United States District Court, Northern District of Illinois, E.D
November 18, 1983
REUBEN PALMER, ET AL., SUBCLASS A PLAINTIFFS, AND EDWARD NEGRON, ET AL., SUBCLASS B PLAINTIFFS,
CITY OF CHICAGO, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
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.
County Defendants challenge this Court's jurisdiction to
consider the fees issue.
That argument is not even specious — certainly not in this
Circuit, and likely not in any federal court anywhere. Even in
the situation in which a district court has rendered a final
judgment — the classic situation in which an appeal from that
judgment is viewed as ousting the district court of jurisdiction
to do anything further — the specific teaching of our Court of
Appeals is exactly to the contrary as to attorneys' fees awards
in civil rights cases. That subject was discussed at length by
the Court "in the exercise of our supervisory powers" (623 F.2d
at 29) in Terket v. Lund, 623 F.2d 29, 33-34 (7th Cir. 1980).
After an extended analysis of the policy considerations involved,
the Court concluded (id. at 34):
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
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
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
"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.
Plaintiffs are comfortably within the courts' expansive
definition of "prevailing
party" regardless of the outcome of any future proceedings
(including the pending appeal), for they have in fact obtained
very substantial informal relief. Opinion's Findings of Fact
("Findings") 17-20, 562 F. Supp. at 1072-75, establish this action
has caused major and permanent changes in defendants' practices
of retention, and disclosure to criminal defendants, of
potentially exculpatory evidence. Nothing in the pending appeal
questions the accuracy of Findings 17-20. On the contrary, on
appeal both sets of defendants assert their own implementation of
changes (triggered by this lawsuit) as the very predicate for
arguing the Opinion should not have gone beyond their "voluntary"
actions. Thus the uncontroverted Findings confirm the concept
plaintiffs have indeed "prevailed" by obtaining relief
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. Moreover Hanrahan v. Hampton, 446 U.S. 754,
757, 100 S.Ct. 1987, 1989, 64 L.Ed.2d 670 (1980) (per curiam)
expressly authorizes fee awards pendente lite.*fn5
Amount of the Fee Award
Even on a worst-case basis, a substantial amount of plaintiffs'
attorneys' hours to date have supported successful efforts for
which Hensley entitles them to compensation. All their time spent
through October 29, 1982 led up to and triggered the informal
relief described in Findings 17-20. City Defendants themselves
acknowledge in their appeal (Br. 13-14, citations to record
After [then Police Superintendent] Brzeczek's
testimony [on October 29, 1982], the Court adjourned
the hearing to allow the parties to attempt to
resolve the litigation. The CPD immediately issued a
telex to its areas consistent with the
Superintendent's position. The CPD also prepared a
draft detective division notice incorporating new
record-keeping practices implementing the
Superintendent's declared policy.
That Chicago Police Department telex and draft detective division
notice are part and parcel of the informal relief that forms the
basis for this order.
Thereafter plaintiffs rejected defendants' measures as
inadequate to solve the problems they perceived, and they
returned to this Court for resumption of their preliminary
injunction proceedings. Those added efforts were successful
before this Court, but their ultimate success is not yet assured
(because of the pending appeal). In view of that uncertainty,
this order limits its award of reasonable attorneys' fees to
plaintiffs to cover only the efforts expended by their attorneys
through October 29, 1982.
Plaintiffs' attorneys have provided extensive documentation of
their time spent and the purposes to which the time was devoted.
Their documentation includes both a daily time catalog for each
attorney (filed July 29, 1983) and a subject matter breakdown for
each attorney and each phase of the litigation (filed November
15, 1983). In addition they provided copies of their original
timesheets to defendants and now this Court (filed November 16,
Defendants' objections to the fee request are vague and
generalized, alleging for example (City Def. Mem. 8) "pretrial
uncertainties on the part of Plaintiffs' counsel." Plaintiffs'
attorneys however have not submitted fee requests for hours spent
on duplicative efforts,*fn6 and they have invited a further
deduction in the interests of fairness (Motion ¶ 6):
6. Given the fact that Plaintiffs employed two to
four lawyers throughout the litigation, we suggest
that a reduction of hours — perhaps 10% might be
appropriate to account for unavoidable duplication.
This Court finds plaintiffs' attorneys have made "a good faith
effort to exclude from [their] fee request hours that are
excessive, redundant, or otherwise unnecessary, just as a lawyer
in private practice ethically is obligated to exclude such hours
from his fee submission" (Hensley, 103 S.Ct. at 1939-40).
Plaintiffs' submission (including their attorneys' detailed
affidavits as to their qualifications, plus the affidavits of
other attorneys in private practice) also convincingly supports
the reasonableness of the requested hourly rate of $135 for each
lawyer. This Court has given full consideration to all the
factors mandated by our Court of Appeals, and that $135 figure
represents a conservative award for the aggregate of time spent
both in and out of court. Although it is of course permissible
for lawyers and law firms to perpetuate the custom of charging a
premium for in-court time (the legal equivalent of combat pay
during wartime?), it cannot fairly be said to be mandated in
light of the dramatic changes in timekeeping and billing
practices since that custom first arose.*fn7 See Strama v. Peterson,
561 F. Supp. 997, 1000 n. 7 (N.D.Ill. 1983).
It may well be that plaintiffs might ultimately be entitled to
a multiplier for the time included in the current award. That
fact however (and a fortiori the amount of any possible
multiplier) can be better evaluated at a later stage in this
litigation — certainly at least when the pending appeal is
resolved. Again in the interest of conservatism — imposing on
defendants an amount awardable against them in all events — no
multiplier will be awarded now. Judgment is simply reserved on
Under the principles announced in this opinion, the calculation
of the appropriate awards appears to be as follows:*fn8
$135 x 0.9 x 962.80 = $116,980.20
All parties are directed to file on or before December 5, 1983
their statements as to (1) whether that calculation reflects any
arithmetical error, (2) the proper allocation as between City
Defendants and County Defendants and the reasons supporting the
proposed allocation and (3) the proposed payment date (also
including a statement of any justification for requested delay).
This Court will promptly issue an order for payment.
On November 17, 1983 (literally the day before the status
hearing at which this Court's ruling was scheduled to be
announced, and after the foregoing opinion had already been
prepared) both sets of defendants submitted (without asking leave
of court) additional objections to plaintiffs' fees request.
Those submissions thus had not been called to this Court's
attention before the opinion date, and this Court has been
provided no explanation whatever as to why defendants' current
objections were not brought to the Court's attention much
Nonetheless this Court has considered defendants'
belatedly-tendered objections, and it has determined the
foregoing opinion as already drafted dealt with all but three of
defendants' arguments.[fn2a] Those new and unaddressed issues were:
1. Plaintiffs may lose the pending appeal on the
ground there is no "case or controversy" involving
them. If that were to occur, it was not plaintiffs
but some unspecified others who prevailed (City Nov.
17 Mem. 2).
2. Specific hours were spent in unjustifiably
hampering defendants' discovery efforts and should
not be compensated (id. at 3-4).
3. Other unidentified duplication of time was
reflected in plaintiffs' submissions (County Nov. 17
City's first argument deserves short shrift. Plaintiffs'
attorneys represent a class, not just the named plaintiffs. If
the class action is procedurally defective as claimed (and for
current purposes this Court need not address such cases as United
States Parole Commission v. Geraghty, 445 U.S. 388
, 100 S.Ct.
L.Ed.2d 479 (1980) and Sosna v. Iowa, 419 U.S. 393
, 95 S.Ct. 553,
42 L.Ed.2d 532 (1975) on that score), such a defect does not
deprive plaintiffs of success based on informal relief unless the
claim was "frivolous, unreasonable, or groundless," Harrington,
656 F.2d at 267, in the first instance. Because plaintiffs' claim
for preliminary relief beyond the scope of defendants' October
29, 1982 telex order was ultimately successful in this Court,
plaintiffs' claim that triggered that telex (which marks the
watershed for the current award) was a fortiori not "groundless."
As for the other two contentions, under the circumstances
already described this Court might well hold them waived as
untimely filed. Certainly that finding is justifiable — and is
hereby made — as to City Defendants' other arguments under
"Rates" (Nov. 17 Mem. 4-6), for City Defendants do not even
suggest any justification for having previously failed to address
those known questions on the reasonable briefing schedule
established by this Court. However, this Court will grant the
request for a hearing on the second and third numbered claims
identified two paragraphs back. This case is set for a status
conference at 9 a.m. December 9, 1983 to discuss the scheduling
of that hearing.[fn3a]