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

March 27, 1985


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


Maria Levka ("Levka") moves for an award of attorneys' fees for her lawyers' services on the appeal in this strip search case against the City of Chicago (the "City"). For the reasons stated in this memorandum opinion and order, her motion is denied.

Because the City had admitted the police strip search of Levka had violated her constitutional rights, the jury trial in this Court was limited to damages. From the evidence and the closing argument of Levka's lawyers, the jury was persuaded to award her $50,000. Though this Court viewed that judgment as substantially higher than it would have awarded had it been the trier of fact in a bench trial, its respect for the jury function led it to deny the City's post-trial motions. But our Court of Appeals disagreed and ordered Levka to accept a remittitur reducing the judgment to $25,000 or alternatively to try the case anew (of course the appeal, like the trial, had been limited to the damage issue). 748 F.2d 421 (7th Cir. 1984).*fn1

This Court originally awarded, and Levka has already been paid, $24,475 for her lawyers' fees at the trial stage. Roe v. City of Chicago, 586 F. Supp. 513 (N.D.Ill. 1984) (this Court published that opinion under the "Roe" pseudonym because Levka's counsel had asked that this Court's criticisms of their fee request of nearly twice that amount should not be ascribed to them publicly). No appeal was taken from that award by either litigant.

Now Levka urges her lawyers should be compensated for their work on the City's appeal on the theory she was "the prevailing party in the litigation as a whole" (Pl.Mem. 1). But the myth of the philosopher's stone of transmuting base metal into gold — has long since been exploded. Levka has been paid in full — or more*fn2 — for the fact her lawyers prevailed for her in the trial court to the tune of the original $50,000 verdict. No matter how Levka slices it, she is worse off now, after the appeal, than before it. For that obvious reason this Court rejects the notion she is the "prevailing party" on the appeal. And that — not whether she prevailed "in the litigation as a whole" — is the issue now.

In an effort to make the worse cause appear the better, Levka's counsel cite cases that purportedly support her position. None does. Not one deals with a situation like this one in which (1) the civil rights plaintiff has been fully paid for services in the trial court, (2) only a single issue — the same single issue involved in the trial*fn3 — was presented on appeal and (3) plaintiff lost the appeal.*fn4

Buian v. Baughard, 687 F.2d 859 (6th Cir. 1982) is a square precedent supporting the disallowance of Levka's fees on the appeal. Levka's R.Mem. 1-3 seeks to distinguish Buian by relying on the portion of the Sixth Circuit's analysis that pointed to the fact a fee allowance under 42 U.S.C. § 1988 ("Section 1988") is stated to be as part of "costs," and the losing plaintiff on the appeal there had costs awarded against it (as did Levka in our Court of Appeals). Levka urges our Court of Appeals' reversal in Chesny v. Marek, 720 F.2d 474 (7th Cir. 1983) of this Court's decision, 547 F. Supp. 542 (N.D.Ill. 1982) undercuts that analysis. It remains to be seen whether Chesney's reversal survives in the Supreme Court (where it has been argued and is now awaiting decision). But even if it does (which this Court continues to doubt), the fact that "costs" would then have a different meaning in Section 1988 and in Fed.R.Civ.P. 68 would not control the very different question in this case. Not only the literal language of Section 1988*fn5 but the Supreme Court's teaching in Hutto v. Finney, 437 U.S. 678, 693-98, 98 S.Ct. 2565, 2574-77, 57 L.Ed.2d 522 (1978) tell us an attorneys' fee award under that section is part of costs, and Levka was certainly the loser, not entitled to costs, on the appeal in this case.

None of the Seventh Circuit cases on which Levka purports to rely leads to a different result. In fact Bonner v. Coughlin, 657 F.2d 931, 935-36 (7th Cir. 1981) and (albeit less directly) such cases as Muscare v. Quinn, 680 F.2d 42 (7th Cir. 1982) specifically confirm the analysis and commonsense result reached in this opinion.

Levka's lawyers have now received fees almost exactly equal to Levka's still-substantial damages award. Whether they would have recovered that much for services at trial had the initial jury verdict been $25,000 is an issue they fortunately need not face.*fn6 Their claim for more fees now remains base metal, not gold. Levka's motion, which poses the sole remaining issue in the case is denied.

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