### 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 opi nion filed on November 6, 1998, contains a typographical error. On page f our of the concurrence/dissent, seven lines down from the top of the page, the seco nd sentence of the new paragraph should read as follows: Large Firm typically represents major corporate cli ents in an array of transactional and litigation matters, including civil rights defense. A corrected copy of page four of the concurrence/di ssent 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 

### NOV 6 1998 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DR. WAYNE ROBINSON, CURTIS BATTLES, WENDELL MILLER, BARBARA ORZA, and MARTIN FELDMAN, Plaintiffs-Appellants, v. CITY OF EDMOND, a municipal 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. No. 96-6399

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, Okl ahoma (Joel L. Carson, of Carson & Mueller, Oklahoma City, Oklahoma, with himon the briefs), for the appellants. Laura Haag McConnell, of Hartzog Conger & Cason, Ok lahoma City, Oklahoma (Stephen T. Murdock, City Attorney for the City of Edmond, Ryan S. Wilson, of Hartzog Conger & Cason, and V. Burns Hargis, of McA fee & Taft, Oklahoma City, Oklahoma, with her on the brief), for the app ellees.- 2 -

Before SEYMOUR, Chief Judge, EBEL and BRISCOE , Circuit Judges.

EBEL , Circuit Judge.

This appeal arises from a significantly reduced awa rd of attorneys fees in a hard-fought First Amendment case. In this case, byreducing the plaintiffs’ fee request almost in half, the district court seriousl y 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 err oneous, we find that the court has abused its discretion, and we remand for further co nsideration.

Background This case has wended its way through the courts formore than five years, with multiple disputes over attorneys fees. Becaus e of the complexity of the fees issue here, we must reiterate much of the procedura l history of the case even though the facts of the substantive dispute are ful ly 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 resident s and business people of- 3 -

Edmond, Oklahoma, sued the city and its officials o ver the city’s use of a Latin cross in the city’s official seal. Edmond had adop ted the seal in 1965 following a competition sponsored by the city and a local newsp aper. After almost a generation of use of the Latin cross on city vehicl es, city flags, city road signs and city letterheads, the plaintiffs here challenge d the city’s official seal on the grounds that it infringed their free exercise of re ligion by endorsing and compelling adherence to the Christian faith and it unconstitutionally established a religion, both in violation of the First and Fourte enth Amendments. The plaintiffs also alleged violations of the religious liberty an d 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 actua l damages” of at least $25 against each defendant, and declaratory and injunct ive relief. On various motions for summary judgment from the de fendants, the district court dismissed the plaintiffs’ Free Exercise Claus e and related state-constitution claims, as well as the plaintiffs’ claims for damag es 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’ Establi shment 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 Le mon v. Kurtzman , 403 U.S. 6021 The defendants sought reimbursement for 951.15 hour s of work by the

three attorneys and a paralegal at Hartzog Conger C ason & 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 t he summary judgment motion on the Free Exercise claim. - 4 - (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 cost s, 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 Exerc ise 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’ f ees 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 f iled a second appeal of the attorneys’ fees order. The plaintiffs did not appe al the district court’s summary judgment on the Free Exercise claim or the dismissa l of claims against city leaders in their individual capacities. Both appea ls were consolidated in a single- 5 -

decision, in which we reversed the trial court. Se e Robinson , 68 F.3d at 1228. We concluded that under Lemon v. Kurtzmanand its progeny, the city’s use of the Latin cross conveyed a message that a particula r 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 4 2 U.S.C. § 1988(b), and we remanded the district court’s award of attorneys’ f ees 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 Justi ces 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 o ver the question of whether religious symbols in a municipal seal violated the Establishment Clause. See id. (Rehnquist, C.J., dissenting). Furthermore, the Ch ief 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 plaintiff s nominal damages of $1 against each defendant, and the court entered a per manent injunction barring the use of the Latin cross in the city’s official seal. The plaintiffs also submitted an3 The plaintiffs also requested the taxing of $6,766 .66 as costs. After the

defendants objected to most of these costs, the cle rk of the district court taxed $4,843.99 against the defendants. Neither party ha s 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 researc h, 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 cli ents. - 6 - 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 bi lling records showing that Michael C. Salem, the plaintiffs’ lead attorney, ha d discounted his hours by 7.7 percent, leading to a total request for 1,048.4 hou rs at an hourly rate of $175 per hour. 4 The plaintiffs also requested reimbursement for n early 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 reque st as unreasonable, but they specifically articulated objections to only $4 3,732.50 of the fee request, leaving $142,276.25 in requested attorney’s fees no t separately contested. In response to the defendants’ contention that the pla intiffs’ attorney had engaged in “block-billing,” the plaintiffs submitted the indiv idual time slips for Salem, recounting the specific tasks he worked on each dayand how much time he allotted to each task. The district court rendered a total award under § 1 988(b) of $105,720.89,5 The court itemized its award by including 576.62 ho urs of attorney time, at

$175/hour ($100,908.50), 33.85 hours of law clerk t ime 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 accoun ts for the additional $359.03 in the court’s award. However, none of the parties ha s raised this apparent mathematical error. - 7 - 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 $1 75, although the court reduced the hourly rate of Salem’s legal assistant, VincentJ. Liesenfeld. The court also found that the plaintiffs’ various claims were “int errelated, . . . nonfrivolous, and asserted in good faith,” and that the degree of suc cess achieved by the plaintiffs “was great.” Nevertheless, the court said the plai ntiffs’ claim for 1,048.4 hours was unreasonable in light of the court’s conclusionthat 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’ argumentthat 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 r equest, the court held that the alleged hours expended by the defendant were also u nreasonable if they were as large as asserted, and thus, defendants’ hours woul d not provide support for plaintiffs’ request. Finally, without any referenc e to the supplemental filing from6 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 th is title . . . , the court, in its discretion, may all ow the (continued...) - 8 - the plaintiffs that provided evidence of the detail ed 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 we re 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, an d 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.). 7Although the power to award such7 (...continued) prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs. 42 U.S.C. § 1988(b). - 9 - fees is discretionary, that discretion is narrow on ce 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 ou r cases is that when a plaintiff prevails in a civil rights suit, the plaintiff ordi narily should not have his vindication of these rights eviscerated by an oblig ation to pay his attorney’s reasonable fees. In light of the discretionary nature of the distric t court’s decision, we review an attorney’s fee award under 42 U.S.C. § 19 88(b) for an abuse of discretion. See Phelps , 120 F.3d at 1129. This standard of review applie s to both the court’s decision to award fees in the first pla ce 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 th is standard, we may reverse a district court’s underly ing factual findings only if they are clearly erroneous, but we review the court’s st atutory 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’ a ssertion in this appeal, the determination of what constitutes a “reasonable” fe e amount is not a factual- 10 -

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 determinatio n of an attorney’s “reasonable hours” and “reasonable hourly rate”); Smith v. Free man , 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 mustprove 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 ques tion that the plaintiffs were the prevailing party – we held as m uch 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 est ablished that their fee request was “reasonable.” To determine the reasonableness of a fee request, acourt must begin by calculating the so-called “lodestar amount” of a fe e, and a claimant is entitled to the presumption that this lodestar amount reflects a “reasonable” fee. See Pennsylvania v. Delaware Valley Citizens’ Council f or Clean Air , 478 U.S. 546,- 11 -

563-65 (1986); Cooper v. Utah , 894 F.2d 1169, 1171 (10th Cir. 1990). The lodestar calculation is the product of the number o f 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 reaso nable, 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 s ubsidiary reasonableness inquiry is controlled by the overriding consideration of wh ether the attorney’s hours were “necessary” under the circumstances. “The prevaili ng party must make a ‘goodfaith effort to exclude from a fee request hours th at 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 reaso nableness inquiry “much as a senior partner in a private law firm would review t he reports of subordinate attorneys when billing clients . . . .” Ramos v. L amm , 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).- 12 -

The Ramos court suggested that among the factors to be consi dered 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) “th e complexity of the case,” (4) “the number of reasonable strategies pursued,” (5) “the responses necessitated by the maneuvering of the other side,” and (6) “potent ial duplication of services” by multiple lawyers. Id. at 554. As part of this reasonableness determinat ion, a district court may discount requested attorney hour s if the attorney fails to keep “meticulous, contemporaneous time records” that rev eal “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 simila r 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-s hifting 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 in1976 U.S.C.C.A.N. 5908, 5913, quoted inHomeward Bound, Inc. v. Hissom Mem’l
Ctr. , 963 F.2d 1352, 1355 (10th Cir. 1992). It goes wi thout saying that if a- 13 -

court’s compensation is not adequate to match what the market will bear for a lawyer’s services, then competent lawyers will go e lsewhere to offer their services. Such a result would do irreparable damag e to our system of private enforcement of federal civil rights.

A. Simplicity of the case. In the instant case, the district court offered sev eral justifications for its reduction of the plaintiffs’ fee request, but at or al 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 c ourt’s downward adjustment lies the court’s contention that “[t]his was a fairly si mple, straightforward lawsuit.” The court concluded that nothing about the nature o r 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 “fairl y simple” seems to derive in large part from the fact that the plaintiffs’ su it 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, g enerated 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.- 14 -

1201, 1201 (1996) (Rehnquist, C.J., dissenting fromdenial 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 expe rts, and to limit testimony, with response briefing on each. There were deposit ions 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 defe nd against three separate applications for attorneys fees filed by the defend ants, as well as an application to tax costs. On appeal, this case focused on a diffi cult circuit split between the Fifth and Seventh Circuits on the question of relig ious 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 it self. 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 o n summary judgment, as to whether the illustration of the St. George LDS temp le in the city’s seal had the primary effect of endorsing the LDS Church) withFriedman v. Board of County
Comm’rs , 781 F.2d 777, 778, 781-82 (10th Cir. 1985) (holdi ng that the official- 15 -

seal of Bernalillo County, with a Latin cross and t he Spanish motto “CON ESTA VENCEMOS,” violated the Establishment Clause). As noted above, the split between the circuits became part of the basis for adissent 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 j urists strongly disagreed. Besides the central legal issues under the Establis hment Clause – an area notorious for its difficult case law – the case als o involved a host of ancillary issues: individual liability of municipal officials , qualified or absolute immunity for municipal legislators, standing under Article I II for plaintiffs to raise Establishment Clause claims, scope of Free Exercise rights in the context of facially non-coercive municipal conduct, attorney-c lient confidentiality for engagement letters, and use of experts to gauge pub lic perceptions of religious symbols. In this context, the district court’s findings – th at the case was “fairly simple” and that it would have been unreasonable fo r plaintiffs sole counsel to have spent anything more than eleven weeks of his t ime on this case (at 50 hours a week) from start to finish – are clearly erroneou s. Because these findings undergird the whole of the district court’s decisio n to reduce the plaintiffs’ fee- 16 -

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 plaintif fs 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 “achieve d only partial success.” The court appears to have concluded that it should excl ude all of the plaintiffs’ attorney hours associated with three unsuccessful c laims: the Free Exercise Clause claim, the claim for individual-capacity lia bility against the city officials, and the claim for actual damages beyond merely nomi nal damages. This conclusion, however, is legally indefensible in lig ht of the fact that all of the unsuccessful claims were intertwined with the succe ssful 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 on ly 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 b ased on “a common core of facts or . . . related legal theorie s.” Hensley , 461 U.S. at 435. In- 17 -

such cases, it is inappropriate for a district court to evaluate the individual claims as though they were discrete and severable. Litiga nts should be given the breathing room to raise alternative legal grounds w ithout 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 matte rs.” Id. We have applied the teaching of Hensleyto reverse a district court’s reduction of attorney’s fees for a plaintiff who pr evailed 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 b undle of proof” with the successful one, and thus the plaintiff’s attorney w as “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 th at 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- 18 -

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 achie ves the principal goal of her lawsuit, lack of success on some of her interre lated claims may not be used as a basis for reducing the plaintiff’s fee award. Wh en 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 sta rt of litigation that the plaintiffs’ principal goal was the removal of the r eligious emblem from the city’s seal. The plaintiffs suggested as much in their co mplaint 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 clearwhether this demand should be read as requesting actual damages or nominal damage s 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 dam ages of $1 against each defendant, they won virtually everything that they sought. Furthermore, those claims that were unsuccessful fo r the plaintiffs were all “related” because they involved a common core of fa cts as well as closely linked- 19 -

legal theories. All of the claims in this case aro se out of the single fact of the city’s use of a religious emblem in its official se al, and both the stateconstitutional claims and the First Amendment claim s tracked the same body of law. There is no doubt that, as the Court said in Hensle y , a fee request may be reduced when some of a plaintiff’s interrelated cla ims are unsuccessful. See Hensley , 461 U.S. at 436-37. But, Henlseymade it abundantly clear that failure on some interrelated claims is not nearly as import ant 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 recov ery when the plaintiff achieves the outcome that she sought. See Jane L. , 61 F.3d at 1512. Hensleyestablishes that what matters is the result, and in the instantcase, the “result” for the plaintiffs was complete vindication. In this conte xt, it was legally incorrect for the district court to reduce the plaintiffs’ fee re quest on the basis of the plaintiffs’ “only partial success” for their interrelated claim s.

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 figu re to the number of hours8 In their application for a fee award, the plaintiff s pointed out that in the defendants’ original fee request following the benc h trial, the defendants claimed that their three private attorneys worked 951 hours . The plaintiffs then cited newspaper accounts of the city’s litigation since t he bench trial and estimated that the city’s private attorneys have worked an additio nal 700 hours. The plaintiffs contended that the fact the defendants’ attorneys h ad spent at least 500 hours more than their attorney supported their argument t hat Salem’s time was reasonable. - 20 - expended by the defendants’ lawyers. The court stated that if the defendants actually had expended anywhere near the number of h ours of attorney time as suggested by the plaintiffs, 8 then the amount of the defendants’ hours was simpl y “more unreasonable” and it could not be used to “tr ansmute 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 numb er of attorney hours in a fee request is “the responses necessitated by the maneu vering of the other side.”
Ramos , 713 F.2d at 554. The Supreme Court has also reco gnized that part of an attorney’s calculus of the amount of time reasonabl y necessary for a case is the vigor which the opponents bring to the dispute. Se e 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, Court9 The term “block billing” refers to “the time-keepin g method by which each

lawyer and legal assistant enters the total daily t ime 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 - Awarded Attorney Fees , ¶ 16.02[8][b] (1997) (discussing cases that have held “the vehemence or tenacity of the opposition will j ustify 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 couns el is not, of course, an immutable yardstick of reasonableness, and it may b e 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 warrantthe expenditure of large amounts of attorney time, and it highlights the too th-and-nail litigating approach the city used in this case. In light of this tenac ious effort by the city and its lawyers, the amount of attorney time expended by th e 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 that9 (...continued)

117 S. Ct. 297 (1996). - 22 - camouflage the work a lawyer does naturally and qui te correctly raise suspicions about whether all the work claimed was actually acc omplished 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 hou rs for which compensation is requested and how those hours were allotted to spec ific 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 plaintif fs’ lawyer had engaged in “block billing.” In their initial application for attorne y’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 bille d 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 statement s do not allocate the precise amounts of time spent on each particular task during each10 We do not understand the district court’s reference to “duplicative” time

because there were no other lawyers for whom the pl aintiffs 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 lawyer s do the same task. See Ramos , 713 F.2d at 554 (“The more lawyers representing aside 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 high ly improbable that there will be any “duplication” of services, in this sense of dou ble billing. Instead, the only kind of “duplication” that might occur would be whe n the lawyer repeats the same task unnecessarily. Our own review of the time she ets submitted by the plaintiffs for their lawyer has failed to reveal any such repe tition of unnecessary tasks. Furthermore, because all the claims here are interr elated and the plaintiffs secured all the relief they requested, it is not ne cessary that the court be able to break down the hours between the various claims. T hat, of course, will not always be the case and prudent counsel would theref ore be well advised to keep

(continued...) - 23 - 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 bas is 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 i s concerned about identifying certain tasks that it felt were redundant or unnece ssary, 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 w hich hours were “excessive or duplicative” 10 is not supported by the record. On the other hand , the district court10 (...continued)

records reflecting the time that is uniquely allocated to a particular claim if that claim is distinct and severable from others being a sserted.

11 District courts do not necessarily have to “wade th rough [a litigant’s] voluminous time records to rescue the compensable t ime from the sea of noncompensable time.” In re Central Ice Cream Co. , 836 F.2d 1068, 1074 (7th Cir. 1987). Unfortunately, prevailing attorneys occasio nally support the reasonableness of their fee application by dumping a pile of timesheets on their adversary and the court for analysis. In such a sc enario, the district court is free to “require the submitting party to organize the ti me material in a meaningful way with a comprehensive summary so that the material i s 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 - 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 burde n of organizing or summarizing the billing records in such a manner as to facilitate judicial review of the reasonableness of the claim for attorneys’ f ees. 11

E. Defendants’ failure to challenge portion of requested fe e . The court’s award dropped the fee request from the $186,008.75 presented by the plaintiffs, and the $140,316.25 left unconte sted by the defendants, to $105,720.89. The end result was a fee award that w as nearly 25 percent below the unrebutted amount of the plaintiffs’ fee reques t (and 43 percent below the original plaintiffs’ request).- 25 -

Of course, there is no question that a district cou rt may rely on its general experience as well as its closer familiarity with acase 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 – i n this sense, the court’s discretion is not absolutely constrained by the amo unt 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 Thi rd Circuit’s approach, a district court has no reason to disregard uncontest ed affidavits filed by the fee applicant when the defendant chose not to put those amounts in controversy), vacated478 U.S. 1015 (1986), reinstated after remand , 807 F.2d 49 (3d Cir. 1986). However, the fact that the district court h ere chose to depart significantly from the unchallenged portion of the plaintiffs’ fe e 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 magnitu de 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 fai ling to hold an evidentiary hearing on the attorneys fees issue and then relyin g on a rationale – i.e. the “fairly12 The only additional evidence the plaintiffs say the y 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 hear ing would have provided them an opportunity to explain “the overall reasonablene ss” of their request. - 26 - simple” nature of the case – that was not articulat ed 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 hear ing. Ordinarily, a district court does not abuse its discretion in deciding not to ho ld an evidentiary hearing when no such request is ever made. Furthermore, many co urts 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 throughbriefs, affidavits, and depositions. See Derfner & Wolf, supra , ¶ 18.06[4][a] (collecting cases). In this case, the plaintiffs have failed to show th at 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 wh en 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 ar gument on this point is inapposite. See Michael A. Cramer, MAI, SPRA, Inc. v. United State s , 47 F.3d 379, 380-81 (10th Cir. 1995). The Cramercase involved a decision by a district court to deny a fee request just three days after t he defendant had filed its- 27 -

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 di scretion. 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 cou rt should redetermine a reasonable attorney’s fee under 42 U. S.C. § 1988(b) consistent with this opinion.No. 96-6399, Robinson v. City of Edmond

BRISCOE , Circuit Judge, concurring and dissenting: Subject to certain caveats, I concur with the major ity that the district court erred in (1) finding plaintiffs’ attorney engaged i n improper “block billing,”and (2) reducing plaintiffs’ attorney fees based on the ir “partial success.” I also agree that the district court properly declined to conduc t an evidentiary hearing on plaintiffs’ attorney fee application. In all otherrespects, however, I must dissent. I. Legal Standards My initial concern with the majority’s opinion is t he standard of review it invokes in reviewing the district court’s award of attorney fees. The majority correctly observes a district court’s determinationof 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 majoritythen suggests, however, that “the determination of what constitutes a ‘reasonabl e’ 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 o f this circuit. Although statutory interpretations and legal conclu sions underlying an attorney fee award are subject to de novo review, P helps v. Hamilton , 120 F.3d1 The standardby which a district court calculates an attorney f ee 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 d ecision to fashion hourly rate in amount significantly higher than undisputedprevailing local market rate was a legal matter subject to de novo review; relevant is sue was the proper legal standard– “prevailing market rate” versus “normal b illing rate”--not the mere reasonableness of the award). Similarly, the distr ict court’s purely discretionary decisions–e.g., adjusting the loadstar, denying fee s altogether for conscienceshockingly excessive requests, and awarding fees ab ove 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 suc h cases, we have lumped together all components of our review into a genera l abuse of discretion standard. The cases cited by the majority highlight this defi ciency. Nevertheless, assuming the proper legal standards have been applied, the appropriate manner for examining a district court’s reasonableness inquiryis 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); accordMigis v. Pearle Vision, Inc. , 135 F.3d 1041, 1047 (5th Cir. 1998); Dague v. City of B urlington , 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 appl ied to awards made pursuant to federal fee-shifting statutes is the same. - 2 - 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 revie wed for clear error. 1 United States v. Hardage , 985 F.2d 1427, 1436-37 (10th Cir. 1993); AmericanIns. 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- 3 -

factual support in the record, or if the appellate court, after reviewing all the evidence, is left with the definite and firm convic tion 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 “microscop ic 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 ne ed to accord substantial deference to district court’s factual findings of r easonableness). 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 bille d in the marketplace under similar circumstances.” Majority Op. at 9. Unfort unately, the majority then injected a degree of confusion into the mix by theo rizing the objective in calculating the fee “is to simulate the market wher e 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 i n the pursuit of a securities class action taken on contingency, the court reason ed that district courts should “determine what the lawyer would receive if he were selling his services in the3 The dilemma is illuminated further by the Seventh C ircuit’s apparent

rejection of an abuse of discretion standard of rev iew in favor of a stricter and more amorphous “deferential standard.” Steinlauf , 962 F.2d at 568.

- 4 - 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 t ransactional and litigation matters, including civil rights defense. Large Firm bills its clients at $250/hou r. 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 plai ntiff’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. Despi te the fact that hundreds of local civil rights attorneys could have performed s imilar work for half the price in half the hours, Large Firm arguably would be entitl ed to its full request under the Seventh Circuit’s approach inasmuch as the firm’s attorneys are able to command4 The term “reasonable” in the calculation of statuto ry 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 o n rates that proves (continued...) - 5 - 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 Be ard v. Teska , 31 F.3d 942, 956 (10th Cir. 1994): [J]ust as lawyers are not fungible, so too legal se rvices are not fungible. It will be recalled that the legal stand ard for fee awards is a prevailing market value test. And for that purpo se the relevant market value is not the price that the particular l awyer chosen may be paid by willing purchasers of his or her services, but rather the price that is customarily paid in the community for servi ces like those involved in the case at hand. Only a moment’s thought is need[ed] to see why thatis so in the context of fee awards against an adversary. Th ere are of course different markets for different areas of lawyer’s w ork. Lawyers who handle home closings do not bill or receive paymentat the same hourly rate as lawyers who handle major corporate m ergers and acquisitions–even though each may be handling a “pu rchase.” If the home buyer chooses to retain a merger specialist be cause the buyer wants to take advantage of the latter’s demonstrate d 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 fo r a legally sufficient reason–the higher cost of the merger spe cialist cannot properly be thrust on someone who did not, after al l, make the uneconomic choice of counsel. Fee-shifting statutes entitle prevailing litigants to a “reasonable” 4 attorney fee,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 bill ing practices. - 6 - sufficiently “adequate to attract competentcounsel.” Homeward Bound, Inc. v. Hissom Mem’l Ctr. , 963 F.2d 1352, 1355 (10th Cir. 1992) (emphasis ad ded). Such statutes do not permit an award of fees charge d 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 c ase involved a contractbased attorney fee award. Such awards are designedto 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 Contracto rs, Inc. , 834 F.2d 1533, 1547- 48 (10th Cir. 1987). The Supreme Court has pointedout the striking contrast by holding fee-shifting statutes: were not designed as a form of economic relief to i mprove the financial lot of attorneys, nor were they intended to replicate exactly the fee an attorney could earn through a private fe e arrangement with his client. Instead, the aim of such statutes was to enable private parties to obtain legal help in seeking redress forinjuries resulting from the actual or threatened violation of specific federal laws. Pennsylvania v. Delaware Valley Citizens’ Council f or Clean Air , 478 U.S. 546,- 7 -

565 (1986). II. Specific Components of Award Partial Success The district court’s opinion is ambiguous with resp ect to the role plaintiffs’ degree of success played in the ultimate attorney f ee award. At one point, the district court notes plaintiffs achieved only parti al success because they failed to show a violation of their rights under the Free Exe rcise Clause of the First Amendment and recovered only nominal damages. Appe llants’ 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 r easonably expended on [the] litigation.” Id . at 6. If, as the majority interprets the preceding statem ents, the district court decreased plaintiffs’ reimbursable hours based on their failure to prevail on the Free Exercise claim and recover more than nominal d amages, the court abused its discretion. This case was not about money. Plaint iffs 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 E stablishment Clause claim rather than their alternative Free Exercise claim is irrel evant for fee purposes. A “fee- 8 -

award should not be reduced simply because the plai ntiff 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 p laintiffs’ attorney fees solely as a result of their excessive request, ther e was no abuse of discretion. This ambiguity highlights why it is so essential th at district courts articulate specific reasons for fee awards to give us an adequ ate basis for review. See
Ramos v. Lamm , 713 F.2d 546, 552 (10th Cir. 1983). On remand, t he district court should make clear the specific reasons for it s reductions in plaintiffs’ attorney fee application.

Simplicity of case In articulating its rationale for rejecting the att orney fee award here, the majority focuses primarily on its disagreement withthe district court’s characterization of this case as a “fairly simple, straightforward lawsuit.” Although the constitutional issues raised in this a ction may rest outside the expertise of many practitioners, it is not “clear e rror” to classify the case as “fairly simple.” The discovery disputes the majority considers pivot al to the difficulty of the case involve three motions by defendants: a mo tion to compel one piece of5 Plaintiffs submitted one summary judgment motion onMarch 15, 1994,

and a second motion on March 29, 1994. They includ e only the March 29 motion in their appendix, leading me to believe the latter superseded the former. - 9 - correspondence, a motion to strike experts based onplaintiffs’ failure to adhere to the court’s scheduling order, and a motion in limin e to exclude all testimony relating to settlement and compromise negotiations. These pleadings represented standard pretrial maneuvering. Indeed, the fact th at the parties filed only three non-dispositive pretrial motions is, if anything, e vidence of the simplicity of the case. Further, the litigants’ decision to depose e very named party in preparation for the two-day trial hardly suggests the lawsuit w as atypical or particularly complex. The majority also attaches considerable significanc e 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) andeach side filed a single summary judgment motion on the merits. 5 Plaintiffs’ motion contained only fifteen pages of argument. Second, although two sp ecial interest groups–the Christian Legal Society of Oklahoma and Citizens fo r Keeping the Cross–opted to file amicus briefs, their presence does not speak t o the difficulty of the case; it indicates only that they sought to influence the co urt’s opinion. Third, the “difficult” ancillary issues the majority identifie s either were not raised by the6 The majority states one particularly difficult issu e raised in the case was

the propriety of the “use of experts to gauge publi c perceptions of religious symbols.” Majority Op. at 15. Nowhere does the re cord reflect any litigant advanced this matter. I can only assume the majori ty predicates this statement on defendants’ motion to strike plaintiffs’ experts, amotion not included in the record on appeal. The docket sheet suggests, howev er, that defendants filed that motion based on plaintiffs’ failure to follow the c ourt’s scheduling order. - 10 - litigants (e.g., Article III standing for Establish ment Clause claims), had no merit (e.g., plaintiffs’ objections to defendants’ qualif ied 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 stronglydisagreed” 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 s ingle-issue one, as to whether the average observer, when viewing the seal in ques tion, would perceive it as conveying or attempting to convey primarily a messa ge of endorsing Christianity, or that Christianity is favored or preferred.” App ellants’ Br., Ex. A at 5 n.2. This observation is not clearly erroneous. Just as reas onable minds may differ on the outcome of a horse race, so too may appellate court s 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’ cert iorari 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 complexity7Nor is the fact that we remanded the case to the di strict court on the merits

dispositive. Procedural machinations seldom provid e a window into the simplicity or difficulty of a lawsuit. - 11 - of the case. 7 Even assuming, arguendo , this case was complex, the district court did not err in classifying plaintiffs’ fee application as u nreasonable. Defendants liken plaintiffs’ litigation strategy to “using an atom b omb 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 foll ow that the amount of time actually expended is the amount of time reasonably expended”). Moreover, the pleadings included in the record on appeal are repl ete with prolix and repetitious arguments as well as innumerable extraneous materia ls. 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 fail ing to take into account the billings of defendants’ attorneys in calculating pl aintiffs’ fee award. We have held that “[i]n determining what is a reasonable ti me in which to perform a given task or to prosecute the litigation as a whole, the court should consider that what- 12 -

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 expendedby defense counsel is not . . . an immutable yardstick of reasonableness” and “ may be disregarded or discounted as a comparative factor if found to be u nreasonable.” 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 forthat of the district court. The district court specifically remarked in its att orney fee order that “Defendants’ reliance on the historical significance of the cros s and other features of the seal in defense of Plaintiffs’ Establishment Clause claim d id complicate and protract the litigation.” Appellants’ Br., Ex. A at 5. There i s nothing in the record to suggest the district court neglected to compensate plaintif fs’ 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 me an 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 unreasonable8 The majority has given the district court virtual ly no guidance on how to

handle the case on remand. Short of awarding plain tiffs their full fee request, it is not clear what the district court is to do. I woul d 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 - billing practices, to force the district court to award compensation it found unreasonable.” Handcuffing a court from reducing a fee award belowa level to which the non-prevailing party has specifically raised object ions invites the same type of collusion and excesses. As long as the district co urt 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 nonprevailing party’s billings is irrelevant.
III. The only basis for remanding this case to the distr ict 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 th is appeal will foster the exact type of distasteful attorney fee disputes against which both the Supreme Court and the Tenth Circuit have counse led. See Hensley , 461 U.S. at 437; Mares , 801 F.2d at 1203. The broad discretion of distri ct courts in fashioning attorney fee awards must be respected le ss we turn every attorney fee- 14 -

motion into a “second major litigation.” Hensley , 461 U.S. at 437. Because I do not believe the majority opinion is faithful to thi s principle, I respectfully dissent.