United States District Court, Northern District of Illinois, E.D
November 7, 1984
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
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
1. whether immediate payment is barred by
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
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
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
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
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
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.