The opinion of the court was delivered by: Prentice H. Marshall, District Judge.
We are asked in the present cases to award plaintiffs
attorney's fees in connection with defendants' unsuccessful
appeal of the trial court's award of attorney's fees and
plaintiffs' attempts in this court to collect those fees and
interest thereon. Plaintiffs have filed detailed affidavits and
time records in support of their position.
Judge John Powers Crowley awarded plaintiffs $101,000 in
attorney's fees under 42 U.S.C. § 1988 (1976 & Supp. IV 1980) for
prevailing in Preston v. Thompson, No. 78 C 3512 (N.D.Ill.) and
Prisoners of Pontiac v. Thompson, No. 78 C 3006 (N.D.Ill.). See
Preston v. Thompson, No. 78 C 3512 (N.D.Ill. June 30, 1981).
Defendants appealed and plaintiffs cross-appealed, seeking an
enhancement of the award. The court of appeals, in an unpublished
order, affirmed the district court's award in all respects.
Preston v. Thompson, 681 F.2d 821 (7th Cir. 1982) ("Preston II").
Subsequently, plaintiffs filed a motion in the court of appeals
for an award of attorney's fees on appeal or in the alternative
for remand to determine such fees. In another unpublished order,
the court of appeals remanded the question for disposition here.
Preston v. Thompson, Nos. 81-2237 & 81-2360 (7th Cir. July 21,
1982) ("Preston III"). However, in its opinion the court of
appeals noted two considerations which it felt we should consider
the question on remand. The first of these considerations was the
length of plaintiffs-appellees' initial brief on appeal.*fn1
Plaintiffs' brief ran to 79 pages, some 29 pages over the limit
contained in Fed.R.App.P. 28(g) and some 54 pages in excess of
the length of defendants-appellants' opening brief. The brief
included a 45 page statement of facts. The court of appeals
stated that it "regard[ed] plaintiffs' principal brief as prima
facie evidence that the amount of time plaintiffs' attorneys
expended on this appeal exceeded the reasonable limits of
compensable time." Preston III, slip op. at 3. The court
suggested that the issues raised in the appeals "were quite
straightforward" and that the brief was "disproportionate" to
plaintiffs' twofold task of showing that the district court's
findings of fact were not clearly erroneous and that the award
was not an abuse of the district court's discretion. Id.
In the instant motion, plaintiffs have requested fees for five
phases of this litigation that followed Judge Crowley's award of
attorney's fees: litigation in the district court over the
questions whether the award should be stayed pending appeal and
if so, whether defendants should be required to post a bond; the
appeal itself; certain post-appeal work in the court of appeals,
including a motion to amend the court's May 24, 1982 opinion, and
the motion for fees on appeal; litigation in the district court
concerning the collection of the fees award and interest thereon;
and the present motion. Because the bulk of the compensable time
claimed relates to the appeal itself, we will consider that
It is settled law in this circuit that time spent litigating
and establishing an entitlement to attorney's fees is itself
compensable under § 1988. Bond v. Stanton, 630 F.2d 1231 (7th
Cir. 1980). "`It would be inconsistent with the purpose of [§
1988] to dilute a fees award by refusing to compensate the
attorney for the time reasonably spent in establishing and
negotiating his rightful claim to the fee.'" Id. at 1235 (quoting
Lund v. Affleck, 587 F.2d 75, 77 (1st Cir. 1978)). Denying
compensation for time spent obtaining fees would result in
forcing attorneys into extensive litigation in order to gain any
fees, effectively reducing any eventual award. Bond, 630 F.2d at
1235. This would encourage defendants in cases in which fees were
available to "`dissipate the incentive provided by an award
through recalcitrance and automatic appeals.'" Gagne v. Maher,
594 F.2d 336, 344 (2d Cir. 1979) (quoting Souza v. Southworth,
564 F.2d 609, 614 (1st Cir. 1977)), aff'd, 448 U.S. 122, 100
S.Ct. 2570, 65 L.Ed.2d 653 (1980).
In addition, time expended on appeal is compensable under §
1988. See Muscare v. Quinn, 680 F.2d 42, 45 (7th Cir. 1982)
("Muscare III"); Bond, 630 F.2d at 1234-35; Bonner v. Coughlin,
657 F.2d 931, 935 (7th Cir. 1981). The factors to be applied in
determining the reasonableness of a fee for time spent on appeal
are the same as those applied at the trial level. See Hampton v.
Hanrahan, 600 F.2d 600, 643 (7th Cir. 1979), rev'd on other
grounds, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980).
These factors include:
1) The time and labor required, the novelty and
difficulty of the questions involved, and the skill
requisite to perform the legal service properly.
2) The likelihood, if apparent to the client, that
the acceptance of the particular employment will
preclude other employment by the lawyer.
3) The fee customarily charged in the locality for
similar legal services.
4) The amount involved and the results obtained.
5) The time limitations imposed by the client or by
6) The nature and length of the professional
relationship with the client.
7) The experience, reputation, and ability of the
lawyer or lawyers performing the services.
8) Whether the fee is fixed or contingent.