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March 29, 1983


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 The court of appeals, in an unpublished order, affirmed the district court's award in all respects.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 In another unpublished order, the court of appeals remanded the question for disposition here.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 question first.

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
  the circumstances.
  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.

Muscare v. Quinn, 614 F.2d 577, 579 (7th Cir. 1980) ...

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