United States District Court, N.D. Illinois, Eastern Division
August 9, 2005.
DOROTHY GAUTREAUX, et al., Plaintiffs,
THE CHICAGO HOUSING AUTHORITY, Defendants.
The opinion of the court was delivered by: MARVIN ASPEN, Chief Judge, District
MEMORANDUM OPINION AND ORDER
Presently before us is the Gautreaux Plaintiffs' motion for an
award of attorneys' fees and related expenses against Defendant
Chicago Housing Authority ("CHA") for the period from August 1,
2001 to July 31, 2003. We previously determined that Plaintiffs
are "prevailing parties," who are entitled to recover attorneys'
fees, under 42 U.S.C. § 1988. Gautreaux v. CHA,
523 F. Supp. 684, 690 (N.D. Ill. 1981) (affirmed by Gautreaux v. CHA,
690 F.2d 601, 614 (7th Cir. 1982)). Subsequently, we awarded
Plaintiffs attorneys' fees and costs on several additional
occasions. Most recently we entered orders on April 2, 2002,
covering work from September 25, 1999 to July 31, 2001, and on
June 27, 2000, covering work from October 16, 1996 to September
24, 1999. The CHA opposes the Plaintiffs' present motion for
attorneys' fee and costs for two reasons. First, the CHA argues
that two recent judicial decisions, Buckhannon Bd. v. W. Va.
Dep't of Health & Human Res., 532 U.S. 598 (2001), and Alliance
to End Repression v. Chicago, 356 F.3d 767 (7th Cir. 2004),
preclude an award of fees. Secondly, the CHA opposes Plaintiffs'
motion on the grounds that the fee request is excessive and
First, the CHA argues that the Supreme Court case Buckhannon
and the recent Seventh Circuit case Alliance preclude an award
of fees. In Buckhannon, the Supreme Court held that a party
must have obtained a judgment on the merits, consent decree, or
other judicially-sanctioned change (such as a settlement order) to qualify as a "prevailing party" entitled to
attorney's fees. 532 U.S. 605-06. In doing so, it rejected the
"catalyst theory," under which some courts had held that a
defendant's voluntary change in conduct induced by the lawsuit
qualifies a plaintiff to be a "prevailing party" entitled to
In Alliance, the Seventh Circuit considered the application
of Buckhannon to post-decree litigation. In Alliance, the
plaintiffs had won a consent decree against the City of Chicago
in 1981 related to the Chicago Police Department's investigative
activities that violated class members' First Amendment rights.
Based on the consent decree, the plaintiffs were considered
"prevailing parties" entitled to attorneys' fees under § 1988.
Between 1994 and 2001, the plaintiffs brought two actions for
contempt of the decree, which were unsuccessful. In 1997, the
City sought modifications to make the decree restrictions less
onerous, which were granted on appeal. In granting the
modifications on appeal, the Seventh Circuit observed that the
City had complied with the decree for the entire period of almost
two decades in which it had been in force, and that social
conditions had changed so far as to make much of the decree
obsolete. 356 F.3d at 769. The plaintiffs in Alliance then
sought attorneys' fees for these two failed proceedings for
contempt of the decree, the failed opposition to the
modification, and for monitoring compliance of the decree, on the
basis of its "prevailing party" status obtained when the decree
was entered. In denying attorney's fees, the Seventh Circuit held
that the contempt and modification proceedings were "clearly
separable" from the entry of the consent decree, for which the
plaintiffs had experienced "not even a disappointing partial
success" and "nothing but loss" for a decade. See id. at
770-71. As to this separate post-decree work and proceedings,
plaintiffs could not be considered "prevailing parties" under §
1988 and, therefore, were not entitled to fees. Id.
The present case is distinct from Alliance in that the
post-decree proceedings and related work for which fees are
presently sought are not "clearly separable" from the original
judgment order. See Gautreaux, 690 F.2d at 604, 605 ("It is more consistent with
the history of this particular lawsuit . . . and with the nature
of equitable proceedings in general not to divide a continuously
active equitable case into a host of separate smaller matters);
see also Gautreaux, 523 F. Supp. at 689, 690. Unlike
Alliance, this case involves post-judgment work and proceedings
that are all part of one active equitable case, in which
compliance has always been at issue, and modifications and
clarifications of the original judgment order must continuously
be made to account for changing conditions and circumstances.
Indeed, as the Seventh Circuit has recognized, the heart of this
unique litigation lies in the present remedial stage, "where the
parties struggle, often for years, over the scope and details of
injunctive relief." See Gautreaux, 690 F.2d at 610. We
therefore find Alliance inapplicable to this case and reject
the CHA's argument that Alliance and Buckhannon preclude an
award of attorneys' fees in this case.
Next, CHA argues that Plaintiffs' fee request is inadequate.
Attorneys fees are properly calculated by multiplying "the number
of hours the attorney reasonably expended on the litigation times
a reasonable hourly rate." Mathur v. Bd. of Trs. of S. Ill.
Univ., 317 F.3d 738, 742 (7th Cir. 2003). CHA claims that the
Plaintiffs have billed an unreasonable number of hours by
including time spent by multiple attorneys on intra-office
communications and conferences with third parties, and by
including time spent on matters not within the scope of the
Initially, we observe that the present fee request is
comparable to the two prior agreed orders approving Plaintiffs'
fees, dated April 4, 2002 and June 27, 2000. On April 4, 2002, we
entered an Order granting Plaintiffs $841,020 for 3,753 hours
billed in a twenty-two month period (an average of 171 hours
billed per month) at rates of $130 to $360 per hour. On June 27,
2000, we entered an Order granting Plaintiff's $976,440 for 3,137
hours billed in a thirty-five month period (an average of 90
hours billed per month) at rates of $120 per to $360 per hour.
Presently, Plaintiffs have requested payment of $724,732*fn1 for 2,574 hours billed in a twenty-four month
period (an average of 107 hours billed per month) at rates of
$200 to $400 per hour.
We find that the Plaintiffs' requested hours are reasonable. By
eliminating billing for hours spent by more than two attorneys in
consultation, and by reducing hours spent in Gautreaux Team
Meetings by fifty percent, the Plaintiffs have exercised proper
billing judgment. Although the CHA takes issue with the use of
multiple attorneys in this case, courts in this circuit have
found that the use of two or more attorneys is appropriate in
cases less complex than this matter. Kurowski v. Krajewski,
848 F.2d 767, 776 (7th. Cir 1988) (recognizing the propriety and
benefits of using multiple lawyers, including that the "use of
two (or more) lawyers . . . may well reduce the total
expenditures by taking advantage of division of labor"); Bohen
v. City of E. Chicago, 666 F. Supp. 154, 157 (N.D. Ind. 1987)
(observing that "[t]wo lawyers are the minimum in much private
litigation."). Additionally, Plaintiffs have categorized each
billing entry to show that the underlying task is within the
scope of the consent decree and is consistent with the past
orders awarding fees to the Plaintiffs.
Finally, CHA claims that the Plaintiffs have not adequately
proven the reasonableness of their proposed market rates, and
that the rates are excessive. The burden of proving the proper
market rate is on the party seeking the fee award. Uphoff v.
Elegant Bath, Ltd., 176 F.3d 399, 407 (7th Cir. 1999). For
attorneys without fee-paying clients, the market rate may be
determined by a comparison to the rates charged by other
attorneys in the community for similar work and to fee awards the
attorney has received in similar cases. Id. Plaintiffs have
presented an affidavit from Lowell Sachnoff in support of their
proposed market rates. CHA argues that the affidavit is invalid
because Sachnoff is a Director of BPI, the organization
representing the Plaintiffs. However, the Seventh Circuit has
stated that it is appropriate to consider the testimony of a member of the attorney's own firm
when determining an attorney's proper market rate. People Who
Care v. Rockford Bd. of Educ., 90 F.3d 1307, 1312 (7th Cir.
1996) (stating that "[i]f a court chooses to look to the next
best evidence of what similarly situated attorneys charge, there
is no reason that it should refuse consideration of those who
practice in conjunction with the attorney at issue.").
Accordingly, Sachnoff's position within BPI does not invalidate
his affidavit. In consideration of Sachnoff's affidavit, as well
as the current market rates within the Chicago legal community
and the past hourly rates in this litigation, we find that the
Plaintiffs' requested hourly rates are reasonable.
For the reasons stated above, we grant the Plaintiff's motion
for award of attorneys' fees in the amount of $724,732 and
related expenses of $3,706. It is so ordered.