Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 78 C 1897-John F. Grady, Judge.
Before WOOD, Circuit Judge, ESCHBACH, Circuit Judge, and CAMPBELL, Senior District Judge.*fn*
CAMPBELL, Senior District Judge.
The issue in this case is whether district courts have the power to award attorney's fees and costs to parties who successfully oppose a petition for a writ of certiorari to the United States Supreme Court. Originally, plaintiffs/appellees, Dennis M. Young and Michael Moran, brought suit against Local 17 of the International Association of Heat & Frost Insulators & Asbestos Workers (Local 17) in the United States District Court for the Northern District of Illinois, Judge John F. Grady presiding. Plaintiffs alleged they were wrongfully expelled from Local 17 in violation of 29 U.S.C. 411 of the Labor-Management Reporting & Disclosure Act of 1959 (LMRDA) (see generally 29 U.S.C. 401, et seq.). On September 1, 1978, the district court entered an order finding that plaintiffs were indeed wrongfully expelled from the union according to the relevant provisions enumerated in 29 U.S.C. 411.
Local 17 appealed this ruling. The plaintiffs above failed to file a brief or appear on appeal. Nonetheless, on February 15, 1983 this court entered an unpublished order pursuant to Circuit Rule 35 affirming Judge Grady's ruling that plaintiffs were wrongfully expelled from union membership.
Approximately five months later, on June 24, 1983, Local 17 filed a petition for a writ of certiorari to the United States Supreme Court. Once again, plaintiffs did not prepare a response. Yet on September 3, 1983 the Clerk of the Supreme Court mailed a letter to Jeffrey Cole, Esq., plaintiffs' counsel at trial on the issue of damages, which states in part:
"The Court has directed this office to request that a response be filed in this case. Forty printed copies of your response . . . should reach this office on or before October 3, 1983." (See Appendix of brief of defendant/ appellant, Local 17, p. 16.)
On September 9, 1983, Mr. Cole responded to the Clerk by stating he had discussed the matter with plaintiff Moran and that Moran "...was emphatic in telling me that he did not desire me to file a brief and that the plaintiffs would not incur a single cent in responding to the Union's petitioner..." Mr. Cole closed his letter by stating, "With your permission, I shall call early next week to discuss the matter ... with you ..." (See Appendix of defendant/appellee, pp. 18-19.) Apparently, Mr. Cole called the Clerk and was convinced to file a response. In October 1983 appellees filed a brief in opposition to the petition for writ of certiorari. On November 14, 1983, Local 14's petition for a writ of certiorari was denied. Approximately one month later, on December 12, 1983, Mr. Cole filed a petition in the United States District Court for the Northern District of Illinois seeking attorney's fees and costs totaling $5,255.58 for responding to the petition for certiorari. Almost a year later, on October 3, 1984, Judge Grady of the Northern District of Illinois ordered Local 14 to pay Mr. Cole the requested $5,255.58.
While defendant contends the district court did not have the authority to assess counsel fees for written work performed before the Supreme Court, the case law indicated otherwise. In Perkins v. Standard Oil Company of California, 399 U.S. 222, 90 S. Ct. 1989, 26 L. Ed. 2d 534 (1970), the Supreme Court affirmed district court authority to award attorney's fees for work done at the Supreme Court level under § 4 of the Clayton Act.*fn1 In Perkins, the petitioner filed an application for attorney's fees in the District Court for the District of Oregon for appellate work performed din both the Court of Appeals and the Supreme Court. At the Supreme Court level, he had succeeded in resisting a petition for writ of certiorari.
The district court denied the application. On appeal the Court of Appeals granted fees for work performed in its court, yet it denied fees for work done in the Supreme Court. The court of Appeals reasoned that because the Supreme Court did not mention fees in its decision, the award of such fees was intended to be precluded. The Supreme Court rejected this interpretation stating:
"The amount of the award for such services should, as a general rule, be fixed in the first instance by the District Court, after hearing evidence as to the extent and nature of the services rendered. The Court of Appeals was in error in interpreting our mandate as precluding the award of such fees for services performed in connection with the litigation in this Court. Our failure to make explicit mention in the mandate of attorneys' fees simply left the matter open for consideration by the District Court, to which the mandate was directed." [Citation omitted.] (see Perkins, 399 U.S. at 223, 90 S. Ct. at 1990.)
While Perkins concerned the allowance of attorney's fees pursuant to § 4 of the Clayton Act, we believe the flexibility demonstrated by the Supreme Court in Perkins in allowing district courts to award attorneys fees for Supreme Court work is applicable to prevailing plaintiffs in LMRDA cases like the one sub judice. The case of Hall v. Cole, 412 U.S. 1, 93 S. Ct. 1943, 36 L. Ed. 2d 702 (1973), establishes that it is within district court discretion to award attorneys's fees in LMRDA cases for prevailing plaintiffs.
under § 102 of the LMRDA falls squarely within the traditional equitable power of federal courts to award such fees whenever "overriding considerations indicate the need for such a recovery." Mills v. Electric Auto-Lite Co., supra, 396 U.S., at 391-392, 90 S. Ct. at 625 ... § 102 of the LMRDA broadly authorizes the courts to grant "such relief (including injunctions) as may be appropriate." 29 U.S.C. § 412. Thus, § 102 does not "meticulously detail the remedies available to a plaintiff," and we cannot fairly infer from the language of that provision an intent to deny to the courts the traditional equitable power to grant counsel fees in "appropriate" situations ... Indeed, any attempt on the part of Congress to spell out all of the remedies available under § 102 would create the "danger that those [remedies] not listed might be proscribed with the result that the courts would be fettered in their of the case.'" 412 U.S., at 9-11, 93 S. Ct., at 1948-49.
We therefore hold that the allowance of counsel fees to the successful plaintiff in a suit brought under § 102 of the LMRDA is consistent with both the Act and the historic equitable power of federal courts to grant such relief in the ...