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United States District Court, Northern District of Illinois, E.D

November 7, 1984


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


On November 18, 1983 (in the "Opinion," 576 F. Supp. 252) this Court determined plaintiffs were entitled under 42 U.S.C. § 1988 ("Section 1988") to interim attorneys' fees of $116,980.20, an amount later reduced (by a December 28 oral bench ruling) to $112,606.20.*fn1 In response to this Court's invitation for the parties' submissions as to the proper time for payment, the City of Chicago ("City") opposes immediate payment, claiming:

    1. Interim fee payments may be ordered only
  where a defendant's liability on the merits is
  clearly established after full litigation. Here
  the case has reached only the stage of a
  preliminary injunction (ordered by this Court at
  562 F. Supp. 1067), now on appeal.

    2. If plaintiffs lose that pending appeal, they
  will no longer be prevailing parties and thus no
  longer entitled to attorneys' fees.

    3. Immediate payment is barred by the consent
  decree in Evans v. City of Chicago, No. 77 C 4119
  and Baylark v. City of Chicago, No. 79 C 1939
  (N.D.Ill. May 31, 1984) ("Evans-Baylark").

    4. Plaintiffs' fees award is unenforceable
  absent a determination under Fed.R.Civ.P.
  ("Rule") 54(b), and no such determination should
  be made under the circumstances of this case.

For the reasons stated in this memorandum opinion and order, this Court finds none of City's objections persuasive and therefore orders immediate payment.

Proper Grounds for Objection

City's first two objections are really a back-door effort to obtain reconsideration of the Opinion. Each was disposed of when this Court expressly determined (576 F. Supp. at 253-54) plaintiffs were prevailing parties and were entitled to attorneys' fees regardless of the outcome of the current appeal or the rest of the litigation. There is no need to repeat that analysis. This opinion therefore restricts its discussion to:

    1. whether immediate payment is barred by
  Evans-Baylark; and

    2. whether a determination under Rule 54(b) is
  a prerequisite to an order for immediate payment.

Nonapplicability of Evans-Baylark

Evans-Baylark has determined the sequence to be followed in payment of tort judgments against City. It contains a provision for attorneys' fees to be paid along with the judgments themselves, but Judge Grady has specified that provision applies only to attorneys' fees awarded in conjunction with damage awards, adding (Decree I.2 n. *):

  However, in cases which do not involve claims for
  money damages, such as cases where only
  injunctive or declaratory relief is sought,
  payment of a fee award out of sequence would not
  result in a preference of the attorney over the
  client. While this court assumes that for
  purposes of simplicity and uniformity attorneys
  fees awards in cases not involving money damages
  will ordinarily be paid in the same sequential
  order established in this decree for tort
  judgments, we nonetheless recognize that another
  court may in its discretion order current or
  immediate payment of attorneys fees in non-money
  damage cases in appropriate circumstances.*fn2

  This action falls squarely within that last clause. It plainly presents an "appropriate circumstance" for immediate payment. As the Opinion reflects, the fees awarded by this Court were earned in pursuit of injunctive relief rather than money damages,*fn3 and thus there is no question of favoring lawyer over client.

Most importantly, immediate payment will fulfill the purpose of Section 1988: to encourage — and indeed in this case actually enable — private enforcement of civil rights. Lynch v. City of Milwaukee, 747 F.2d 423, 426 (7th Cir. 1984), quoting earlier opinions by our Court of Appeals. Where as here the fee award is consequent on plaintiffs' having obtained injunctive relief in vindication of constitutional rights, the Supreme Court's language in Newman v. Piggie Park Enterprises, 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968) (though spoken of actions under Title II of the Civil Rights Act of 1964) has special force:

  If [a plaintiff] obtains an injunction, he does
  so not for himself alone but also as a "private
  attorney general," vindicating a policy that
  Congress considered of the highest priority. If
  successful plaintiffs were routinely forced to
  bear their own attorneys' fees, few aggrieved
  parties would be in a position to advance the
  public interest by invoking the injunctive powers
  of the federal courts.*fn4

And the same principles should apply in determining the time for, as well as the right to, interim payment of fees. As the Opinion said (576 F. Supp. at 254):

  Plaintiffs invoke Hensley's [v. Eckerhart,
  461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)] 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.

If Hanrahan's sanction of "the award of counsel fees pendent lite" (446 U.S. at 757, 100 S.Ct. at 1989) and "the interim award of counsel fees" (id. at 758, 100 S.Ct. at 1989) were to mean merely a declaration of future rights and not a right to immediate compensation, it would be an empty promise. That kind of purposelessness cannot be ascribed to Congress or to the Supreme Court.*fn5

Nature of Order for Immediate Payment

City cites the rule that a judgment may not be executed upon unless it is final (International Controls Corp. v. Vesco, 535 F.2d 742, 744-45 (2d Cir. 1976)) and suggests this Court must therefore certify any payment order under Rule 54(b). But Mulay Plastics, Inc. v. Grand Trunk Western Railroad Co., 742 F.2d 369, 371 (7th Cir. 1984) teaches Rule 54(b) applies only to judgments or orders relating to "substantive claims" in the complaint.*fn6 Section 1988 attorneys' fees awards are collateral to and "uniquely separable" from the merits (White v. New Hampshire Department of Employment Security, 455 U.S. 445, 452, 102 S.Ct. 1162, 1166, 71 L.Ed.2d 325 (1982)) and are therefore not subject to certification under Rule 54(b). Mulay, 742 F.2d at 371; Cheng v. GAF Corp., 713 F.2d 886, 888-89 (2d Cir. 1983); Swanson v. American Consumer Industries, Inc., 517 F.2d 555, 560-61 (7th Cir. 1975). Thus the "finality" of an attorneys' fee award under Section 1988 (including perhaps Cohen "finality," see n. 6) is to be determined solely under 28 U.S.C. § 1291 ("Section 1291").

Because of the apparent confusion in City's memorandum in these respects, this Court wants to make it plain today's order is immediately effective and the fees are payable now. To that end some brief discussion of the distinction between an order and a final judgment may be in order.

Rule 54(a) defines "judgment" for purposes of the Rules as "a decree" or "any order from which an appeal lies." With courts of equity no longer separate from courts of law, "decrees" are not distinguished from appealable orders for purposes of that definition. Appealable orders for Rule 54(a) purposes fall into two categories:

    1. "final decision[s]" from which an appeal is
  permitted under Section 1291 and

    2. interlocutory orders appealable under
  28 U.S.C. § 1292 ("Section 1292").

10 Wright, Miller & Kane, Federal Practice & Procedure: Civil 2d § 2651, at 9 (1983).

Interim attorneys' fees awards are clearly not among the interlocutory orders enumerated in Section 1292. Yakowicz v. Commonwealth of Pennsylvania, 683 F.2d 778, 782 n. 8 (3d Cir. 1982); Hastings v. Maine-Endwell Central School District, 676 F.2d 893, 896 (2d Cir. 1982). They may also not be "final decisions" for purposes of Section 1291 because of the prospect of an additional attorneys' fees award after final disposition of the case. Hastings, 676 F.2d at 895-96; Yakowicz, 683 F.2d at 782. Accordingly the interim fee payment ordered by this Court today may not (unless the Cohen doctrine applies, see n. 6) be an appealable "final decision." That however does not preclude its full enforceability: It is after all a court order, with which parties litigant are bound to comply.

This Court unquestionably has jurisdiction under Section 1988, as interpreted by Hanrahan, 446 U.S. at 757-58, 100 S.Ct. at 1989-90, to order the payment of attorneys' fees pendente lite. And Mulay makes plain that any nonappealability of such an order does not prevent its current enforcement.*fn7

Mulay was a consolidated appeal from two pendente lite awards:

    1. an award by this Court of sanctions for
  failing to produce relevant evidence in
  connection with a summary judgment motion (102
  F.R.D. 130, 133-35); and

    2. an award by Judge Prentice Marshall of
  attorneys' fees and expenses on a motion to
  compel discovery.

In the course of ruling both awards non-appealable, our Court of Appeals recognized they were immediately enforceable (742 F.2d at 370). It said immediate payment of sanctions would not inflict irreparable harm on the party charged. Id. If the sanctions award were overturned on appeal at some point in the future, the money would simply be repaid to the party charged. In conceptual legal terms the current award of attorneys' fees is indistinguishable from the Mulay awards; and if the magnitude of the amount and the identity of the payees bring Cohen considerations into play (see n. 6), that is for the Court of Appeals to determine.

It should again be emphasized this order for current payment of interim attorneys' fees poses no unfairness to City. As the Opinion (576 F. Supp. at 255) makes abundantly clear, City's own acknowledgements before this Court and (on its current appeal) before the Court of Appeals show the current conservative award — containing no multiplier — represents the lowest fee award to which plaintiffs could be entitled even on a "worst case" scenario as to what remains in the litigation.


Immediate payment of interim attorneys' fees is both appropriate and necessary to fulfill the purpose of Section 1988. Neither Evans-Baylark nor the "final judgment" rule poses an obstacle to an order for immediate payment. City is therefore ordered to pay plaintiffs $112,606.20 as attorneys' fees pendente lite on or before November 19, 1984.

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