side.”
Ramos, 713 F.2d at 554. The Supreme Court has also recognized that part of an
attorney’s calculus of the amount of time reasonably necessary for a case is the
vigor which the opponents bring to the dispute. See City of Riverside v. Rivera,
477 U.S. 561, 580 n.11 (1986) (plurality opinion) (“‘The government cannot
litigate tenaciously and then be heard to complain about the time necessarily spent
by the plaintiff in response.’”) (quoting Copeland v. Marshall, 641 F.2d 880, 904
(D.C. Cir. 1980)); see also 2 Mary Francis Derfner & Arthur D. Wolf, Court
8
In their application for a fee award, the plaintiffs pointed out that in the
defendants’ original fee request following the bench trial, the defendants claimed
that their three private attorneys worked 951 hours. The plaintiffs then cited
newspaper accounts of the city’s litigation since the bench trial and estimated that
the city’s private attorneys have worked an additional 700 hours. The plaintiffs
contended that the fact the defendants’ attorneys had spent at least 500 hours
more than their attorney supported their argument that Salem’s time was
reasonable.
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Awarded Attorney Fees, ¶ 16.02[8][b] (1997) (discussing cases that have held
“the vehemence or tenacity of the opposition will justify an increase in the
amount of time an attorney must necessarily – and therefore reasonably – spend
in countering the opposition and winning the suit”).
The evidence of the hours expended by defense counsel is not, of course, an
immutable yardstick of reasonableness, and it may be disregarded or discounted
as a comparative factor if found to be unreasonable in its own right. However,
here the effort expended by the defendants suggests at least that they viewed the
case as sufficiently complex and serious to warrant the expenditure of large
amounts of attorney time, and it highlights the tooth-and-nail litigating approach
the city used in this case. In light of this tenacious effort by the city and its
lawyers, the amount of attorney time expended by the plaintiffs begins to look
more reasonable, not less.
D. Use of “block-billing.”
In its decision, the district court quite appropriately expressed concern
about the use of “block billing” practices. 9 The use of billing practices that
9
The term “block billing” refers to “the time-keeping method by which each
lawyer and legal assistant enters the total daily time spent working on a case,
rather than itemizing the time expended on specific tasks.” Harolds Stores, Inc.
v. Dillard Dep’t Stores, Inc., 82 F.3d 1533, 1554 n.15 (10th Cir.), cert. denied,
(continued...)
- 21 -
camouflage the work a lawyer does naturally and quite correctly raise suspicions
about whether all the work claimed was actually accomplished or whether it was
necessary. This concern is particularly important in a situation where a party is
seeking to have his opponent pay for his own lawyer’s work. As we noted in Jane
L., a district court does not abuse its discretion in reducing a plaintiff’s fee
request when the request is based on time records that are “rather sloppy and
imprecise.” Jane L., 61 F.3d at 1510. We have always required lawyers to keep
“meticulous time records that ‘reveal . . . all hours for which compensation is
requested and how those hours were allotted to specific tasks.’” Id. (quoting
Ramos, 713 F.2d at 553).
In this case, however, the record before us demonstrates that the district
court clearly erred when it found that the plaintiffs’ lawyer had engaged in “block
billing.” In their initial application for attorney’s fees, the plaintiffs submitted
billing statements from their lawyer that itemized what tasks he performed in the
case on each day, with a total amount of time billed for each day. The summaries
of the tasks are quite specific, and they go beyond the kind of imprecision we
criticized in Jane L. It is true, however, that these billing statements do not
allocate the precise amounts of time spent on each particular task during each
9
(...continued)
117 S. Ct. 297 (1996).
- 22 -
individual day. However, in their response to the defendants’ objection to the fee
request, the plaintiffs supplemented these billing statements with copies of the
actual contemporaneous time slips that were the basis of the billing statements.
These time slips do include the specific amounts of time allocated to each
individual task.
On the basis of these records, it is clear that the plaintiffs’ lawyer did not
engage in “block billing.” If the district court is concerned about identifying
certain tasks that it felt were redundant or unnecessary, it had information
sufficient to calculate how much time was spent on those tasks. Thus, the court’s
contention that it was “not possible” to identify which hours were “excessive or
duplicative” 10 is not supported by the record. On the other hand, the district court
10
We do not understand the district court’s reference to “duplicative” time
because there were no other lawyers for whom the plaintiffs submitted a fee
request. The term “duplicative” in the context of attorney’s fees requests usually
refers to situations where more than the necessary number of lawyers are present
for a hearing or proceeding or when multiple lawyers do the same task. See
Ramos, 713 F.2d at 554 (“The more lawyers representing a side of the litigation,
the greater the likelihood will be for duplication of services.”). In a case where
only one lawyer is billing for his time, it is highly improbable that there will be
any “duplication” of services, in this sense of double billing. Instead, the only
kind of “duplication” that might occur would be when the lawyer repeats the same
task unnecessarily. Our own review of the time sheets submitted by the plaintiffs
for their lawyer has failed to reveal any such repetition of unnecessary tasks.
Furthermore, because all the claims here are interrelated and the plaintiffs
secured all the relief they requested, it is not necessary that the court be able to
break down the hours between the various claims. That, of course, will not
always be the case and prudent counsel would therefore be well advised to keep
(continued...)
- 23 -
might properly be concerned about the difficulty of performing a meaningful
analysis given the mass of records submitted to it. On remand, the district court
may quite properly impose on the claimant the burden of organizing or
summarizing the billing records in such a manner as to facilitate judicial review
of the reasonableness of the claim for attorneys’ fees. 11
E. Defendants’ failure to challenge portion of requested fee.
The court’s award dropped the fee request from the $186,008.75 presented
by the plaintiffs, and the $140,316.25 left uncontested by the defendants, to
$105,720.89. The end result was a fee award that was nearly 25 percent below
the unrebutted amount of the plaintiffs’ fee request (and 43 percent below the
original plaintiffs’ request).
10
(...continued)
records reflecting the time that is uniquely allocated to a particular claim if that
claim is distinct and severable from others being asserted.
11
District courts do not necessarily have to “wade through [a litigant’s]
voluminous time records to rescue the compensable time from the sea of non-
compensable time.” In re Central Ice Cream Co. , 836 F.2d 1068, 1074 (7th Cir.
1987). Unfortunately, prevailing attorneys occasionally support the
reasonableness of their fee application by dumping a pile of timesheets on their
adversary and the court for analysis. In such a scenario, the district court is free
to “require the submitting party to organize the time material in a meaningful way
with a comprehensive summary so that the material is understandable and easily
reviewable.” FMC Corp. v. Varonos , 892 F.2d 1308, 1316 (7th Cir. 1990). If the
applicant does not properly respond to the court’s directive, a denial of fees may
be appropriate. Id. at 1317.
- 24 -
Of course, there is no question that a district court may rely on its general
experience as well as its closer familiarity with a case to evaluate the parties’
arguments on a fees issue. See Bee v. Greaves, 910 F.2d 686, 689 (10th Cir.
1990). In this respect, a district court may well decide to go below the amount of
a fee request put in controversy by the parties – in this sense, the court’s
discretion is not absolutely constrained by the amount of a fee request put in
controversy by the parties. But cf. Cunningham v. City of McKeesport, 753 F.2d
262, 267 (3d Cir. 1985) (holding that under the Third Circuit’s approach, a
district court has no reason to disregard uncontested affidavits filed by the fee
applicant when the defendant chose not to put those amounts in controversy),
vacated 478 U.S. 1015 (1986), reinstated after remand, 807 F.2d 49 (3d Cir.
1986). However, the fact that the district court here chose to depart significantly
from the unchallenged portion of the plaintiffs’ fee request, and did so only by
applying a blanket reduction ratio, is a factor to consider in deciding whether the
district court abused its discretion in the magnitude of the cuts ordered.
II. Hearing on fees request
As an independent challenge to the district court’s decision, the plaintiffs
contend that the court abused its discretion by failing to hold an evidentiary
hearing on the attorneys fees issue and then relying on a rationale – i.e. the “fairly
- 25 -
simple” nature of the case – that was not articulated in the defendants’ briefs.
This claim has no merit because the plaintiffs have been unable to point to any
indication in the record that they requested a hearing. Ordinarily, a district court
does not abuse its discretion in deciding not to hold an evidentiary hearing when
no such request is ever made. Furthermore, many courts have long accepted the
proposition that there is no need for an evidentiary hearing in a attorney’s fees
case when a record has been fully developed through briefs, affidavits, and
depositions. See Derfner & Wolf, supra, ¶ 18.06[4][a] (collecting cases).
In this case, the plaintiffs have failed to show that any new information
they would have presented at the hearing would have been critical to the district
court’s consideration. 12 A district court does not abuse its discretion when it fails
to hold a hearing at which the parties will simply reiterate arguments they already
have made in their briefs.
The case relied upon by the plaintiffs for their argument on this point is
inapposite. See Michael A. Cramer, MAI, SPRA, Inc. v. United States, 47 F.3d
379, 380-81 (10th Cir. 1995). The Cramer case involved a decision by a district
court to deny a fee request just three days after the defendant had filed its
12
The only additional evidence the plaintiffs say they would have presented
are copies of the briefs they filed in their appeal and the petition for certiorari.
Beyond this evidence, they suggest only that a hearing would have provided them
an opportunity to explain “the overall reasonableness” of their request.
- 26 -
opposition to the request and before the plaintiff had a chance to respond to the
defendant’s arguments. Id. In that posture, we held that the district court’s
failure to supplement the record was an abuse of discretion. See id. at 384. We
do not have a similar problem in this case because the record the parties created
was quite adequate to resolve the fees issue.
Conclusion
We REVERSE and REMAND. On remand, the district court should
redetermine a reasonable attorney’s fee under 42 U.S.C. § 1988(b) consistent with
this opinion.
- 27 -
No. 96-6399, Robinson v. City of Edmond
BRISCOE, Circuit Judge, concurring and dissenting:
Subject to certain caveats, I concur with the majority that the district court
erred in (1) finding plaintiffs’ attorney engaged in improper “block billing,”and
(2) reducing plaintiffs’ attorney fees based on their “partial success.” I also agree
that the district court properly declined to conduct an evidentiary hearing on
plaintiffs’ attorney fee application. In all other respects, however, I must dissent.
I. Legal Standards
My initial concern with the majority’s opinion is the standard of review it
invokes in reviewing the district court’s award of attorney fees. The majority
correctly observes a district court’s determination of reasonable attorney fees is
reviewed under an abuse of discretion standard and its subsidiary factual findings
will be reversed only if clearly erroneous. See Mares v. Credit Bureau of Raton,
801 F.2d 1197, 1201 (10th Cir. 1986). The majority then suggests, however, that
“the determination of what constitutes a ‘reasonable’ fee amount is not a factual
finding insulated by the clear-error standard, but rather, the reasonableness
determination is a mixed fact-law application which is itself subject to the general
abuse-of-discretion standard.” Majority Op. at 10. This new standard has no
precedential authority and is contrary to the law of this circuit.
Although statutory interpretations and legal conclusions underlying an
attorney fee award are subject to de novo review, Phelps v. Hamilton, 120 F.3d
1126, 1129 (10th Cir. 1997), the assessment of the reasonableness of an attorney
fee request entails no such legal analysis. To the contrary, the reasonableness
inquiry is ordinarily a pure question of fact reviewed for clear error. 1 United
States v. Hardage, 985 F.2d 1427, 1436-37 (10th Cir. 1993); American Ins. Co. v.
El Paso Pipe & Supply Co., 978 F.2d 1185, 1194 (10th Cir. 1992). 2 A district
court’s reasonableness determination, therefore, is “reversible only if it is without
1
The standard by which a district court calculates an attorney fee award, of
course, is an issue of law reviewed de novo. See Beard v. Teska, 31 F.3d 942,
955-57 (10th Cir. 1994) (holding district court’s decision to fashion hourly rate in
amount significantly higher than undisputed prevailing local market rate was a
legal matter subject to de novo review; relevant issue was the proper legal
standard– “prevailing market rate” versus “normal billing rate”--not the mere
reasonableness of the award). Similarly, the district court’s purely discretionary
decisions–e.g., adjusting the loadstar, denying fees altogether for conscience-
shockingly excessive requests, and awarding fees above local market prevailing
rates to non-local counsel determined to be necessary for the case–are reviewed
solely for an abuse of discretion.
Regrettably, we often have taken an analytical shortcut in describing the
standard of review for attorney fee awards. In such cases, we have lumped
together all components of our review into a general abuse of discretion standard.
The cases cited by the majority highlight this deficiency. Nevertheless, assuming
the proper legal standards have been applied, the appropriate manner for
examining a district court’s reasonableness inquiry is to treat the court’s findings
as factual issues and examine them for clear error. See United States v. Hardage,
985 F.2d 1427, 1436-37 (10th Cir. 1993); accord Migis v. Pearle Vision, Inc., 135
F.3d 1041, 1047 (5th Cir. 1998); Dague v. City of Burlington, 976 F.2d 801, 803
(2d Cir. 1991); Leffler v. Meer, 936 F.2d 981, 984-85 (7th Cir. 1991); Black
Grievance Comm. v. Philadelphia Elec. Co., 802 F.2d 648, 652 (3d Cir. 1986),
vacated on other grounds, 483 U.S. 1015 (1987).
2
Although Hardage and El Paso Pipe involved attorney fee awards based
on state law, the standard of appellate review applied to awards made pursuant to
federal fee-shifting statutes is the same.
-2-
factual support in the record, or if the appellate court, after reviewing all the
evidence, is left with the definite and firm conviction that a mistake has been
made.” Hardage, 985 F.2d at 1436-37 (citation omitted). Although judges are not
unanimous in their concepts of reasonableness, the need for uniformity in attorney
fee awards is not so great as to justify “microscopic appellate scrutiny.” Estate of
Borst v. O’Brien, 979 F.2d 511, 514 (7th Cir. 1992); see also Trimper v. City of
Norfolk, 58 F.3d 68, 74-75 (4th Cir. 1995) (appellate court’s role in achieving
uniformity is limited in attorney fee context by need to accord substantial
deference to district court’s factual findings of reasonableness).
The majority articulated the proper legal standard for calculating a
reasonable attorney fee in a statutory fee-shifting context. “[W]e ask what hours
a reasonable attorney would have incurred and billed in the marketplace under
similar circumstances.” Majority Op. at 9. Unfortunately, the majority then
injected a degree of confusion into the mix by theorizing the objective in
calculating the fee “is to simulate the market where a direct market determination
is infeasible.” Id. at 10 (quoting Steinlauf v. Continental Ill. Corp., 962 F.2d 566,
572 (7th Cir. 1992). In Steinlauf, a common fund case in which scores of
attorneys sought reimbursement for fees generated in the pursuit of a securities
class action taken on contingency, the court reasoned that district courts should
“determine what the lawyer would receive if he were selling his services in the
-3-
market rather than being paid by court order.” 962 F.2d at 568. This framework
cannot be employed in a civil rights statutory fee-shifting context. Such a theory
would invite attorneys who normally command fees far in excess of the standard
market rate for civil rights representation to bill at an inordinately high rate.
More importantly, it would deprive district courts of broad discretion to make
reductions for excessive billings. 3
The following hypothetical underscores the problem. Large Firm typically
represents major corporate clients in an array of transactional and litigation
matters, including civil rights defense. Large Firm bills its clients at $250/hour.
Although Large Firm often utilizes “scorched earth” approach in litigation, clients
willingly pay all bills because of the firm’s high success rate. For a variety of
reasons, Large Firm decides to take individual plaintiff’s civil rights case. Large
Firm prevails and seeks, on behalf of its client, $250,000 in attorney fees,
reflecting 1,000 hours of work at $250/hour. Despite the fact that hundreds of
local civil rights attorneys could have performed similar work for half the price in
half the hours, Large Firm arguably would be entitled to its full request under the
Seventh Circuit’s approach inasmuch as the firm’s attorneys are able to command
3
The dilemma is illuminated further by the Seventh Circuit’s apparent
rejection of an abuse of discretion standard of review in favor of a stricter and
more amorphous “deferential standard.” Steinlauf, 962 F.2d at 568.
-4-
such fees in the open market. See Steinlauf, 962 F.2d at 569. That, however, is
not the law in this circuit. As we explained in Beard v. Teska, 31 F.3d 942, 956
(10th Cir. 1994):
[J]ust as lawyers are not fungible, so too legal services are not
fungible. It will be recalled that the legal standard for fee awards is
a prevailing market value test. And for that purpose the relevant
market value is not the price that the particular lawyer chosen may be
paid by willing purchasers of his or her services, but rather the price
that is customarily paid in the community for services like those
involved in the case at hand.
Only a moment’s thought is need[ed] to see why that is so in
the context of fee awards against an adversary. There are of course
different markets for different areas of lawyer’s work. Lawyers who
handle home closings do not bill or receive payment at the same
hourly rate as lawyers who handle major corporate mergers and
acquisitions–even though each may be handling a “purchase.” If the
home buyer chooses to retain a merger specialist because the buyer
wants to take advantage of the latter’s demonstrated negotiating
skills, the buyer of course is free to do so and to pay the higher tariff.
But if and when it comes down to fee shifting–to imposing on the
other side an obligation to pay the lawyer’s fee for a legally
sufficient reason–the higher cost of the merger specialist cannot
properly be thrust on someone who did not, after all, make the
uneconomic choice of counsel.
Fee-shifting statutes entitle prevailing litigants to a “reasonable” 4 attorney fee,
4
The term “reasonable” in the calculation of statutory attorney fees is
problematic. As one district judge recently noted in the hourly rate context, the
phrase
seems to imply that, by definition, any other rate actually charged to
a client is somehow unreasonable or unfair. That, of course, is not
the case. The factors that go into the setting of rates by attorneys are
likely to differ based on numerous considerations, and private parties
are certainly entitled to strike whatever bargain on rates that proves
(continued...)
-5-
sufficiently “adequate to attract competent counsel.” Homeward Bound, Inc. v.
Hissom Mem’l Ctr., 963 F.2d 1352, 1355 (10th Cir. 1992) (emphasis added).
Such statutes do not permit an award of fees charged by “the best attorneys that
money can buy” if those rates exceed the prevailing market rate for similar
services.
The majority’s reasoning might ring truer if this case involved a contract-
based attorney fee award. Such awards are designed to make prevailing parties
whole and the district court’s role in scrutinizing the fee application is far more
confined than in the statutory fee-shifting context. See United States ex rel.
C.J.C., Inc. v. Western States Mechanical Contractors, Inc., 834 F.2d 1533, 1547-
48 (10th Cir. 1987). The Supreme Court has pointed out the striking contrast by
holding fee-shifting statutes:
were not designed as a form of economic relief to improve the
financial lot of attorneys, nor were they intended to replicate exactly
the fee an attorney could earn through a private fee arrangement with
his client. Instead, the aim of such statutes was to enable private
parties to obtain legal help in seeking redress for injuries resulting
from the actual or threatened violation of specific federal laws.
Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546,
4
(...continued)
mutually agreeable. Perhaps a different term, such as ‘prevailing’
hourly rate or ‘market norm’ should be employed.
Medlock v. Ortho Biotech, Inc., 1997 WL 51216, at *2 n.3 (D. Kan. 1997). I
agree and use the word “reasonable” only within its customary meaning as a term
of art and not as a criticism of an attorney’s billing practices.
-6-
565 (1986).
II. Specific Components of Award
Partial Success
The district court’s opinion is ambiguous with respect to the role plaintiffs’
degree of success played in the ultimate attorney fee award. At one point, the
district court notes plaintiffs achieved only partial success because they failed to
show a violation of their rights under the Free Exercise Clause of the First
Amendment and recovered only nominal damages. Appellants’ Br., Ex. A. at 3.
Yet later, the court describes plaintiffs’ success as “great.” Id. at 4. In reducing
plaintiffs’ attorney’s requested hours, the court then states its reductions reflect
time “not reasonably necessary and thus . . . not reasonably expended on [the]
litigation.” Id. at 6.
If, as the majority interprets the preceding statements, the district court
decreased plaintiffs’ reimbursable hours based on their failure to prevail on the
Free Exercise claim and recover more than nominal damages, the court abused its
discretion. This case was not about money. Plaintiffs had one primary goal in
bringing suit: forcing the City of Edmond to remove the Latin cross from its
official seal. Plaintiffs were fully successful in that endeavor. The fact that
plaintiffs achieved this result pursuant to their Establishment Clause claim rather
than their alternative Free Exercise claim is irrelevant for fee purposes. A “fee
-7-
award should not be reduced simply because the plaintiff failed to prevail on
every contention raised in the lawsuit.” Hensley v. Eckerhart, 461 U.S. 424, 435
(1983).
If, on the other hand, the district court reduced plaintiffs’ attorney fees
solely as a result of their excessive request, there was no abuse of discretion.
This ambiguity highlights why it is so essential that district courts articulate
specific reasons for fee awards to give us an adequate basis for review. See
Ramos v. Lamm, 713 F.2d 546, 552 (10th Cir. 1983). On remand, the district
court should make clear the specific reasons for its reductions in plaintiffs’
attorney fee application.
Simplicity of case
In articulating its rationale for rejecting the attorney fee award here, the
majority focuses primarily on its disagreement with the district court’s
characterization of this case as a “fairly simple, straightforward lawsuit.”
Although the constitutional issues raised in this action may rest outside the
expertise of many practitioners, it is not “clear error” to classify the case as
“fairly simple.”
The discovery disputes the majority considers pivotal to the difficulty of
the case involve three motions by defendants: a motion to compel one piece of
-8-
correspondence, a motion to strike experts based on plaintiffs’ failure to adhere to
the court’s scheduling order, and a motion in limine to exclude all testimony
relating to settlement and compromise negotiations. These pleadings represented
standard pretrial maneuvering. Indeed, the fact that the parties filed only three
non-dispositive pretrial motions is, if anything, evidence of the simplicity of the
case. Further, the litigants’ decision to depose every named party in preparation
for the two-day trial hardly suggests the lawsuit was atypical or particularly
complex.
The majority also attaches considerable significance to the “reams of legal
analysis” generated in the case. Some perspective, however, is necessary. First,
it appears defendants filed a motion to dismiss all individual capacity claims
based on qualified immunity (which was granted) and each side filed a single
summary judgment motion on the merits. 5 Plaintiffs’ motion contained only
fifteen pages of argument. Second, although two special interest groups–the
Christian Legal Society of Oklahoma and Citizens for Keeping the Cross–opted to
file amicus briefs, their presence does not speak to the difficulty of the case; it
indicates only that they sought to influence the court’s opinion. Third, the
“difficult” ancillary issues the majority identifies either were not raised by the
5
Plaintiffs submitted one summary judgment motion on March 15, 1994,
and a second motion on March 29, 1994. They include only the March 29 motion
in their appendix, leading me to believe the latter superseded the former.
-9-
litigants (e.g., Article III standing for Establishment Clause claims), had no merit
(e.g., plaintiffs’ objections to defendants’ qualified immunity defenses), or
played, at best, a de minimis role in the case (e.g., attorney-client privilege). 6
Finally, the fact that “thoughtful jurists strongly disagreed” over the proper
outcome of the litigation does not, ipso facto, mean the case was complex. The
district court observed the “case was virtually a single-issue one, as to whether
the average observer, when viewing the seal in question, would perceive it as
conveying or attempting to convey primarily a message of endorsing Christianity,
or that Christianity is favored or preferred.” Appellants’ Br., Ex. A at 5 n.2. This
observation is not clearly erroneous. Just as reasonable minds may differ on the
outcome of a horse race, so too may appellate courts diverge on their beliefs as to
the message conveyed by a religious symbol. Chief Justice Rehnquist’s dissent
from the Supreme Court’s denial of defendants’ certiorari petition reflected his
desire to create national uniformity on this issue. See City of Edmond v.
Robinson, 517 U.S. 1201 (1996). His dissent is not a testament to the complexity
6
The majority states one particularly difficult issue raised in the case was
the propriety of the “use of experts to gauge public perceptions of religious
symbols.” Majority Op. at 15. Nowhere does the record reflect any litigant
advanced this matter. I can only assume the majority predicates this statement on
defendants’ motion to strike plaintiffs’ experts, a motion not included in the
record on appeal. The docket sheet suggests, however, that defendants filed that
motion based on plaintiffs’ failure to follow the court’s scheduling order.
- 10 -
of the case. 7
Even assuming, arguendo, this case was complex, the district court did not
err in classifying plaintiffs’ fee application as unreasonable. Defendants liken
plaintiffs’ litigation strategy to “using an atom bomb to kill a fly.” Appellees’ Br.
at 9. I agree. Plaintiff’s attorney appears to have exercised no billing judgment
in his fee application. See Ramos, 713 F.2d at 553 (court must distinguish “raw”
time from “billable” time because “it does not follow that the amount of time
actually expended is the amount of time reasonably expended”). Moreover, the
pleadings included in the record on appeal are replete with prolix and repetitious
arguments as well as innumerable extraneous materials. In the attorney fee
context, there is a fundamental difference between advocacy and overkill.
Plaintiffs clearly crossed that line.
Comparison of billings and defendants’ failure to
challenge portions of plaintiffs’ fee application
The majority criticizes the district court for failing to take into account the
billings of defendants’ attorneys in calculating plaintiffs’ fee award. We have
held that “[i]n determining what is a reasonable time in which to perform a given
task or to prosecute the litigation as a whole, the court should consider that what
Nor is the fact that we remanded the case to the district court on the merits
7
dispositive. Procedural machinations seldom provide a window into the
simplicity or difficulty of a lawsuit.
- 11 -
is reasonable in a particular case can depend upon factors such as . . . the
responses necessitated by the maneuvering of the other side.” Ramos, 713 F.2d at
554. The majority acknowledges “the hours expended by defense counsel is not .
. . an immutable yardstick of reasonableness” and “may be disregarded or
discounted as a comparative factor if found to be unreasonable.” Majority Op. at
21. In the next sentence, however, the majority implies “the tooth-and-nail
litigating approach [defendants] used in this case” necessitates a comparison to
defendants’ attorneys’ work. (Id.).
The majority has substituted its own discretion for that of the district court.
The district court specifically remarked in its attorney fee order that “Defendants’
reliance on the historical significance of the cross and other features of the seal in
defense of Plaintiffs’ Establishment Clause claim did complicate and protract the
litigation.” Appellants’ Br., Ex. A at 5. There is nothing in the record to suggest
the district court neglected to compensate plaintiffs’ attorney for time spent
opposing such matters. But the mere fact that one party’s attorney bills for an
unreasonable number of hours does not a fortiori mean his adversary’s attorney
can expect to be reimbursed for doing the same. As we recently pointed out in
Case v. Unified Sch. Dist. No. 233, 1998 WL 714055, at *6 (10th Cir. Oct. 13,
1998), “[t]o hold otherwise would allow two law firms which, although
adversaries in the proceeding, were in agreement in their use of unreasonable
- 12 -
billing practices, to force the district court to award compensation it found
unreasonable.”
Handcuffing a court from reducing a fee award below a level to which the
non-prevailing party has specifically raised objections invites the same type of
collusion and excesses. As long as the district court provides an adequate
explanation for its calculations, see Mares, 801 F.2d at 1202-03 (describing level
of detail required), a comparison between the court’s award and the non-
prevailing party’s billings is irrelevant.
III.
The only basis for remanding this case to the district court is to secure a
clarification of the degree of reductions made for plaintiffs’ limited success and
improper block billing. 8 I fear the scrutiny imposed by the majority in this appeal
will foster the exact type of distasteful attorney fee disputes against which both
the Supreme Court and the Tenth Circuit have counseled. See Hensley, 461 U.S.
at 437; Mares, 801 F.2d at 1203. The broad discretion of district courts in
fashioning attorney fee awards must be respected less we turn every attorney fee
8
The majority has given the district court virtually no guidance on how to
handle the case on remand. Short of awarding plaintiffs their full fee request, it is
not clear what the district court is to do. I would suggest the district court
provide a detailed and specific explanation of any aspect of plaintiffs’ attorney
fee application it finds unreasonable and calculate an award based on those
findings.
- 13 -
motion into a “second major litigation.” Hensley, 461 U.S. at 437. Because I do
not believe the majority opinion is faithful to this principle, I respectfully dissent.
- 14 -