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November 18, 1983


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


In the latest chapter of this "Chicago Street Files" case, plaintiffs move under 42 U.S.C. § 1988 ("Section 1988") for entry of an interim award of attorneys' fees and expenses against defendants.*fn1 Because (1) plaintiffs qualify as "prevailing" under Section 1988 regardless of the outcome of the pending appeal*fn2 and (2) an interim fee award is appropriate in light of principles recently announced in Hensley v. Eckerhart, ___ U.S. ___, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), this Court awards interim attorneys' fees for plaintiffs' counsel's already-successful efforts that by definition cannot be negated on appeal.


  In sum, we believe the rule in Wright [v. Jackson,
  522 F.2d 955 (4th Cir. 1975)] is more likely to cause
  delay and wasted effort than prevent it. Therefore,
  district courts in this circuit should proceed with
  attorneys' fees motions, even after an appeal is
  filed, as expeditiously as possible. Any party
  dissatisfied with the court's ruling may then file an
  appeal and apply to this court for consolidation with
  the pending appeal of the merits.

Since that time the Terket rule, allowing (indeed directing) the award of attorneys' fees after an appeal has been taken, has been approved implicitly by the Supreme Court. White v. New Hampshire Department of Employment Security, 455 U.S. 445, 452-53 n. 14, 454, 102 S.Ct. 1162, 1166-67 n. 14, 1168, 71 L.Ed.2d 325 (1982). White was relied on for precisely that proposition by the Court of Appeals for the Ninth Circuit only last month in Masalosalo v. Stonewall Insurance Co., 718 F.2d 955 (9th Cir. 1983), specifically rejecting Wright and electing to follow Terket and the Eighth Circuit's like ruling in Obin v. District No. 9 of the IAM, 651 F.2d 574 (8th Cir. 1981).

This Court would — in accordance with the Terket directive from our Court of Appeals — thus have jurisdiction to consider and rule on plaintiffs' fees motion even had it rendered a final judgment from which an appeal was taken. It perforce has such jurisdiction a fortiori where the appeal is only interlocutory, a situation in which the concept of ouster of the district court's further jurisdiction is far more limited. It is really untenable for County Defendants to argue from older Seventh Circuit law, decided in a wholly different context, that this Court lacks the power our Court of Appeals has squarely and expressly confirmed.*fn3

"Prevailing Party" Status

Section 1988 permits courts to award attorneys' fees to "the prevailing party" in federal civil rights actions. "Prevailing" is defined broadly, and Maher v. Gagne, 448 U.S. 122, 129, 100 S.Ct. 2570, 2574, 65 L.Ed.2d 653 (1980) confirms (in accordance with the Senate Report in enacting Section 1988) a plaintiff can prevail "without formally obtaining relief." Relief need not be substantial but may even provide only a "moral vindication" of the correctness of plaintiff's position. Knighton v. Watkins, 616 F.2d 795, 799 (5th Cir. 1980). When the relief obtained is not formal, "the plaintiffs' lawsuit must be causally linked to the achievement of the relief obtained" and "the defendant must not have acted wholly gratuitously, i.e., the plaintiffs' claims, if pressed, cannot have been frivolous, unreasonable, or groundless." Harrington v. DeVito, 656 F.2d 264, 266-67 (7th Cir. 1981).

Propriety of Interim Fees

Inquiry does not however end with the threshold determination of "prevailing party" status. Hensley teaches (103 S.Ct. at 1940) fee awards may be adjusted upward or downward in light of other factors, especially "the important factor of the `results obtained,'" which is "particularly crucial where a plaintiff is deemed `prevailing' even though he has succeeded on only some of his claims for relief." It goes on (id. at 1941) to invite District Courts to "attempt to identify specific hours that should be eliminated" to conform the fee award to plaintiffs' degree of success. Thus Hensley requires plaintiffs to be compensated for successful but not futile efforts.

Plaintiffs invoke Hensley's fee determination principles to obtain current payment of the amount below which their fee award will not fall even under the worst possible scenario. Because plaintiffs will receive at least that amount in the end, they ask it be awarded now. Their position is unassailable. Plaintiffs are "prevailing" and have engaged in successful efforts for which they will inevitably be compensated. Their attorneys have spent hundreds of hours on the case without pay, and it may be years before a final evaluation of their success in every phase of the case can be made. ...

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