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June 30, 1981


The opinion of the court was delivered by: Crowley, District Judge:


This matter comes before the court on plaintiffs' motion for an award of attorneys' fees against the Chicago Housing Authority (CHA). For the reasons stated below, the motion is granted in the amount of $375,375.

This case has had a protracted history. The complaint was filed on August 9, 1966, seeking a declaration that CHA was operating a racially discriminatory public housing system, an injunction against continued discrimination, and other relief the court deemed just and equitable. That resolution of these allegations was hard fought is evident from a citation to reported decisions: 265 F. Supp. 582 (N.D.Ill. 1967); 296 F. Supp. 907 (N.D.Ill. 1969); 436 F.2d 306 (7th Cir. 1970), cert. denied, 402 U.S. 922, 91 S.Ct. 1378, 28 L.Ed.2d 661 (1971); 342 F. Supp. 827 (N.D.Ill. 1972), aff'd, 480 F.2d 210 (7th Cir. 1973); cert. denied, 414 U.S. 1144, 94 S.Ct. 895, 39 L.Ed.2d 98 (1974); 384 F. Supp. 37 (N.D.Ill. 1974); 511 F.2d 82 (7th Cir. 1975); 498 F. Supp. 1072 (N.D.Ill. 1980).

Contending that they have prevailed in their action, plaintiffs have moved for an award of attorneys' fees under the Civil Rights Attorneys' Fees Act of 1976, 42 U.S.C. § 1988 (the Act). The Act did not become effective until October 19, 1976. Yet plaintiffs maintain that § 1988 applies to this case from its inception because the case was pending when the Act became effective. Even so, plaintiffs are not seeking an award for the services provided by all the attorneys. The motion covers only the hours of Alexander Polikoff who has been lead counsel throughout.

Mr. Polikoff's affidavit states that he has spent at least 3,003 hours in this case. He considers that figure conservative and a considerable understatement of the actual number of hours spent. From this court's personal observations the figure, at least since 1976, is conservative in the extreme. Further, Mr. Polikoff has excluded time spent on matters in which plaintiffs did not prevail and time spent against parties other than CHA in this consolidated case. In an affidavit, an experienced attorney familiar with market and billing rates in Chicago states that a reasonable hourly rate for Mr. Polikoff is in the range of $125 to $175 per hour, in light of his skill, education and experience, and the complexity of this case. Thus, the lodestar fee here is between $375,375 and $525,525. Of course, the lodestar may be adjusted up or down, but plaintiffs submit that consideration of the relevant factors for such an adjustment would suggest an upward modification.

The fundamental issue here is the applicability of the Act. There is no question that fees may be awarded in cases pending when the Act became effective. Hutto v. Finney, 437 U.S. 678, 694 n.23, 98 S.Ct. 2565, 2575 n.23, 57 L.Ed.2d 522 (1978); Bond v. Stanton, 555 F.2d 172 (7th Cir. 1977), cert. denied, 438 U.S. 916, 98 S.Ct. 3146, 57 L.Ed.2d 1161 (1978). The issue here is the definition of "pending" and whether this case comes within it.

Both CHA and HUD argue that a summary judgment order issued on July 1, 1969 and a number of other orders in the fall of 1969 finally decided all active issues in this case. At that time, CHA's liability was determined. All other issues before the court, the defendants submit, have been supplemental, concerning the appropriate remedy to enforce the judgment. Relying primarily on Peacock v. Drew Mun. Separate Sch. Dist., 433 F. Supp. 1072 (N.D.Miss. 1977), aff'd sub nom. Andrews v. Drew Mun. Separate Sch. Dist., 611 F.2d 1160 (5th Cir. 1980), and Escamilla v. Santos, 591 F.2d 1086 (5th Cir. 1979), CHA and HUD argue the existence of remedial procedures to enforce a judgment is insufficient to make a case "pending" on the date of enactment of the Act.

In Peacock, the plaintiffs had filed an action in February 1973 challenging defendant's policy prohibiting employment of unwed parents by the school district. In July 1973, a final judgment was entered declaring the policy unconstitutional. The judgment enjoined enforcement of the policy, granted back pay and other affirmative relief, and retained jurisdiction in the court to effectuate the judgment. Plaintiffs had requested attorneys' fees and in October 1973 the district court denied the request. The case was appealed and in February 1975, the court of appeals affirmed the final judgment, including denial of attorneys' fees. By May 1976, the Supreme Court had granted and then dismissed a petition for certiorari. Returning to the district court, the plaintiffs moved in August 1976 to depose the superintendent of the school district to determine back pay amounts. The deposition was permitted and plaintiffs then filed, in September 1976, a Request for Supplemental Relief seeking specific amounts of back pay. This request was pending when the Act became effective and plaintiffs renewed a request for attorneys' fees in November 1976. In December 1976, a consent order was entered resolving the back pay issue.

The Peacock court denied an attorneys' fees award. It was first noted that the Act should be given retroactive effect*fn1 in accordance with Bradley v. Richmond School Bd., 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974). The court viewed Bradley as presenting a situation different from the one before it, however. In Bradley, a fee award was pending resolution on appeal when the statute providing availability of fees was enacted. In Peacock, on the other hand, the fee issue and all other "substantive" issues had been finally resolved before the effective date of the Act. The Peacock court interpreted Bradley and the legislative history to require application of the Act only in cases in which an "active issue" was pending on the enactment date.

An active issue was defined as "a substantive claim upon which a district court has not acted, either in the first instance or on remand, or a substantive claim whose disposition by the district court or Court of Appeals, either is on appeal or is appealable." 433 F. Supp. at 1075. Thus, the court reasoned that the pendency of supplemental proceedings to effectuate a final judgment is not within the definition of an "active issue". Because it considered the Request for Supplemental Relief and the eventual consent decree as "nothing more than provid[ing] for enforcement of defendant's previously established liability", the court held the case was not pending on the effective date of the Act and denied attorneys' fees.*fn2

Plaintiffs respond that Peacock and defendant's other cases are distinguishable because all issues including entitlement to attorneys' fees had been resolved in final orders. Plaintiffs submit that if any aspect of a case is in active litigation on the effective date of the act and if no earlier order resolved all issues in the case, including fees, the entire case is "pending" for purposes of application of the Act. Their position is supported, plaintiffs argue, by three decisions of the Fifth Circuit after Peacock. Taylor v. Sterrett, 640 F.2d 663 (5th Cir. 1981); Robinson v. Kimbrough, 620 F.2d 468 (5th Cir. 1980); Corpus v. Estelle, 605 F.2d 175 (5th Cir.), cert. denied sub nom. Estelle v. Corpus, 445 U.S. 919, 100 S.Ct. 1284, 63 L.Ed.2d 605 (1980).

In Taylor, the Fifth Circuit synthesized many of its decisions on this issue, including Peacock and Corpus. Taylor reaffirmed the rationale of Peacock that when all issues have been finally disposed of, including the attorneys' fees issue, before the effective date of the Act, supplemental proceedings to effectuate a final judgment are independent and do not make the entire case pending. The Taylor court noted that Corpus appeared to be to the contrary because "attorneys' fees were awarded for work done in the supplemental proceedings even though the initial case had been concluded in 1971." 640 F.2d at 669. However, this conflict was only apparent, according to Taylor, because the attorney's fees had not been requested until conclusion of the enforcement proceedings. Id. The Taylor court then concluded that the critical determination is "whether the attorneys' fees issue has been decided for the initial case; if this question has not been decided, then apparently this unresolved issue is sufficient to make the entire case pending." Id. Relying on this interpretation of Corpus and the fees issue, plaintiffs contend this case was pending because the issue of fees has not been decided for the "initial" case which determined the liability of CHA.

Plaintiffs also argue that the 1969 order, which CHA relies on as the final order rendering all subsequent proceedings supplemental, did not finally dispose of all issues. Instead plaintiffs contend the order contemplated a continuing judicial proceeding as did the order in Bolden v. Pennsylvania State Police, 491 F. Supp. 958 (E.D.Pa. 1980). In Bolden, a class action had been reduced to final judgment by a consent decree in June 1974 and defendants argued it was therefore not pending for purposes of applying the Act. The Bolden court rejected the argument because the decree expressly contemplated a continuing judicial proceeding (including an evidentiary hearing), the defendants were still operating under interim goals, and the judicial proceedings had not yet occurred. Thus, the court did not consider the case pending only in the technical sense that the court had continuing jurisdiction to enter necessary and desirable orders, but ...

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