Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 82 C 2349 - Milton I Shadur, Judge.
Before BAUER, Chief Judge, and CUMMINGS and POSNER, Circuit Judges.
The City of Chicago has appealed from an order that it pay $113,000 in interim attorney's fees to the plaintiffs in this civil rights case. The award of fees was made under the authority of 42 U.S.C. § 1988, which authorizes the award of reasonable attorney's fees to "prevailing" parties. The question we are asked to decide is whether, for purposes of section 1988, you can win by losing. But we cannot reach that question without first satisfying ourselves that the order to pay is appealable.
The suit is a class action under section 1 of the Civil Rights Act of 1871, 42 U.S.C. § 1983. Brought in 1982 on behalf of state criminal defendants and convicts in Chicago, it challenges the constitutionality of the Chicago police department's alleged practice of concealing exculpatory material collected in criminal investigations and lodged in the department's informal "street files." The district court issued a temporary restraining order directing the city to preserve such material pending decision on the plaintiffs' motion for a preliminary injunction. In compliance with this order the city adopted retention procedures that in 1983 the district court by a preliminary injunction required the city to continue and in certain respects amplify. 562 F. Supp. 1067 (N.D. Ill. 1983). Later that year the court awarded the plaintiffs $117,000 (subsequently reduced to $113,000) in attorney's fees for work done to obtain the preliminary injunction. 576 F. Supp. 252 (N.D. Ill. 1983). A year later the court ordered the city to pay the $113,000 immediately, 596 F. Supp. 1060 (N.D. Ill. 1984), and it is from that order that the city appeals.
Meanwhile the city had appealed from the grant of the preliminary injunction, and in 1985 this court reversed. 755 F.2d 560 (7th Cir. 1985). We held that class members who had already been convicted had no standing to seek an injunction against the city's practice; it could do them no good. If they wished to complain about their convictions, their remedy was to apply for habeas corpus. Id. at 571-72. With regard to class members who were awaiting trial, we held that the principle of Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971), barred the injunction; their proper remedy against concealment of exculpatory material would be to raise a constitutional defense in the pending state criminal proceedings. 755 F.2d at 576. We also held, however, that the convicted defendants were entitled to a preliminary injunction (patterned on the temporary restraining order) directing the city to preserve the defendants' files until the defendants could discover whether they had any basis either for mounting a collateral attack on their convictions or for obtaining damages under section 1983 for violation of their constitutional rights. Id. at 573, 577. We remanded the case for the entry of a suitable injunction.
With the case back in the district court, the plaintiffs' lawyers inspected the files but found nothing on which they could base a claim that any member of the class had been convicted in violation of the Constitution. The lawyers say they think the files were "stripped" of all exculpatory materials, but do not propose to try to prove this. Eventually the city moved to dismiss the case for want of prosecution. The motion was granted; and although it seems that no judgment dismissing the suit was actually entered, and although the plaintiffs filed a motion to reinstate the suit, at argument their counsel acknowledged that they did not intend to pursue the case further.
Although the case is effectively over and done with, we cannot ground our jurisdiction of the city's appeal from the order to pay interim fees on the existence of a final judgment winding up the entire litigation. Not only was no such judgment (it seems) entered, but no notice of appeal from it has been filed. The only notice of appeal is from the district court's order, issued back in 1984, directing the city to pay the plaintiffs forthwith the $113,000 in interim attorney's fees that the court had previously awarded. If the 1984 order was not in some sense a final order we have no appellate jurisdiction over it just because, in the interim, the litigation has for all practical purposes come to an end.
Attorney's fees usually are awarded after the final judgment; since there is then nothing else pending in the district court the fee award is a final order in an uncontroversial sense, appealable under 28 U.S.C. § 1291. The order to pay interim fees that was issued in 1984 neither wound up the entire litigation nor was entered after the litigation had been disposed of by some other order.
Another unavailing possibility would be to regard the fee award as a pendant to the preliminary injunction. When an order is properly appealed, another closely related order that would not be appealable independently can be reviewed along with it if that is the most efficient way of proceeding. See Parks v. Pavkovic, 753 F.2d 1397, 1402 (7th Cir. 1985), and cases cited there. This principle might have authorized the city to appeal from the original fee award, provided the appeal could be taken in time to be consolidated with the appeal from the preliminary injunction, which had been issued before the fee award was made. But the city did not attempt to appeal from that award. It waited till the court ordered it to pay the amount awarded. It was then too late to consolidate the fee order with the preliminary injunction - or, if not too late, still no effort at consolidation was made.
That leaves as the only possible route of appeal the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546-47, 93 L. Ed. 1528, 69 S. Ct. 1221 (1949). As conventionally formulated, the doctrine has three elements. The issues pertinent to the correctness of the order must not overlap those in the underlying litigation. The order must be definitive rather than tentative. And the harm it threatens to inflict on the party seeking to appeal must not be preventable by an appeal postponed to the end of the case; in other words, the appellant must show irreparable harm. If there is a unifying theme to the complex rules governing the appeal of interlocutory orders within the federal system, it is that such orders are appealable only when they threaten irreparable harm. See, e.g., Carson v. American Brands, Inc., 450 U.S. 79, 67 L. Ed. 2d 59, 101 S. Ct. 993 (1981).
The three elements are well illustrated by the facts of Cohen, a shareholders' derivative suit. A state statute required the plaintiff in such a suit to post a bond to cover the defendant's costs in the event the defendant won. The district court denied the corporate defendant's motion to require the posting of a bond, holding that the statute was inapplicable to a suit in federal court. The defendant appealed. The Supreme Court held that the order denying the motion was indeed appealable. The denial was final, the issue resolved by it was unrelated to the merits of the derivative suit, and a final judgment in favor of the defendant would not repair the harm should the plaintiff not be good for the defendant's costs.
The Court's brief discussion has spawned an immense jurisprudence of collateral orders. See 15 Wright, Miller & Cooper, Federal Practice and Procedure § 3911 (1976); id., 1986 Supp. Although the test first stated in Cohen remains canonical, as with so many multi-"pronged" legal tests it manages to be at once redundant, incomplete, and unclear. The second "prong" is part of the third. If the order sought to be appealed is not definitive, an immediate appeal is not necessary to ward off harm; there is no harm yet. The first "prong" seems unduly rigid; if an order unless appealed really will harm the appellant irreparably, should the fact that it involves an issue not completely separate from the merits of the proceeding always prevent an immediate appeal?
The incompleteness of the test comes from the fact that it leaves out of account the need to compare the irreparable harm if an immediate appeal is not allowed with the irreparable harm if it is allowed. The Supreme Court's decision in Richardson-Merrell, Inc., v. Koller, 472 U.S. 424, 105 S. Ct. 2757, 86 L. Ed. 2d 340 (1985), which held that orders disqualifying counsel in civil cases are not collateral orders, illustrates this point. Although there can be no doubt that such an order, like an order requiring burdensome discovery, can impose irreparable harm on a party who is not entitled to recover his costs of suit even if he ultimately wins, allowing an immediate appeal would ...