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.
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
"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.
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. ...