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Johnson v. Lafayette Fire Fighters Association Local 472

April 5, 1995

JAMES ERIC JOHNSON AND JERRY M. CROKER, PLAINTIFFS-APPELLEES,

v.

LAFAYETTE FIRE FIGHTERS ASSOCIATION LOCAL 472, INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, AFL-CIO-CLC, DEFENDANT-APPELLANT



Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 92-C-60--Allen Sharp, Chief Judge.

Before POSNER, Chief Circuit Judge, ROVNER, Circuit Judge, and MORAN, Chief District Judge. *fn1

MORAN, Chief District Judge.

ARGUED JANUARY 12, 1995

DECIDED APRIL 5, 1995

Appellant Lafayette Firefighters' Association Local 472 (the Union) appeals the award of attorney's fees to appellees James Johnson and Jerry Croker (collectively "plaintiffs"), non-union members of the City of Lafayette fire department, under 42 U.S.C. sec. 1988. The Union argues that plaintiffs' fee petition was untimely under Federal Rule of Civil Procedure 54(d), that plaintiffs are not prevailing parties for the purposes of sec. 1988, that the award of fees in this case was unreasonable, and that because plaintiffs received legal representation from a charitable legal assistance foundation they did not incur "costs" as the term is used in sec. 1988. We affirm.

I.

The City of Lafayette and the Union have negotiated a series of collective bargaining agreements that contain a provision granting the Union the right to collect fair share or agency shop fees from non-union firefighters. In 1986 Johnson wrote the Union informing it of what he believed to be a fair amount for him to pay for his fair share fee. The Union did not respond until it sent letters to Johnson and Croker in 1992 notifying them of their failure to pay the fair share amount in the collective bargaining agreement and threatening them with further action if they failed to pay what was due.

Soon thereafter Johnson and Croker retained the National Right To Work Legal Defense Fund (NRTWF) and filed a complaint in the Northern District of Indiana under 42 U.S.C. sec. 1983, alleging that the fair share provision of the collective bargaining agreement violated their First, Fifth, and Fourteenth Amendment rights by failing to provide the procedural protections set out in the Supreme Court's decision in Teachers' Local Number 1 v. Hudson, 475 U.S. 292 (1986). *fn2 The complaint sought a declaratory judgment that the fair share agreement violated the Constitution; a permanent injunction preventing the Union from enforcing the fair share provision of the collective bargaining agreement; and nominal damages stemming from the Union's demand that plaintiffs comply with the fair share provision.

The parties filed cross-motions for summary judgment. In ruling on the motions the district court held that "[w]hen the complaint was filed . . . it was readily apparent that Local 472 was not in compliance with [Hudson]. It is also apparent that since the filing of this complaint, Local 472 has been engaged in an effort to back and fill with reference to these requirements." The Union's "back and fill" efforts included sending letters to plaintiffs--while the parties were in the process of briefing the pending motions--detailing the Union's expenses for the period in question. The court then found that this correspondence satisfied the Union's financial disclosure obligation under Hudson and, accordingly, granted partial summary judgment in favor of the Union. The court noted that it was plaintiffs' obligation to object to the Union's calculations to effectuate the rest of Hudson's requirements.

Complaining that they were "sandbagged" by the Union's eleventh-hour disclosure, plaintiffs sought an opportunity to show the court that the Union's correspondence did not meet Hudson's financial disclosure requirements. The district court held an evidentiary hearing under Fed.R. Civ.P. 43 and concluded that the Union did not comply with Hudson's requirement of an independent audit. The court set aside its prior grant of summary judgment for the Union and entered judgment for plaintiffs on December 14, 1993. The Union filed a motion for reconsideration, which the court denied on February 28, 1994. The court then denied plaintiffs' prayer for a permanent injunction and for nominal damages.

On April 8, 1994, plaintiffs petitioned for costs and attorneys' fees. The Union filed an objection alleging that the petition was untimely under the federal rule, 54(d)(2)(B), because it requires fee petitions to be filed within 14 days of judgment. The district court rejected that argument, relying on a local rule in the Northern District of Indiana which grants 90 days to file such petitions, and granted the fee petition in part on July 22, 1994. The court accepted the hourly rate and hours spent submitted by plaintiffs, but reduced the award by 25 percent in light of plaintiffs' partial success in the case, yielding a total award of $33,096.96.

The Union is now appealing the fee award but not the underlying Hudson decision. The International Association of Firefighters, AFL-CIO-CLC, has filed an amicus curiae brief in support of Local 472.

II.

A. Timeliness Of the Fee ...


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