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Shepard v. Madigan

United States District Court, S.D. Illinois

September 29, 2014



MICHAEL J. REAGAN, District Judge.

Courts in the United States generally follow the "American Rule, "[1] which prevents an award of attorneys' fees to any party in a case. Congress carved out an exception to the American Rule in 42 U.S.C. § 1988, which permits the award of "reasonable" attorneys' fees to a "prevailing party" in § 1983 civil rights litigation. 42 U.S.C. § 1988(b).

This § 1983 case comes before the Court on Plaintiffs' Motion for Attorney Fees. Defendants dispute (1) whether Plaintiffs are "prevailing parties" and (2) whether the fees sought are "reasonable." After the necessary procedural background, the Court will take those issues in turn.


In May 2011, pursuant to 42 U.S.C. §1983, Plaintiffs (one private citizen and a gun rights advocacy organization) brought suit to challenge the constitutionality of three Illinois gun law provisions. The now-retired Senior Judge William D. Stiehl granted Defendants' motions to dismiss in March 2012. (Doc. 57). Plaintiffs appealed, and the Seventh Circuit (in a consolidated appeal) reversed and remanded, holding the statutes violated the Second Amendment. Moore v. Madigan , 702 F.3d 933 (7th Cir. 2012). Though the Court of Appeals' opinion was published on December 11, 2012, its mandate was twice stayed (for 210 total days) "to allow the Illinois legislature to craft a new gun law that will impose reasonable limitations, consistent with the public safety and the Second Amendment." Id. at 942; Shepard v. Madigan , 734 F.3d 748, 749 (7th Cir. 2013).

On July 9, 2013, the Court of Appeals issued its mandate, invalidating the challenged statutes. (Doc. 72). Later that day (Defendants do not dispute the timing), the Illinois legislature enacted a new gun law to replace the old ones. See Shepard , 734 F.3d at 749.[2]

Now before the Court is Plaintiffs' Motion for Attorneys' Fees, Expenses, and Taxable Costs, bolstered by a supporting brief and over 260 pages of affidavits, declarations, and billing information (Doc. 106, Doc. 107). Plaintiffs seek an award of fees and costs for three teams of lawyers and staff who worked on their case: (1) attorney William N. Howard and his squads of Chicago-based attorneys at Freeborn & Peters and at Locke Lord (he moved firms mid-litigation); (2) attorneys and staff at Cooper & Kirk, a Washington, D.C.-based firm with extensive appellate experience; and (3) attorney Stephen P. Halbrook, a Second Amendment expert who worked on the case. The motion, which drew an objection (Doc. 119) (which in turn drew a reply brief (Doc. 120)), is ripe for ruling. Though Plaintiffs originally sought $641, 091.65 in aggregate fees, expenses and costs, their reply cedes several points, and their request demand is $618, 606.30.

For the reasons explained below, the Court GRANTS IN PART Plaintiffs' Motion (Doc. 106) and ORDERS Defendants to pay $533, 603.80 to Plaintiffs.

1. Plaintiffs are Prevailing Parties for Purposes of 42 U.S.C. § 1988

The American Rule normally prevents federal courts from awarding attorneys' fees to any party absent express statutory authorization. Gaffney v. Riverboat Servs. of Indiana, Inc. , 451 F.3d 424, 467 (7th Cir. 2006). Congress authorized such an exception in 42 U.S.C. § 1988(b), which provides in pertinent part that a court may "allow the prevailing party" in § 1983 civil rights litigation a "reasonable attorney's fee and costs." 42 U.S.C. § 1988(b).

Fees and costs, however, "do not follow moral victories." Richardson v. City of Chi. , 740 F.3d 1099, 1102 (7th Cir. 2014). They depend on concrete judgments that alter legal relations. Id. A plaintiff who achieves a desired result because its lawsuit brought about a defendant's voluntary change is not, without the "necessary judicial imprimatur on the change, " a § 1988 "prevailing party." Buckhannon Bd. & Care Home, Inc. v. W.Va. Dep't of Health & Human Res. , 532 U.S. 598, 601-02; 605 (2001). Defendants assert that, because no final judgment was entered in this Court, Plaintiffs cannot be "prevailing parties" within the meaning of §1988.

In National Rifle Association v. Chicago , the Seventh Circuit addressed a § 1988 fee award similar to the one here. Nat'l Rifle Ass'n of Am., Inc. v. City of Chi. , 646 F.3d 992 (7th Cir. 2011). In the wake the Supreme Court striking down a federal ban on handguns as violative of the Second Amendment, [3] the NRA (and a citizen named Otis McDonald) sued Chicago and the Village of Oak Park over functionally similar ban. The plaintiffs won at the district and appellate levels, but the Supreme Court, incorporating a Bill of Rights amendment against the States for the first time in almost four decades, ruled in plaintiffs' favor. McDonald v. City of Chi. , 130 S.Ct. 3020 (2010).[4] The Supreme Court entered its judgment in June 2010, and the municipalities repealed their ordinances in July 2010. In August 2010, the Seventh Circuit directed the district court to dismiss the suits for want of a case or controversy. See 393 F.Appx. 390 (7th Cir. 2010). The plaintiffs requested attorneys' fees under § 1988, but the defendants argued that, because the district court did not enter a final judgment before the statutes were repealed, no prevailing party status had attached.

Judge Easterbrook distinguished NRA from two cases, Buckhannon and Zessar . Buckhannon held that a suit's role as a "catalyst" in sparking a defendant's change in policies did not support a fee award, because only obtaining a judicial order altering the parties' relative legal status counts as "prevailing." NRA , 646 F.3d at 993 (explaining Buckhannon Bd. & Care Home, Inc. v. W.Va. Dep't of Health & Human Res. , 532 U.S. 598 (2001)). Zessar applied Buckhannon 's rule to a case that became moot in between a district court's opinion and the (vacated on appeal) entry of judgment. Id. (explaining Zessar v. Keith , 536 F.3d 788 (7th Cir. 2008)). NRA differed because the plaintiffs did obtain a judgment-from the Supreme Court-that altered the parties' legal relationship. Id. The defendants' surrender of their legal position after the Supreme Court's judgment did not entitle them to vacatur. Id. at 994. The Second Amendment question was the issue at the heart of the litigation, and after the Supreme Court's decision, the "defendants' position was untenable." Id. The Supreme Court's favorable judgment sufficed as "the necessary judicial imprimatur " to establish prevailing party status for the plaintiffs, and the Court of Appeals ordered § 1988 fees awarded. Id.

Here, Defendants' attempt to hew to Zessar and Buckhannon rather than NRA is unpersuasive. At the heart of the argument is the assertion that Plaintiffs received a judicial pronouncement (i.e. a favorable opinion), but not judicial relief (i.e. an order). But unlike Zessar , where vacatur left the case without a judgment on any level, 536 F.3d at 790, here the Seventh Circuit issued both its opinion and a mandate. Unlike Buckhannon , where a district court ruled the case moot before any substantive legal questions were addressed (or final judgments issued), here the Court of Appeals addressed " the issue in this litigation" and filed a final order in Plaintiffs favor. See NRA , 646 F.3d at 994 (emphasis there). So while no final order issued in the district court, a higher court (as in NRA [5]) rendered Defendants' position untenable and entered its final order. Then state actors changed an unconstitutional ordinance: the Seventh Circuit issued its mandate on July 9, 2013, and Illinois amended its unconstitutional firearms laws later that day. "When the [higher court] rendered its decision, the controversy was live." NRA , 646 F.3d at 993. See also Palmetto Props., Inc. v. Cnty. of DuPage , 375 F.3d 542, 551 (7th Cir. 2004) ("It would fly in the face of legal intuit" to conclude a delay in entering a final order would strip summary judgment victor of "prevailing party" status).

Plaintiffs are prevailing parties under 42 U.S.C. § 1988. Before addressing the reasonableness of the fees, expenses and costs sought by Plaintiffs, the Court briefly discusses two preliminary matters.

2. Plaintiffs' Motion to Cite Supplemental Authority (Doc. 121) - GRANTED

Plaintiffs have provided a Northern District of Illinois order in which Cooper & Kirk attorneys (who represented another pro-firearm organization in that case) were awarded § 1988 attorneys' fees based on rates ranging from $975 to $300 per hour. (Doc. 121-1). The Court GRANTS (Doc. 121) Plaintiffs' Motion to Cite to that supplemental authority, but with several qualifications. The Court will consider those fees as evidence of Cooper & Kirk's rates (it would be error not to, see Pickett v. Sheridan Health Care Ctr. , 664 F.3d 632, 646 (7th Cir. 2011)), but not as precedential authority, see Travelers Prop. Cas. v. Good , 689 F.3d 714, 723 (7th Cir. 2012) (district court case not binding). The Court further notes those rates resulted from a negotiated settlement between the City of Chicago and the Firearms Retailers, not (as here) a hotly-contested fee dispute. The distinction makes a difference. For example, there is no record of whether the prevailing parties in the Northern District sacrificed the number of hours in their lodestar estimate for a higher rate. In Plaintiffs' favor, though (as discussed in greater length below), the Court finds Defendants' attempt to base fee calculations strictly on the geographical distinction between Chicago and downstate Illinois borders on the disingenuous.

3. Attorney Halbrook not per se Barred from §1988 Fees

Defendants' broad challenge to the award of any fees to Stephen P. Halbrook is unavailing. Halbrook is an attorney and Second Amendment expert whom Attorney William N. Howard (initially of Freeborn & Peters, then of Locke Lord) enlisted for work in this litigation. Defendants assert the lack of contract between Halbrook and Plaintiffs (or Halbrook ...

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