Lynch v. City of Milwaukee, 83-1859
| Decision Date | 31 October 1984 |
| Docket Number | No. 83-1859,83-1859 |
| Citation | 747 F.2d 423 |
| Parties | William H. LYNCH, Plaintiff-Appellant, v. CITY OF MILWAUKEE, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Thomas E. Bush, Milwaukee, Wis., for plaintiff-appellant.
Rudolph M. Konrad, Asst. City Atty., Milwaukee, Wis., for defendant-appellee.
Before CUMMINGS, Chief Judge, and COFFEY, and FLAUM, Circuit Judges.
Plaintiff appeals from the district court's award of attorney fees in the amount of $1,600.00. Plaintiff, the prevailing party in a Sec. 1983 action, contends that the district court abused its discretion by lowering both the hours and hourly rate claimed by plaintiff's attorney, denying a request for a positive multiplier, and, sua sponte, applying a negative multiplier. We affirm the order of the district court with respect to the first two issues, and we vacate that portion applying a negative multiplier.
The underlying action concerned the City of Milwaukee's practice of placing on the City Hall marquee a notice saying "Keep Christ in Christmas" for at least one day during the month of December each year. The city marquee is in constant use throughout the year, displaying various statements of civic and community interest. Each year from at least 1976 to 1981 an area organization, usually the Archdiocesan Confraternity of Christian Mothers, would request that the message in question be displayed, and each year the Wisconsin Civil Liberties Union would receive several telephone calls objecting to this practice. In December 1981, the director of the Civil Liberties Union informed the city that if religious slogans or messages were to be displayed on the marquee, steps should be taken to disclaim the city's endorsement of those messages. However, the message in question was again displayed with no attribution. Plaintiff--an attorney, an active member of the Civil Liberties Union, and a citizen of the city--requested that the Mayor's office remove the sign. He reports that he was told the statement had no religious context as it was only a suggestion to the public that they write out the full word "Christmas" rather than using the abbreviation "Xmas."
On April 15, 1982, plaintiff brought a civil action based on 42 U.S.C. Sec. 1983, seeking to end the city's practice with respect to the Christmas message on the grounds that such use of city property and funds (for labor) was a violation of the first and fourteenth amendments and an unwarranted entanglement of church and state. Plaintiff sought the following relief: 1) a declaratory judgment that the display violated the Constitution, 2) an injunction ordering the city to refrain from displaying the statement in question or other religious messages without notice that the message was sponsored by some non-governmental group and to establish a policy whereby all religious and non-religious groups would be given equal access to the city marquee for message display, 3) compensatory damages, 4) reasonable attorney fees and costs for maintaining the action, and 5) a preliminary injunction pending trial of the issues. Plaintiff was represented by the same attorney throughout the entire suit.
During August and September 1982, the parties attempted to reach a negotiated settlement. Plaintiff offered to accept the sum of $10.00 in damages and an agreement on the part of the city to display religious messages with attribution, together with reasonable attorney fees which would be determined by the court if necessary. He claims that only the "intransigence" of the city officials prevented a settlement. The city, on the other hand, claims that it was willing from the start to adopt a new policy and that litigation continued only because plaintiff refused to dismiss the action unless costs and attorney fees were paid. In an affidavit, one of the city's attorneys stated that on September 24, 1982, the court indicated in a letter its frustration in having to resolve the case and stated that the only dispute was the issue of damages and attorney fees, noting that "both would be rather minimal." The record does not contain a copy of this letter. Regarding the attempted negotiation, the district court stated in its decision that, although the matter could and should have been resolved by the parties, the materials in the record did not establish that it was plaintiff's fault that negotiations failed.
Plaintiff moved for an injunction and the city moved for summary judgment. A hearing took place and the district court judge announced in court that summary judgment would be denied and plaintiff's motion granted. The parties were instructed to brief the remaining issues of damages and attorney fees.
Plaintiff submitted the following request for attorney fees:
21.5 hours at $60/hr. $1,290.00
(rate charged through 9/30/82)
30.5 hours at $70/hr 2,135.00
(rate charged after 10/1/82) ---------
$3,425.00
25% multiplier 856.25
---------
Total $4,281.25
Although it is not clearly stated, apparently the multiplier was requested because of the importance of the issue and because, according to plaintiff, the city had been so intransigent. Defendant opposed the award of any attorney fees, claiming that plaintiff's refusal to settle was a "special circumstance" making such an award unjust.
The district court's order was issued on April 15, 1983. That order granted the following relief: 1) nominal damages of $1.00, 2) a declaratory judgment dealing only with the "Keep Christ in Christmas" display, 3) a permanent injunction enjoining the city from displaying that message without attribution, and 4) attorney fees in the amount of $1,600.00. The process whereby the district court arrived at the $1,600.00 was announced in a decision issued March 29, 1983 and will be discussed below.
A district court's award of attorney fees will be disturbed only if the court commits an error of law in the computation or if it has abused its discretion in calculating the amount. Chrapliwy v. Uniroyal, Inc., 670 F.2d 760 (7th Cir.1982), cert. denied, 461 U.S. 956, 103 S.Ct. 2428, 77 L.Ed.2d 1315 (1983). As in other contexts, an abuse of discretion occurs only when no reasonable person could take the view adopted by the trial court. Gautreaux v. Chicago Housing Authority, 690 F.2d 601, 613 (7th Cir.1982), cert. denied, 461 U.S. 961, 103 S.Ct. 2438, 77 L.Ed.2d 1322 (1983). The statute, 42 U.S.C. Sec. 1988, does not make an award of attorney fees mandatory, but prevailing parties should ordinarily recover their fees unless special circumstances render the award unjust. Stewart v. Hannon, 675 F.2d 846, 850 (7th Cir.1982). This court has also noted that an award under Sec. 1988 is to be "based on the totality of the case in light of the purpose of the act: 'to permit and encourage plaintiffs to enforce their civil rights.' " Whitley v. Seibel, 676 F.2d 245, 253 (7th Cir.1982), cert. denied, 459 U.S. 942, 103 S.Ct. 254, 74 L.Ed.2d 198 (1982) (quoting Coop v. City of South Bend, 635 F.2d 652, 655 (7th Cir.1980)).
The Supreme Court recently reviewed the considerations that go into determining a Sec. 1988 award of attorney fees. Hensley v. Eckert, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). The initial step is to multiply the number of hours reasonably expended by a reasonable hourly rate. 103 S.Ct. at 1939. The resultant figure, which has often been referred to as the "lodestar" amount, 1 may then be modified upward or downward, depending on the following considerations:
1. the time and labor required;
2. the novelty and difficulty of the questions;
3. the skill requisite to perform the legal service properly;
4. the preclusion of employment by the attorney due to acceptance of this case;
5. the customary fee;
6. whether the fee is fixed or contingent;
7. time limitations imposed by the client or the circumstances;
8. the amount involved and the results obtained;
9. the experience, reputation, and ability of the attorneys;
10. the "undesirability" of the case;
11. the nature and length of the professional relationship with the client; and
12. awards in similar cases.
Hensley v. Eckert, 103 S.Ct. at 1937 n. 3 (citing Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974)).
These factors ("the Johnson factors") may be considered either in setting the initial components (hours and rates) or in determining whether to modify the lodestar figure. 2
In general, the procedure outlined in Hensley accords with this court's discussions of the process of establishing reasonable awards. See Strama v. Peterson, 689 F.2d 661 (7th Cir.1982); Chrapliwy v. Uniroyal, Inc., 670 F.2d 760 (7th Cir.1982). However, certain differences should be noted. This court has typically discussed a list of eight rather than twelve factors. The eight factors were first listed in Waters v. Wisconsin Steel Works of International Harvester Company, 502 F.2d 1309, 1322 (7th Cir.1974), cert. denied, 425 U.S. 997, 96 S.Ct. 2214, 48 L.Ed.2d 823 (1976). The Johnson factors are only slightly different and it is appropriate that we adopt the expanded list cited by the Supreme Court in Hensley. In a more substantive area, we observed in Illinois Welfare Rights Organization v. Miller, 723 F.2d 564 (7th Cir.1983), that Hensley affected this court's previous approach in two respects: it implicitly rejected our position that fees should be awarded only for those specific claims on which the plaintiff prevailed, and it emphasized that considerable attention must be given to the relationship between the extent of success and the amount of the award. Id. at 566-67. (Both of these considerations relate to Factor 8, the amount involved and the results obtained.) 3
The district court calculated its award of...
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