Bench Billboard Company v. City of Toledo

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0998n.06
No. 11-3166
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Sep 10, 2012
DEBORAH S. HUNT, Clerk
BENCH BILLBOARD COMPANY, )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
CITY OF TOLEDO, ) NORTHERN DISTRICT OF OHIO
)
Defendant-Appellee. )
)
BEFORE: SILER, DAUGHTREY, and WHITE, Circuit Judges.
HELENE N. WHITE, Circuit Judge. Plaintiff-Appellant Bench Billboard Company
(BBC) appeals the district court’s grant of summary judgment in favor of the City of Toledo on
BBC’s First and Fourteenth Amendment claims challenging provisions of an ordinance regulating
“courtesy benches.” BBC also appeals the district court’s grant of attorneys’ fees in an amount lower
than requested by BBC. We AFFIRM in part and REVERSE in part.
I.
BBC installs “courtesy benches” that display advertisements on their back-rests on public
property adjacent to city streets, particularly at or near bus stops. For many years, the City of Toledo
(the City) issued permits for the placement of these benches near bus stops and other rights of way.
In 2007, the Toledo City Council enacted Ordinance 59-07 (Ordinance), which amended Chapter
719 of the Toledo Municipal Code (Chapter 719). The ordinance’s “Summary and Background”
section states:
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The Courtesy Benches are a form of advertising for the bus bench companies, which
also provide a needed service for the citizens of Toledo. The current ordinance
specifies the permitting and placement of these structures along with some general
guidelines but has no language regarding the maintenance, sanitation, and conditions
of the permit. It is necessary to add specific provisions to the code in order to better
enforce this chapter of the code.
(Ordinance, R. 29-1, at 8.) The ordinance sets forth procedures for the application, issuance, and
revocation of permits, and allows the City’s Commissioner of Building Inspection and Code
Enforcement (“Commissioner”) to revoke a permit for a violation of Chapter 719 and various other
reasons, including a decision by the Commissioner that the bench is “prejudicial to the interests of
the general public.”
The ordinance amended Toledo Municipal Code Section 719.08 to add requirements
regarding the appearance and placement of the benches. Under Section 719.08(a),
No bench shall carry any political advertising or advertising of cigarettes, beer or
intoxicating liquor, nor shall any advertisement or sign on any such bench display the
words, “STOP,” “LOOK,” “DRIVE-IN,” “DANGER,” or any other word or words
which might mislead or distract traffic.
(Id. at 10.) Under Section 719.08(e),
All bus benches at all locations shall maintain a trash receptacle affixed to the
courtesy bench. The receptacle shall be capable of allowing water and other liquids
to pass through and shall be no smaller than 10 gallons nor larger than 32 gallons.
The permittee is responsible to see that the trash receptacle is emptied on an as
needed basis and that the area ten feet in diameter around the bus bench is maintained
free of litter and debris.
(Id. at 10–11.) Section 719.08(c) requires, in relevant part, that,
Benches shall be kept at all times in a neat, clean and usable condition and ice, snow,
litter and debris shall be removed from the benches and the vicinity thereof in such
a manner that each bench shall be accessible at all times.
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(Id. at 10.)
BBC owns 299 courtesy benches in Toledo. In February 2007, the City wrote letters to BBC
and Affordable Bench Advertising Co. (Affordable Bench), another owner of courtesy benches,
advising them that bench permits would be regulated under the new ordinance. When BBC sought
to renew permits for its benches the following month, the City informed BBC that its benches did
not comply with the ordinance and that its permits would not be renewed. The letter also informed
BBC that its benches would be “subjected to removal.”
Affordable Bench was granted permits for 267 benches, even though some of their benches
did not comply with the ordinance because they did not have trash receptacles affixed to them. The
Toledo Regional Transit Authority (TARTA), a publicly-owned-and-operated bus service, also
places covered shelters containing benches at a number of its bus stops. Those shelters do not
contain advertising and are not regulated by Chapter 719.
BBC brought suit against the City, challenging several provisions of the ordinance as
violative of BBC’s Free Speech and Equal Protection rights under the First and Fourteenth
Amendments of the United States Constitution, and bringing a state law claim for tortious
interference with economic relationships. After BBC and the City filed cross-motions for summary
judgment, the district court granted partial summary judgment for BBC, ruling that the City’s
prohibition on political speech violated the First Amendment, and that the Commissioner’s power
to revoke permits for benches deemed “prejudicial to the interest of the general public” was
unconstitutionally vague. The district court found that both provisions were severable from the
remainder of Chapter 719 and enjoined the City from enforcing those portions of the ordinance. On
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BBC’s remaining claims, the district court granted summary judgment for the City, ruling that the
ordinance’s ban on the use of the words “stop,” “look,” “drive-in,” and “danger,” and its
requirements that trash receptacles be affixed to benches and emptied when necessary, and that
benches be cleared of ice, snow, litter, and debris, did not violate BBC’s constitutional rights.
BBC then moved for an award of attorneys’ fees under 42 U.S.C. § 1988(b), as the prevailing
party in a 42 U.S.C. §1983 action. The district court granted that motion, but awarded less than the
amount requested by BBC. After the district court granted summary judgment for the City on BBC’s
remaining claims, BBC timely appealed.
II.
This Court reviews de novo a district court’s grant of summary judgment. ACLU of Ky. v.
Grayson Cnty., 591 F.3d 837, 843 (6th Cir. 2010). Summary judgment is proper where no genuine
dispute of material fact exists and the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(a). In reviewing a grant of summary judgment, this Court draws all reasonable
inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986).
A.
BBC first argues that the district court erred in concluding that the ban on the use of the
words “stop,” “look,” “drive-in,” “danger,” and other words that might mislead or distract traffic,
did not violate BBC’s First Amendment rights.
“Billboards and other visual signs, it is clear, represent a medium of expression that the Free
Speech Clause has long protected.” Prime Media, Inc. v. City of Brentwood, Tenn., 398 F.3d 814,
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818 (6th Cir. 2005). But unlike oral speech, such signs “take up space and may obstruct views,
distract motorists . . . and pose other problems that legitimately call for regulation.” Id. (citing City
of Ladue v. Gilleo, 512 U.S. 43, 48 (1994)). The parties agree that the ordinance’s ban on certain
words on courtesy bench advertisements constitutes a content-based restriction on commercial
speech, which is accorded less protection than other constitutionally guaranteed expression. Central
Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 U.S. 557, 563 (1980). The
Supreme Court has set out a four-part inquiry to determine whether such restrictions violate the First
Amendment:
At the outset, we must [(1)] determine whether the expression is protected by the
First Amendment. For commercial speech to come within that provision, it at least
must concern lawful activity and not be misleading. Next, we ask whether [(2)] the
asserted governmental interest is substantial. If both inquiries yield positive answers,
we must [(3)] determine whether the regulation directly advances the governmental
interest asserted, and [(4)] whether it is not more extensive than is necessary to serve
that interest.
Id. at 566. The City carries the burden of justifying the restriction it seeks to impose. Edenfield v.
Fane, 507 U.S. 761, 770 (1993) (invalidating as unconstitutional a state rule prohibiting CPA’s from
engaging in direct, personal solicitation of potential clients). “This burden is not satisfied by mere
speculation or conjecture; rather, a governmental body seeking to sustain a restriction on commercial
speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate
them to a material degree.” Id. at 770–71.
The parties agree that the speech regulated is lawful and not misleading. BBC concedes that
traffic safety is a recognized governmental interest, but argues that the City cannot establish a
substantial governmental interest in traffic safety because “it has not regulated signage on and around
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its right of ways in a manner that would allow it to assert that the four words prohibited by Section
719.08(a) are more distracting than other signage and therefore unsafe.” (BBC Br. at 14.) Further,
BBC argues that the ordinance’s failure to regulate advertisements on other structures on or abutting
its sidewalks, or to regulate advertisements on courtesy benches that do not contain the prohibited
words, renders the ordinance so underinclusive that it does not directly advance the City’s stated
interests.
However, so long as the ordinance directly advances a government’s substantial interests and
is drawn narrowly, the fact that it is underinclusive does not render the interests insubstantial or the
ordinance otherwise violative of the First Amendment. See Metromedia, Inc. v. City of San Diego,
453 U.S. 490, 511 (1981) (concluding that a ban on outdoor advertising signs directly advanced the
stated objectives of traffic safety and aesthetics, and that fact was not altered because the ordinance
exempted “on site” signs that are located at the business being advertised). As the Supreme Court
noted in Metromedia, a city may believe that certain types of advertising “present[] a more acute
problem” than other types of advertising, and may decide that in “limited instance[s] . . . its interests
should yield.” Id. at 511-12.
BBC also argues that the City has not met its burden to “come forward with some quantum
of evidence, beyond its own belief in the necessity for regulation, that the harms it seeks to remedy
are concrete and that its regulatory regime advances the stated goals.” Pagan v. Fruchey, 492 F.3d
766, 771 (6th Cir. 2007) (citing Edenfield, 507 U.S. at 770-72). In Pagan, the ordinance at issue
prohibited the parking of vehicles on streets with the purpose of displaying them for sale. Id. at 769.
The city asserted an interest in traffic safety and aesthetic concerns, but its only evidence that the
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regulation directly advanced those goals was the police chief’s affidavit containing a “conclusory
articulation of governmental interests,” which we deemed “simple conjecture” that was “of exactly
the type deemed insufficient by the Supreme Court in Edenfield.” Id. at 773. In determining whether
the city had carried its burden, we declined an invitation to adopt a standard of “obviousness” or
“common sense,” instead requiring “some evidence to establish that a speech regulation addresses
actual harms with some basis in fact.” Id. at 774 (emphasis in original).
Notably, however, we recognized that such a showing was established in Metromedia, where
a plurality of the Supreme Court noted the frequency with which local governments had placed—and
courts had upheld—restrictions on billboards. Id. at 774-75 (citing Metromedia, 453 U.S. at 509).
Drawing on that history of billboard regulation, the Supreme Court concluded, “[w]e likewise
hesitate to disagree with the accumulated, common-sense judgments of local lawmakers and of the
many reviewing courts that billboards are real and substantial hazards to traffic safety.” Metromedia,
453 U.S. at 509. Thus, in the context of outdoor billboard regulation, “Metromedia looked to its
own substitute for the sort of evidence Edenfield requires—the collective judgment of many
legislative and judicial decisionmakers.” Pagan, 492 F.3d at 775.
In Pagan, on the other hand, no similar substitute existed to “support[] the conclusion that
restrictions placed on ‘For Sale’ signs posted on vehicles address concrete harms or materially
advance a governmental interest.” Id. BBC contends that this case is like Pagan because the City
has not offered evidence such as “studies, reports, surveys or even complaints” to establish that the
prohibited words are distracting or misleading. (BBC Br. at 16.) The only evidence the City has
offered to establish that the ordinance advances its stated goals is the Commissioner’s deposition
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testimony that he finds the signs distracting.1 However, the City argues, and the district court found,
that this case is governed by Metromedia, because “[t]he rationale—the risk of distracting
drivers—for permitting local governments to regulate billboards for traffic safety purposes is the
same for bench billboards. That risk justifies the regulation’s prohibition against use of certain
words . . . .” (Order, R. 44, at 18–19.)
The district court correctly concluded that the ordinance in this case is materially
indistinguishable from that in Metromedia. In both cases, the statutes seek to regulate outdoor
advertisements intended to attract—and distract—the attention of drivers. That bench billboards are
generally much smaller than overhead billboards is of little relevance because they are positioned
much closer to passing traffic. Accordingly, the City met its burden at the third prong of the Central
Hudson inquiry by relying on the Supreme Court’s finding in Metromedia that “the accumulated,
common-sense judgments” of local lawmakers and reviewing courts have established that
“billboards are real and substantial hazards to traffic safety.” 453 U.S. at 509. That finding may
substitute for the independent quantum of evidence that the City would otherwise have to put forth
to establish that its regulatory regime addresses a concrete harm, Pagan, 492 F.3d at 775, and
therefore we need not decide whether the City would have met its burden to do so.
1
In response to questions from opposing counsel, Commissioner Zervos testified that he
would find each of the prohibited words distracting. He also testified that, in comparison with other
signs that appear along roads generally, “[w]hen one considers that these are on courtesy benches
in an urban environment, where traffic is more stop and go as opposed to suburban or rural areas,
a distraction in the latter cases is minute, but in an urban area, where bus stops and bus transits are
required, they are far more dangerous.” (Zervos Dep., R. 30, at 56–57.)
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Under the fourth Central Hudson prong, “the relevant question is whether the speech
restriction is narrowly tailored; that is, we must determine whether the speech restriction at issue is
more extensive than is necessary to serve the asserted interests.” Pagan, 492 F.3d at 771 (citing
Thompson v. W. States Med. Ctr., 535 U.S. 357, 367 (2002) (internal quotation marks omitted)). The
tailoring inquiry “does not require a ‘least restrictive means’ analysis.” Id. (citing Lorillard Tobacco
Co. v. Reilly, 533 U.S. 525, 556 (2001)). But there must be a “reasonable fit between the
legislature’s ends and the means chosen to accomplish those ends, a means narrowly tailored to
achieve the desired objective.” Id. (citing Lorillard Tobacco, 533 U.S. at 556 (alteration omitted)).
BBC argues that this prong is not met because the choice of the words “stop,” “look,” “drive-
in,” and “danger” is arbitrary and underinclusive. BBC does not argue that the ordinance is
overinclusive. As in Metromedia, however, the ordinance reflects the City’s reasonable decision that
bench advertisements containing words that are misleading or distracting present a more acute
problem than other kinds of advertisements, and we will not reject that judgment. Metromedia, 453
U.S. at 512. The ordinance is “not more extensive than is necessary” to serve the interest of traffic
safety. Accordingly, we find that the ordinance’s prohibition on the use of the words “stop,” “look,”
“drive-in,” “danger,” and other words that might mislead or distract traffic on courtesy benches, does
not violate BBC’s Free Speech rights under the First Amendment.
B.
BBC next challenges as violative of its First Amendment rights the ordinance’s requirements
that a trash receptacle be affixed to each bench and that the area around each bench be kept free from
ice, snow, litter, and debris.
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“Time, place, and manner” restrictions such as these “are valid provided [1] that they are
justified without reference to the content of the regulated speech, [2] that they are narrowly tailored
[3] to serve a significant governmental interest, and [4] that they leave open ample alternative
channels for communication of the information.” Prime Media, 398 F.3d at 818 (citations omitted).2
Here, the ordinance’s provisions regarding bench maintenance meet this test. BBC does not
dispute that the provisions are content-neutral, that the City’s asserted interests in ensuring pedestrian
safety and aesthetics are significant, see Metromedia, 453 U.S. at 507-08, or that the restrictions
leave open ample alternative channels for communication of information, see Prime Media, 398 F.3d
at 819 (holding that billboard regulations “leave open ample alternative communication because they
permit billboards that satisfy the height and size restrictions . . . and do not affect any individual’s
freedom to exercise the right to speak and to distribute literature” in the area regulated).
Finally, a regulation is narrowly tailored if it “promotes a substantial government interest that
would be achieved less effectively absent the regulation,” and it does not “burden substantially more
speech than is necessary to further the government’s legitimate interests.” Id. The government
entity “may not regulate expression in such a manner that a substantial portion of the burden on
2
BBC asserts without elaboration or support that the district court should have analyzed the
ordinance’s bench maintenance regulations under the four-part intermediate scrutiny test under
Central Hudson, 447 U.S. at 566. However, BBC does not argue that these requirements regulate
purely commercial speech of the sort governed by Central Hudson. See Cleveland Area Bd. of
Realtors v. City of Euclid, 88 F.3d 382, 386 (6th Cir. 1996) (Central Hudson test is inappropriate
for ordinance that applies to both commercial as well as non-commercial speech). In any event, the
test for time, place, and manner restrictions is “substantially similar” to the test articulated in Central
Hudson. See Prime Media, 398 F.3d at 824 (citing Lorillard Tobacco Co. v. Reilly, 533 U.S. 525,
554 (2001)).
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speech does not serve to advance its goals,” but “[s]o long as the means chosen are not substantially
broader than necessary to achieve the government’s interest . . . the regulation will not be invalid
simply because a court concludes that the government’s interest could be adequately served by some
less-speech-restrictive alternative.” Id. at 819-20 (quoting Ward v. Rock Against Racism, 491 U.S.
781, 799-800 (1989)).
BBC argues that the City has not pointed to evidence that the courtesy benches are the cause
of the litter, ice, or snow. BBC also notes that the City could not quantify the number of complaints
that it received from the public regarding litter around the area of the benches. Further, BBC argues
that the regulation is underinclusive because the public will continue to litter at TARTA bus shelters
and other locations, a harm which the ordinance will not alleviate. Finally, BBC asserts that if it is
forced to comply with the ordinance, it will be cost-prohibitive for BBC to continue operating in
Toledo, thus rendering the ordinance a de facto ban on an entire class of constitutionally-protected
speech.
Despite these objections, the district court was correct in finding that the regulations are
narrowly tailored. In the absence of the ordinance, the City’s interests in ensuring pedestrian safety
and litter-free streets would be achieved less effectively. Prime Media, 398 F.3d at 819. City
officials testified that they received several complaints regarding the condition of courtesy benches
and the area around the benches. The fact that the City chose regulations that address its stated
interests in some respects and not others does not render the ordinance insufficiently tailored. See
Prime Media, 398 F.3d at 821 (noting that this Court has previously found that “an incomplete (yet
content-neutral) ban nonetheless directly advanced legitimate interests”) (citing Wheeler v. Comm’r
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of Highways, Com. of Ky., 822 F.2d 586, 595 (6th Cir. 1987)). BBC’s argument that the ordinance
is effectively a ban on an entire class of constitutionally-protected speech, because BBC would find
it cost-prohibitive to operate under the ordinance, is also unavailing. BBC cites City of Cincinnati
v. Discovery Network, Inc., 507 U.S. 410, 430 (1993), for the proposition that “Toledo has basically
enacted an Ordinance that bans “a whole class of Constitutionally-protected speech.” (BBC Br. at
24.) However, in that case, Cincinnati ordered the removal of plaintiff’s newsracks from sidewalks
under a sweeping ordinance that banned from “any public place” the distribution or sale of
“commercial handbills,” defined broadly as any printed or written matter that advertised merchandise
or directed attention to a business or for-profit event. Id. at 414. In holding the ordinance
unconstitutional, the Supreme Court, utilizing the standards set forth in Central Hudson for content-
based commercial speech, found that the regulation bore “no relationship whatsoever” to the asserted
interests of safety and aesthetics. Id. at 424. Here, on the other hand, the ordinance is content-
neutral, the regulation is narrowly-tailored to the City’s asserted interests, and the ordinance at issue
is not nearly as sweeping as a total ban on written commercial speech in public.3
Accordingly, we conclude that the ordinance’s requirements that trash receptacles be affixed
to benches and that the area around benches be kept free of ice, snow, litter, and debris, do not
violate BBC’s First Amendment rights.
3
BBC cites no authority for the proposition that its own inability to operate profitably under
the ordinance renders the ordinance a de facto ban on an entire class of constitutionally-protected
speech of the sort addressed in Discovery Network, 507 U.S. at 430. Nor does the record show that
the ordinance is so burdensome as to render courtesy benches impossible to provide, as at least one
other company, Affordable Bench, has begun complying with the ordinance by attaching trash
receptacles to its benches.
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C.
BBC argues that the ordinance violates its Equal Protection rights by treating BBC benches
differently than benches at TARTA bus shelters and newsracks allowed on the City’s sidewalks,
neither of which are covered by the ordinance. Further, BBC argues that the law is being enforced
differently with respect to benches owned by another courtesy bench company, Affordable Bench.
The Equal Protection Clause prohibits states from making distinctions that either (1) burden
a fundamental right, (2) target a suspect classification, or (3) intentionally treat one differently from
others similarly situated without any rational basis for the difference. Radvansky v. City of Olmsted
Falls, 395 F.3d 291, 312 (6th Cir. 2005). Where, as here, a plaintiff proceeds under the third theory,
it must prove that it has been treated differently from similarly-situated individuals, and that the
government’s actions lacked any rational basis. See Club Italia Soccer & Sports Org. Inc. v. Charter
Twp. of Shelby, Michigan, 470 F.3d 286, 298 (6th Cir. 2006), overruled on other grounds as
recognized by Davis v. Prison Health Servs., 679 F.3d 433 (6th Cir. 2012).
To establish that it was treated differently from similarly situated entities, BBC must
demonstrate that it and the entities who were treated differently were similarly situated in all material
respects. See TriHealth, Inc. v. Bd. of Comm’rs, Hamilton Cnty., Ohio, 430 F.3d 783, 789–90 (6th
Cir. 2005). The district court correctly found that BBC is similarly situated to other courtesy bench
companies and to TARTA,4 but not to newsracks, because unlike newsracks, the others provide
4
BBC incorrectly asserts that the district court found that TARTA and BBC were not
similarly situated. In fact, the district court held that they were similarly situated, but that the City’s
decision to treat TARTA and BBC differently had a rational basis. (See Order, R. 44, at 26.)
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“location[s] where people congregate while waiting for the bus, thereby potentially increasing the
amount of litter present.” (Order, R. 44, at 24.) In claiming that the district court erred in refusing
to find BBC similarly situated to providers of newsracks, BBC argues that the “similarly situated”
inquiry should refer to the form of advertising rather than the entities that own them. However,
nothing in the district court’s reasoning suggests that it examined only the characteristics of the
owners of the advertising to the exclusion of the form of advertising. On the contrary, the district
court’s reasoning suggests that it took into account both the location and the form of advertising in
determining that newsracks and benches, and thus the entities that place each in the public right of
way, are not similarly situated for purposes of the Equal Protection Clause.
Under rational basis review, despite differential treatment of BBC and similarly situated
entities, the regulation must be sustained “if any conceivable basis rationally supports it.” TriHealth,
430 F.3d at 790. A defendant “need not offer any rational basis so long as this Court can conceive
of one.” Club Italia Soccer & Sports Org., 470 F.3d at 299.
The City asserts that the ordinance treats TARTA differently from BBC because the former
is a taxpayer-funded public transportation system that incidentally provides benches at its bus stops
for the benefit of its riders, whereas BBC is a for-profit advertising company. The district court
correctly concluded that a rational basis exists for the differential treatment because, “[g]iven the
importance of low-cost public transportation, the city rationally can impose lesser restrictions on the
public operator of its transit system than on others not in the business of providing a similarly
essential public service.” (Order, R. 44, at 26–27.)
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Further, a rational basis existed to issue permits to Affordable Bench because, unlike BBC,
it had begun to comply with the ordinance by attaching trash receptacles to its benches. Although
incomplete, Affordable Bench’s efforts at compliance provide a rational basis for the City’s
differential treatment of Affordable Bench and BBC. Accordingly, BBC cannot establish an equal
protection violation.
III. Attorneys’ Fees
BBC claims that, in reducing its initial request for $132,532 in attorneys’ fees, the district
court erred in: (1) reducing attorneys’ fees based on the litigation’s partial success, (2) reducing
attorneys’ fees based on the unreasonableness of BBC’s quarter-hour billing increments, and (3)
reducing the fee award based on one attorney’s affidavit describing his firm’s assistance on the
federal matter as “minimal.” (BBC Br. at 29–32.) This Court reviews a district court’s award of
attorneys’ fees under 42 U.S.C. § 1988 for an abuse of discretion. Sensations, Inc. v. City of Grand
Rapids, 526 F.3d 291, 302 (6th Cir. 2008).
A. Partial Success
Where “a plaintiff has achieved only partial or limited success, the product of hours
reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive
amount.” Hensley v. Eckerhart, 461 U.S. 424, 436 (1983). However, a court should not reduce
attorney fees “based on a simple ratio of successful claims to claims raised.” Thurman v. Yellow
Freight Sys., Inc., 90 F.3d 1160, 1169 (6th Cir. 1996). Where a plaintiff’s claims for relief involve
a common core of facts or are based on related legal theories, the lawsuit “cannot be viewed as a
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series of discrete claims. Instead the district court should focus on the significance of the overall
relief obtained by the plaintiff.” Hensley, 461 U.S. at 435.
Here, BBC alleged three First Amendment violations, an Equal Protection claim, and a state-
law claim for tortious interference with economic relationships, and prevailed on two First
Amendment claims. Those claims were not all based on the same legal theories, as some of the
provisions of the ordinance that BBC sought to strike down were upheld, while others were struck
down. The district court accordingly found that BBC “received a ‘good’ but not an ‘excellent’ result
in its § 1983 claims.” (Order, R. 64, at 12.) Taking into account BBC’s limited success and the fact
that the unconstitutional provisions were severable, the district court decided to reduce the attorney
fee award by 25% to reflect partial success. In making such a finding, we conclude that the district
court did not abuse its discretion.
B. Billing Increments
Although the City did not raise the issue with the district court, the district court made a
further reduction in the attorneys’ fees award on the basis that BBC’s counsel, Mr. Holzapfel, kept
his time records in quarter-hour increments, including for tasks that the district court believed were
unlikely to occupy a full fifteen minutes of his time. BBC argues that the district court erroneously
held that quarter-hour timekeeping is per se unreasonable. However, the district court noted that
some courts have suggested billing in quarter-hour increments is not per se unreasonable, but
nevertheless found such billing inappropriate in a § 1983 case because of its tendency to generate
bills that are fifteen percent higher than bills based on tenth-of-an-hour billing increments.
Accordingly, the district court split the difference and reduced counsel’s hours by 7.5 percent.
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Because “[i]t remains for the district court to determine what fee is ‘reasonable,’” Hensley, 461 U.S.
at 433, and the district court has discretion to reduce an award of fees “where the documentation of
hours is inadequate,” id., the district court did not abuse its discretion in reducing the attorneys’ fees
awarded on the basis of quarter-hour billing increments.
C. Fees of Toledo Counsel
Finally, BBC asserts that the district court improperly eliminated 13.80 hours of attorneys’
fees generated by local counsel Mr. Heywood by misconstruing his affidavit to conclude that those
hours were not related to instant action. The City does not respond to or dispute this claim on
appeal. Accordingly, we reverse the district court’s reduction of attorneys’ fees with respect to the
13.80 hours billed by local counsel Heywood.
IV. Conclusion
For the foregoing reasons, we AFFIRM in part and REVERSE in part the judgment of
the district court.
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