Robinson v. City of Edmond

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

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(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.

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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 -