Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 83 C 3091 -- Charles P. Kocoras, Judge.
Cummings, Chief Judge, and Cudahy and Flaum, Circuit Judges.
Plaintiff, Marvin Hamilton, filed this Section 1983 suit in the Northern District of Illinois, alleging that defendants, Cook County and officials of the Cook County State's Attorney's Office, violated his civil rights while bringing criminal charges against him. The district court granted summary judgment for defendants and, more than five months later, granted defendants' motion for $1,430 in attorneys' fees. Plaintiff appeals pro se. We remand to the district court for further findings.
Prior to filing this suit, plaintiff was apparently self-employed in the business of interviewing and selecting persons to work as models for various clients. On July 28, 1981, while on probation from another conviction, plaintiff was arrested and charged with taking indecent liberties with a child. Plaintiff alleges that six days after he was arrested, the complaining witness, an unsuccessful applicant for a model-trainee position, signed a statement recanting her story. Plaintiff attached to his amended complaint a receipt for $100 that he had paid to the girl's father. Plaintiff further alleges that the assistant state's attorneys in the Cook County State's Attorney's Office later threatened the complainant and her family with incarceration if they attempted to change their stories.
After his indictment, plaintiff appeared ready for trial on numerous occasions in the fall of 1981, but his trial was repeatedly continued, in part because the complainant and her family failed to appear. The complainant and her mother finally testified, on January 13, 1982, after arrest warrants were issued against them for failure to honor subpoenaes. Plaintiff was convicted of the misdemeanor of contributing to the sexual delinquency of a minor. On February 10, 1982, however, the state trial judge granted plaintiff's motion for a new trial. The case was then continued at least five times until August 8, 1982, when the state's attorney's office nolle prosequied the charge. Plaintiff filed the instant suit on May 4, 1983.
Plaintiff first argues that the district court erred by granting summary judgment for defendants. We do not reach this issue because plaintiff did not file a timely notice of appeal. The district judge's summary judgment order was entered on June 15, 1984, pursuant to Rule 58, Fed. R. Civ. P., and the order granting attorneys' fees was entered on December 28, 1984. Plaintiff filed a notice of appeal on January 24, 1985. As this was more than thirty days after the grant of summary judgment, it was ineffective to bring up the entire case for review. Exchange National Bank v. Daniels, 763 F.2d 286, 292-95 (7th Cir. 1985); Fed. R. App. P. 4(a). Consequently, we are without jurisdiction to review the grant of summary judgment for defendants. The only issue properly before us is the district court's award of attorneys' fees.
In the English system, the losing side ordinarily pays the winner's attorneys' fees; under the American rule, by contrast, each side pays its own attorney. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 269, 44 L. Ed. 2d 141, 95 S. Ct. 1612 (1975). However, there are three major exceptions to the American rule. Id. at 258-59. First, when there is a common fund obtained for the benefit of plaintiffs and numerous third parties, fees are paid from the fund rather than out of the pockets of the named plaintiffs. See Boeing Co. v. Van Gemert, 444 U.S. 472, 478-82, 62 L. Ed. 2d 676, 100 S. Ct. 745 (1980). Second, a party is required to pay the other side's attorneys' fees for any actions undertaken in bad faith. See Benner v. Negley, 725 F.2d 446, 449 (7th Cir. 1984). Finally, fees are allowed in suits under statutes in which Congress has specifically authorized fee shifting. In federal courts, this last exception may eventually swallow the American rule for there are now more than one-hundred thirty statutes authorizing payment of attorneys' fees. See Marek v. Chesny, 473 U.S. 1, 105 S. Ct. 3012, 3035-39, 87 L. Ed. 2d 1 (1985) (Appendix to Opinion of Brennan, J., dissenting); 8 Att'y Fee Awards Rep., April 1985, at 2-3. One of the more important fee-shifting statutes is the Civil Rights Attorney's Fees Awards Act of 1976, Pub. L. 94-559, § 2, 90 Stat. 2641 (1976), now codified at 42 U.S.C. § 1988.
Congress enacted this statute to encourage enforcement of civil rights laws without creating another federal bureaucracy. S. Rep. No. 1011, 94th Cong., 2d Sess. 4, reprinted in 1976 U.S. Code Cong. & Ad. News at 5911. The act was intended to encourage private litigants to serve the public interest by bringing suit to vindicate civil rights. Id. at 2, reprinted in 1976 U.S. Code Cong. & Ad. News at 5910; H.R. Rep. No. 1558, 94th Cong., 2d Sess. 1-3, reprinted in 1976 U.S. Code Cong. & Ad. News at 5913. However, Congress did not wish to encourage every suit that could be brought under the Civil Rights Act. It decided that plaintiffs could recover fees only if they prevailed. See 42 U.S.C. § 1988.
But a statute awarding fees only to prevailing plaintiffs, and not to prevailing defendants, while certainly within Congressional power, would provide incentives to bring suit without penalizing litigants who bring suits solely for harassment with no hope for success. See Rowe, Predicting the Effects of Attorney Fee Shifting, 47 Law & Contemp. Probs. 137, 147 (1984). Meritless lawsuits clog court dockets, delaying the resolution of meritorious suits and diverting judicial resources that could be devoted to worthwhile litigation. Courts exist to settle disputes, not to settle scores. Suits filed with no real hope of victory needlessly bring defendants through the costly and agonizing uncertainty of defending suit. When these defendants are public officials, their professional reputations are threatened, and they may be induced to re-examine their calling to public service. Congress recognized these dangers in providing fees not just to prevailing plaintiffs but to prevailing parties. See 42 U.S.C. § 1988.
On the other hand, Congress recognized that if losing plaintiffs were required to pay the other side's fees as a matter of course, victorious defendants would be made whole but litigants would be discouraged from bringing even meritorious claims. See Rowe, supra, at 153-54. In civil rights cases, the fees can run higher than the amount in controversy, see, e.g., Marek v. Chesny, 473 U.S. 1, 105 S. Ct. 3012, 3014, 3018, 87 L. Ed. 2d 1 (1985), yet the benefit that the public receives from clarification of a public official's duties can be enormous. See Lampher v. Zagel, 755 F.2d 99, 105 (7th Cir. 1985). Lawsuits are always precarious. Even the most watertight case can fail because of the absence of a few key witnesses. Consequently, fees are imposed on non-prevailing plaintiffs only when the suit is frivolous, unreasonable, or without foundation. Christiansburg Garment v. Equal Employment Opportunity Commission, 434 U.S. 412, 421, 54 L. Ed. 2d 648, 98 S. Ct. 694 (1978). Ignorance of the law, of course, is no excuse; it is the responsibility of counsel to know the law and to know whether a claim is clearly foreclosed by precedent. See Werch v. City of Berlin, 673 F.2d 192, 195 (7th Cir. 1982).*fn1 Fees can be imposed even though the losing plaintiff did not act in subjective bad faith. Christianburg, 434 U.S. at 421.
There is no question that the stakes are high in fee cases. The civil rights statutes will not be enforced adequately if the risk of having to pay the fees of both sides' attorneys deters plaintiffs with valid claims from bringing suit. But the power of the courts to remedy civil rights violations is severely restricted if inordinate delays, due in part to dockets crowded with frivolous suits, become commonplace.
Given the costs of an incorrect fees decision, a district court must act with care in awarding fees to prevailing defendants. Overly generous and inappropriate fee decisions against plaintiffs will discourage proper suits, while failure to award fees to defendants when appropriate will undercut any deterrent effect of prior fee decisions, and the number of frivolous filings will ...