“prevailing party” is “a legal term of art”
How later courts described this case
- “prevailing party” is “a legal term of art”
- “Con- gress intended to permit the . . . award of counsel fees only when a party has prevailed on the merits of at least some of his claims.”
- “[T]he court’s discretion to deny a fee award to a pre- vailing plaintiff is narrow.”
- “To take the further step of assessing attorney’s fees against plaintiffs simply because they do not finally prevail would substantially add to the risks inhering in most litigation and would undercut the efforts of Congress to promote the vigorous enforcement of [civil rights laws].”
Written by the judges who cited it.
The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3536
JAMES R. KING,
Plaintiff,
v.
ILLINOIS STATE BOARD OF
ELECTIONS, DAVID E. MURRAY,
LAWRENCE E. JOHNSON, et al.,
Defendants-Appellants,
v.
BOBBY RUSH, TIMUEL BLACK,
AL JOHNSON, et al.,
Intervening Defendants-Appellees.
____________
Appeal from the United States District Court for
the Northern District of Illinois, Eastern Division.
No. 95 C 827—David H. Coar, Judge.
____________
ARGUED OCTOBER 28, 2004—DECIDED JUNE 13, 2005
____________
Before RIPPLE, WOOD and EVANS, Circuit Judges.
RIPPLE, Circuit Judge. The Illinois State Board of Elections
(“the State” or “Board of Elections”) appeals a district court
2 No. 03-3536
decision ordering it to pay attorneys’ fees and costs to the
defendant-intervenors in a voting rights suit. In the under-
lying action, Illinois voters had sued the State for injunctive
and declaratory relief on the ground that a map of con-
gressional districts adopted after earlier, related litigation
violated their constitutional rights. Other Illinois voters
(collectively, “the intervenors”) were permitted to intervene
and defend the map. The United States government also
intervened. After a three-judge court rendered a decision
against the plaintiffs, the intervenors petitioned for, and the
court granted, attorneys’ fees and costs to be paid by the
State. For the reasons set forth in the following opinion, we
affirm the award of fees and costs.
I
BACKGROUND
Before turning to the attorneys’ fee issue now before us,
we shall review the redistricting litigation which resulted in
the map challenged in this case.
A. The Hastert Litigation
In 1991, after the Illinois State Legislature failed to im-
plement a constitutionally sound redistricting plan based on
the 1990 census, a group of Republican members of the
Illinois congressional delegation brought suit against the
Board of Elections. See Hastert v. State Bd. of Elections
(“Hastert I”), 777 F. Supp. 634, 638 (N.D. Ill. 1991). The
plaintiffs sought to have the congressional districts as
drawn at that time declared unconstitutional and to have
their own redistricting proposal adopted as a replacement.
Id.
No. 03-3536 3
At the same time, a group of African-American and
Hispanic voters from Illinois brought a similar suit; in addi-
tion to seeking a declaration that the current congressional
districting map was unconstitutional, these plaintiffs also
sought the creation of a majority-Hispanic congressional
district, which they claimed was mandated by § 2 of the
Voting Rights Act, 42 U.S.C. § 1973. Hastert I, 777 F. Supp.
at 638. The two suits were consolidated for decision by a
three-judge district court. See 28 U.S.C. § 2284(a). The suits
later were consolidated with two other actions brought by
groups of Illinois voters seeking to have implemented other
redistricting plans. Hastert I, 777 F. Supp. at 638.
The three-judge district court in Hastert I determined that
the Illinois congressional districts as then drawn were un-
1
constitutional. Id. at 661-62. Because the state legislature
had not adopted a new congressional map, the court also
considered two redistricting plans (the “Hastert plan” and
the “Rosebrook plan”) that had been proposed by various
plaintiffs, both of which “would have passed constitutional
and legal muster had either plan been the product of the
state legislative process.” Id. at 662. The court adopted the
Hastert plan, finding it “best satisfie[d] the criteria” set by
the Supreme Court for evaluating congressional districting
plans. Id. According to the district court, the Hastert plan
realized “precise mathematical equality of population across
congressional districts.” Id. The Hastert plan also achieved
the “fairness to the voting rights of racial and language
1
The district court noted that the State did not play an “active
role” in the Hastert litigation; “[t]he adversarial circumstances
necessary to constitute a case or controversy ar[o]se solely from
competing redistricting plans submitted by the various
plaintiffs.” Hastert v. State Bd. of Elections (“Hastert I”), 777 F.
Supp. 634, 639 (N.D. Ill. 1991).
4 No. 03-3536
minorities” mandated by § 2 of the Voting Rights Act, 42
U.S.C. § 1973, by creating a Hispanic-super-majority district
(the current Fourth Congressional District) and preserving
three existing districts in which African-Americans consti-
tuted the majority (including the current First Congressional
District). Hastert I, 777 F. Supp. at 662. The district court also
ordered all parties to pay their own costs. Id.
The plaintiffs moved to alter or amend the judgment on
costs. The district court denied the motion and held that,
although some of the plaintiffs did qualify as “prevailing
parties” under the relevant statutes allowing for the award
of attorneys’ fees and costs, 42 U.S.C. §§ 1973l(e) & 1988,
“special circumstances” prevented it from awarding fees
and costs. Hastert v. State Bd. of Elections (“Hastert II”), 794 F.
Supp. 254, 260-61 (N.D. Ill. 1992).
On appeal from the district court’s decision not to award
2
fees and costs, this court affirmed the district court’s con-
clusion that some of the plaintiffs (including Bobby Rush, Al
Johnson and Neomi Hernandez, all of whom are intervenors
in this case) were “prevailing parties” under the relevant
statutes and reversed the district court’s decision to deny
fees. Hastert v. Illinois State Bd. of Election Comm’rs (“Hastert
III”), 28 F.3d 1430, 1440, 1443 (7th Cir.), cert. denied, 513 U.S.
964 (1994). Rejecting the district court’s determination that
“special circumstances” existed, this court held that the
2
This court did not have jurisdiction to hear the appeal of the
Hastert litigation on the merits; any appeal had to be made
directly to the Supreme Court of the United States. 28 U.S.C.
§§ 1253 & 1291; see also Hastert v. Illinois State Bd. of Election
Comm’rs (“Hastert III”), 28 F.3d 1430, 1436-37 (7th Cir.),
cert. denied, 513 U.S. 964 (1994). However, we had jurisdiction
over the district court’s denial of attorneys’ fees. See Hastert III, 28
F.3d at 1436-37.
No. 03-3536 5
State was “accountable for the prevailing parties’ attorneys’
fees” because it had “fail[ed] to vindicate important rights.”
Id. at 1444.
We pointed out that redistricting cases often present “pe-
culiar circumstances” with respect to “thorny fees matters.”
Id. We further noted the difficulty of declaring a “winner”
when “all of the plaintiffs ‘contributed’ to the final result in
the sense that . . . all parties arguably helped move the pro-
cess forward toward its eventual culmination”—but deter-
mined that the “winners” were those of whom it could be
said “exactly what they advocated has been accepted.” Id.
The court reasoned:
The State Board of Elections, the nominal defendant, has
no interest in the eventual outcome except that there be
an outcome which it can implement. Yet the State Board
may be held liable for fees to the prevailing parties,
whose status as such depends upon the relative success
of their position in relation to the success of the other
plaintiffs. These configurations of claim to liability and
of success to failure are essentially unique to redistrict-
ing cases. . . . In [redistricting cases], we are attempting
to apply principles developed in a wide range of civil
rights cases to the sui generis category of redistricting
cases. As might be expected, these principles do not
provide a close fit to this subject matter.
Id. (emphasis in original). The court noted that, in redistrict-
ing cases, the application of fee-shifting statutes typically
results in liability being “imposed on a neutral (and nomi-
nal) defendant, and successful fees claims [being] awarded
to the relatively successful plaintiffs.” Id. (emphasis in
original).
6 No. 03-3536
B. Facts
This suit presented a challenge to the Hastert plan. On
February 9, 1995, plaintiffs PAC for Middle America
(“PACMA”), William J. Kelly and James R. King brought
this action for injunctive and declaratory relief against the
Board of Elections and members of the Board of Elections in
their official capacities. Plaintiff King is a resident and
registered voter in Illinois’ Fourth Congressional District.
Plaintiff Kelly is a resident and registered voter in Illinois’
First Congressional District. PACMA has members in both
the First and the Fourth Districts.
The plaintiffs alleged that, in light of the Supreme Court’s
decision in Shaw v. Reno, 509 U.S. 630 (1993), Illinois’ First
and Fourth Congressional Districts were “so highly ir-
regular” that they could not “be rationally understood as
anything other than an effort to separate voters into differ-
ent districts on the basis of race.” R.1 at 5. Therefore, the
plaintiffs contended that an election conducted according to
the map adopted in Hastert I would violate “the Constitu-
tion of the United States, Article I, Section 2, the Fourteenth
Amendment, Sections 1 and 2, and Fifteenth Amendment;
42 U.S.C. § 1983 and the rights of Plaintiffs in particular.”
R.1 at 5.
C. District Court Proceedings on the Merits of the Case
A three-judge district court was convened to hear and
determine the case. See 28 U.S.C. § 2284(a). The State moved
to dismiss the complaint on the ground that the plaintiffs
lacked standing because their injury was not fairly traceable
to the State and on the ground that the suit was barred by
the doctrine of laches. The district court denied the State’s
motion to dismiss.
No. 03-3536 7
In May 1995, supporters of the Hastert plan who resided
and were registered voters in Illinois’ First and Fourth
Congressional Districts, sought leave to intervene as
defendants (when necessary, the intervenors shall be re-
ferred to, respectively, as “the First District intervenors” and
“the Fourth District intervenors”). Their request was
granted in September 1995 . The intervenors argued that the
“participation of the State Election Board and its members
as defendants [did] not establish that [their] interests as
voters and as beneficiaries of the 1991 court decree [in the
Hastert litigation would] be adequately represented.” R.53
3
at 9. The United States sought leave to intervene later in
3
The intervenors are Bobby Rush, Timuel Black, Al Johnson,
Elvira Carrizales, Neomi Hernandez, and the Chicago Urban
League. At all times relevant to the present action, Rush was the
elected representative for the First Congressional District. Black,
Johnson, Carrizales and Hernandez are residents and registered
voters in the majority-African-American First Congressional
District and the majority-Hispanic Fourth Congressional District.
The Chicago Urban League sought to intervene on behalf of its
members who reside in the majority-African-American First
District. Intervenors Rush, Johnson and Hernandez all were
plaintiffs in the Hastert litigation and all had been declared
“prevailing parties” by this court. Hastert III, 28 F.3d at 1440.
Rush, as the First District’s elected representative at all times
relevant to the litigation, was granted leave to intervene as of
right pursuant to Fed. R. Civ. P. 24(a), on the ground that he
stood to “lose his base electorate as a result of an adverse ruling.”
R.68 at 2. The remaining intervenors—Black and Johnson, voters
in the majority-African-American First District, Carrizales and
Hernandez, voters in the majority-Hispanic Fourth District, and
the Chicago Urban League—were permitted to intervene under
Fed. R. Civ. P. 24(b). The panel found that their proposed
intervention was timely, would not prejudice or delay adjudica-
(continued...)
8 No. 03-3536
September 1995 and was granted leave to intervene in
November 1995. In October 1995, before trial, Plaintiffs
Kelly and PACMA abandoned their challenge to the First
District, and that portion of the lawsuit was dismissed.
The three-judge court concluded that the Fourth District
was constitutional. See King v. State Bd. of Elections (“King
I”), 979 F. Supp. 582 (N.D. Ill.), vacated, King v. Illinois Bd. of
4
Elections, 519 U.S. 978 (1996). Mr. King appealed directly to
the Supreme Court, which vacated the district court’s
judgment and remanded for reconsideration in light of its
decisions in Shaw v. Hunt, 517 U.S. 899 (1996), and Bush v.
Vera, 517 U.S. 952 (1996). On remand, the three-judge
3
(...continued)
tion of the underlying case and presented questions of law and
fact “virtually identical not only to the issues presently pending
before this court but also to the issues raised before the Hastert
court.” R.68 at 7.
The intervenors were represented by two separate counsels,
primarily because some of them “were represented separately in
the 1991 [Hastert] litigation.” R.53 at 10-11 n.2. However, the
intervenors emphasized that “they ha[d] no desire to engage in
duplicative efforts” and “agreed to coordinate their actions . . .
and to file joint pleadings on behalf of all movants rather than
duplicative separate pleadings.” R.53 at 10 n.2.
4
The King I court also declined to transfer the case back to the
same three-judge district court that had heard Hastert, on the
grounds that (1) the chief circuit judge had already assigned the
three-judge panel to hear Mr. King’s lawsuit and so the law of the
case doctrine prevented a transfer; (2) the Hastert court had not
retained jurisdiction to hear future constitutional challenges to its
order; and (3) it would have been difficult or impossible for Mr.
King to petition the Hastert court for an order vacating or
modifying the judgment. King v. State Bd. of Elections (“King I”),
979 F. Supp. 582, 588-90 (N.D. Ill. 1996).
No. 03-3536 9
district court again concluded that the Fourth District was
constitutional. See King v. State Bd. of Elections (“King II”),
979 F. Supp. 619 (N.D. Ill. 1997). The Supreme Court
summarily affirmed. King v. Illinois Bd. of Elections, 522 U.S.
1087 (1998).
D. District Court Proceedings on Attorneys’ Fees and
Costs
The intervenors then petitioned the three-judge district
court for their attorneys’ fees and costs pursuant to 42
U.S.C. § 1973l(e) and § 1988. On March 6, 2002, the district
court issued an order directing the State to pay the in-
tervenors’ fees and costs. The district court noted that the
relevant statutes allow a court to award attorneys’ fees to a
“prevailing party” in a voting rights or civil rights case. 42
U.S.C. §§ 1973l(e) & 1988. The court stated that, although it
was “aware that it [was] treading on uncharted grounds
with no controlling precedent to serve as guideposts,” the
equities of the case, “namely, the . . . nature of redistricting
cases” and the “unusual procedural history” of the case,
supported an award of attorneys’ fees for the intervenors
despite their status as intervening defendants. R.204 at 12.
The district court concluded that the equities of the case
supported a departure from “the general rule that precludes
prevailing defendants from recovering fees” unless a
plaintiff’s suit was frivolous or vexatious. R.204 at 5.
Furthermore, the court concluded that awarding fees to the
intervenors for their involvement in this case would further
the purposes of § 1973l(e) and § 1988. The district court
reasoned that the intervenors were doing the work of “tra-
ditional civil rights plaintiffs in their efforts to vindicate
rights,” and that their work could “also be construed as
post-judgment work to ensure continued enforcement of the
rights secured in Hastert.” R.204 at 6.
10 No. 03-3536
The district court also noted that the intervenors met the
standard for qualifying as a prevailing party because they
“contributed to the successes obtained in the case” with ef-
forts that were “nonduplicative of the efforts of the named
party.” R.204 at 7. In light of the fact that “the intervenors
carried the weight of the defense while the State passively
awaited the outcome,” the court determined that the
intervenors were prevailing parties. R.204 at 7. The court
held the State responsible for the fee award to the inter-
venors because it had failed to defend the Hastert plan that
previously had been held “statutorily and constitutionally
mandated.” R.204 at 8. The court concluded that, given the
State’s “explicitly neutral stance” in the case, had the inter-
venors not entered the litigation, they ultimately would
have had to bring “yet another suit” to reinstate the First
and Fourth districts, and, in that suit, “they would have
been plainly entitled to fees from the defendant State.”
R.204 at 12. Because of this situation, the court saw no
reason not to award fees.
The district court also ruled that Plaintiff Kelly’s volun-
tary dismissal of his challenge to the First District did not
preclude recovery on the part of those intervenors with ties
to the First District (Rush, Black and Johnson). It determined
that the First District intervenors qualified as “prevailing
parties” because they had successfully “advocated the
preservation of the three majority-African-American
districts” against a challenge to the Fourth District which, if
successful, could have altered those three districts. R.204 at
13.
On August 23, 2003, the three-judge district court issued
an order awarding the intervenors $371,185.00 in fees and
$14,252.52 in costs. The State appealed to this court.
No. 03-3536 11
II
ANALYSIS
A. Standard of Review
We review a district court’s award of attorneys’ fees for an
abuse of discretion. See Jaffee v. Redmond, 142 F.3d 409, 412
(7th Cir. 1998). That deferential standard is appropriate,
given “the district court’s superior understanding of the
litigation and the desirability of avoiding frequent appellate
review of what essentially are factual matters.” Hensley v.
Eckerhart, 461 U.S. 424, 437 (1983). However, when a district
court’s decision whether to award fees is based on the
application of a legal principle, we conduct de novo review
of any “alleged legal errors.” Jaffee, 142 F.3d at 412-13. Any
“factual matters underlying the fee award” (for instance,
“the fee amount and a party’s ultimate litigation goals”) are
reviewed for clear error. Palmetto Props., Inc. v. County of
DuPage, 375 F.3d 542, 547 (7th Cir. 2004), cert. denied, ___
U.S. ___, 125 S. Ct. 965 (2005).
B. Statutory Framework
The State contends that the district court’s order requiring
the State to pay the attorneys’ fees of the intervenors is not
authorized by federal law. Specifically, the State submits
that “there is no explicit statutory authority for ordering a
winning party to pay another winning party’s attorney’s
fees.” Appellants’ Br. at 19. Furthermore, the State contends
that, absent the “explicit statutory authority to order a party
in whose favor judgment has been entered to pay another
party’s fees[,] . . . the fee award here must be reversed.” Id.
at 19-20.
The federal courts follow the “American Rule” with re-
spect to attorneys’ fees: A federal court normally will not
12 No. 03-3536
order one party in a case to pay another party’s attorneys’
fees unless Congress has authorized such fee awards by
statute. Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S.
245, 269 (1975). Congress has provided for fee-shifting in 42
U.S.C. § 1973l(e) and § 1988. See Hastert III, 28 F.3d at 1437.
Section 1973l(e) provides that a court, “in its discretion,
may allow the prevailing party . . . a reasonable attorney’s
fee” in “any action or proceeding to enforce the voting guar-
antees of the fourteenth or fifteenth amendment.” 42 U.S.C.
§ 1973l(e). Similarly, § 1988, the Civil Rights Attorneys Fees
Award Act, authorizes a court, “in its discretion,” to award
attorneys’ fees to the “prevailing party” in “any action or
proceeding to enforce” one of a number of civil rights
statutes, including 42 U.S.C. § 1983. 42 U.S.C. § 1988. As an
initial matter, we point out that the language of these
statutes does not preclude defendants or defendant-
intervenors from recovering attorneys’ fees. The statutes
refer to “prevailing parties,” not to prevailing plaintiffs.
Because the attorneys’ fees provision in § 1988 was pat-
terned on § 1973l(e), the standard for awarding fees under
5
both provisions is the same. See Hensley, 461 U.S. at 433 n.7;
see also Hastert II, 794 F. Supp. at 258 n.1.
The purpose of § 1973l(e) and § 1988 is “to ensure effective
access to the judicial process” for persons with civil rights
or voting rights grievances. Hensley, 461 U.S. at 429 (internal
quotations omitted). This court has recognized that, by
providing a “reasonable attorneys’ fee” to “those who as
‘private attorneys general’ take it upon themselves to invoke
and thereby invigorate federal constitutional and statutory
5
The Supreme Court has stated that the standards for awarding
fees under § 1988 “are generally applicable in all cases in which
Congress has authorized an award of fees to a ‘prevailing
party.’ ” Hensley v. Eckerhart, 461 U.S. 424, 433 n.7 (1983).
No. 03-3536 13
rights,” Congress hoped “to encourage private citizens to
initiate court action to correct violations of the Nation’s civil
rights statutes . . . and . . . to insure that those who violate
the Nation’s fundamental laws do not proceed with impu-
nity.” Charles v. Daley, 846 F.2d 1057, 1063 (7th Cir. 1988)
(emphasis in original), cert. denied sub nom. Diamond v.
6
Charles, 492 U.S. 905 (1989).
The legislative histories of § 1973l(e) and § 1988 both
reflect Congress’ expectation that, in some circumstances,
defendants or defendant-intervenors would be prevailing
parties entitled to attorneys’ fees. The Senate Report on
§ 1988 notes: “In the large majority of cases the party or
parties seeking to enforce such rights will be the plaintiffs
and/or plaintiff intervenors. However, in the procedural
posture of some cases, the parties seeking to enforce such
rights may be the defendants and/or defendants inter-
7
venors.” The Senate Report on § 1973l(e) includes almost
8
exactly the same language.
6
See also S. Rep. No. 94-295, at 40, 43 n.47 (1975), reprinted in 1975
U.S.C.C.A.N. 774, 807, 810 n.47 (discussing § 1973l(e)) (“S. Rep.
No. 94-295”); S. Rep. No. 94-1011, at 3 (1976), reprinted in 1976
U.S.C.C.A.N. 5908, 5910 (discussing § 1988) (“S. Rep. No. 94-
1011”); Christiansburg Garment Co. v. E.E.O.C., 434 U.S. 412, 416
(1978).
7
S. Rep. No. 94-1011, at 4 n.8 (citing Shelley v. Kraemer, 334 U.S. 1
(1948)). In Shelley v. Kraemer, the defendants’ constitutional rights
were vindicated when defendants prevailed in suits brought by
plaintiffs seeking to enforce racially restrictive covenants. 334
U.S. at 23.
8
The Senate Report on 42 U.S.C. § 1973l(e) notes:
In the large majority of cases the party or parties seeking to
enforce such rights will be the plaintiffs . . . . However, in the
(continued...)
14 No. 03-3536
“[I]n order to qualify for attorney’s fees under [§ 1973l(e)
and] § 1988, a [party] must be a ‘prevailing party.’ ” Farrar
v. Hobby, 506 U.S. 103, 109 (1992); see also Buckhannon Bd. &
Care Home v. West Virginia Dep’t of Health & Human Res., 532
U.S. 598, 603 (2001) (“prevailing party” is “a legal term of
art”); Hanrahan v. Hampton, 446 U.S. 754, 758 (1980) (“Con-
gress intended to permit the . . . award of counsel fees only
when a party has prevailed on the merits of at least some of
his claims.”). A prevailing party in an action to vindicate
rights protected by statutes such as 42 U.S.C. § 1983 and by
the Fourteenth and Fifteenth Amendments “ ‘should
ordinarily recover an attorney’s fee unless special circum-
9
stances would render such an award unjust.’ ”
C. Prevailing Parties
The State submits that, because “judgment was entered in
its favor,” the district court erred in ordering it to pay the
intervenors’ attorneys’ fees. Appellant’s Br. at 19. According
to the State, “the threshold inquiry for a fee award is who
lost, not who won.” Id. at 19 (citing Kentucky v. Graham, 473
U.S. 159, 164 (1985)).
However, we think that respect for Congressional
decision-making requires that the issue be posed more pre-
8
(...continued)
procedural posture of some cases (e.g., a declaratory judg-
ment suit under Sec. 5 of the Voting Rights Act) the parties
seeking to enforce such rights may be the defendants and/or
defendant intervenors.
S. Rep. No. 94-295, at 40 n.42.
9
S. Rep. No. 94-295, at 40; S. Rep. No. 94-1011, at 5; see also
Hensley, 461 U.S. 429.
No. 03-3536 15
cisely: We must ask whether the intervenors were “prevail-
ing parties” within the scope of § 1973l(e) and § 1988. This
court has recognized that “section 1988’s paramount
concern was to fashion the parameters of eligibility for fee
awards.” Charles, 846 F.2d at 1064 (emphasis in original).
Therefore, as in that case, “the critical distinction for
purposes of fixing fee liability in the somewhat atypical
circumstances presented in this case is between prevailing
and non-prevailing [parties].” Id.; see also Brusco v. United
Airlines, Inc., 239 F.3d 848, 865 (7th Cir. 2001) (noting that
the question of whether a party is a “prevailing party” must
be resolved before the “propriety of . . . fee award” can be
determined).
The State appears to accept that at least some of the in-
tervenors have prevailed in this litigation; however, it sub-
mits that the First District intervenors—those intervenors
who are registered voters and residents in the majority-
African-American First Congressional District—are not
“prevailing parties” because Plaintiffs Kelly and PACMA
successfully moved to have their challenge to the First
District dismissed without prejudice.
The Supreme Court has adopted a “generous formula-
10
tion” of the term “prevailing party”; parties are said to
10
Although many of the cases to which we refer here describe the
requirements in terms of “prevailing plaintiffs,” see, e.g., Hensley,
461 U.S. at 433, we think the discussion provided by those cases
is equally instructive to the inquiry whether any party is a
“prevailing party.” Therefore, those cases are helpful here, given
the unusual alignment of parties in this case, which includes
multiple intervening defendants. Cf. Comm’r’s Court of Medina
County v. United States, 683 F.2d 435, 440 & n.5 (D.C. Cir. 1982)
(“[N]either [the party’s] status as intervenors nor as defendants
(continued...)
16 No. 03-3536
have prevailed in litigation for “attorney’s fees purposes if
they succeed on any significant issue in litigation which
achieves some of the benefit the parties sought in bringing
suit.” Hensley, 461 U.S. at 433 (internal quotation omitted).
The Court has noted that the “touchstone of the prevailing
party inquiry” is “the material alteration of the legal rela-
tionship of the parties in a manner which Congress sought
to promote in the fee statute.” Texas State Teachers Ass’n v.
Garland Indep. Sch. Dist., 489 U.S. 782, 792-93 (1989). “[A]t a
minimum, to be considered a prevailing party . . . [a party]
must be able to point to a resolution of the dispute which
changes the legal relationship between itself and the
defendant.” Id. at 792.
The Court has given guidance as to what will constitute
the material alteration required by Garland. For instance,
in Farrar, the Court summarized a number of its earlier
decisions: “[T]o qualify as a prevailing party, a civil rights
plaintiff must obtain at least some relief on the merits of his
claim. The plaintiff must obtain an enforceable judgment
against the defendant from whom fees are sought, . . . or
some comparable relief through a consent decree or set-
tlement.” 506 U.S. at 111 (internal citations omitted). A
plaintiff may become a prevailing party by obtaining a de-
claratory judgment. Hewitt v. Helms, 482 U.S. 755, 761 (1987).
Such a judgment “will constitute relief, for purposes of
§ 1988, if, and only if, it affects the behavior of the defendant
toward the plaintiff.” Rhodes v. Stewart, 488 U.S. 1, 4 (1988).
Furthermore, “[w]hatever relief the [party] secures must
directly benefit him at the time of the judgment or settle-
10
(...continued)
precludes an award of fees under the Voting Rights Act. . . .
Having voluntarily entered the suit, a defendant-intervenor’s
position can more readily be analogized to that of a plaintiff.”).
No. 03-3536 17
ment.” Farrar, 506 U.S. at 111. Ultimately, a party “ ‘prevails’
when actual relief on the merits of his claim materially alters
the legal relationship between the parties by modifying the
defendant’s behavior in a way that directly benefits the
plaintiff.” Id. at 111-12.
On the facts of this case, we must conclude that those
intervenors who are registered voters and residents in
the Fourth Congressional District are prevailing parties. In
the litigation on the merits of this case, the intervenors
achieved the benefit they sought when they intervened in
the litigation: the preservation of the Fourth District, as
drawn in the Hastert plan. Furthermore, the judgment of the
three-judge district court, which the Supreme Court af-
firmed, affected the behavior of the defendant Board of
Elections towards the Fourth District intervenors; the Board
of Elections can no longer profess ambivalence towards the
map of the Fourth District. The Fourth District intervenors
also benefitted directly from the judgment on the merits in
this case because, in future elections, they will continue to
vote in a district that was drawn to protect their voting
rights.
With respect to the First District intervenors, we conclude
that they, too, are prevailing parties entitled to attorneys’
fees. The Hastert court found that the extraordinary configu-
ration of the majority-Hispanic district adopted in that case
was necessary to preserve against retrogression the three
districts with African-American majorities. See Hastert I, 777
F. Supp. at 662 (“[Section] 2 of the Voting Rights Act
warrants the creation of an Hispanic super-majority district,
as well as the preservation of the three existing African-
American districts. The Hastert plan provides these minority
communities . . . with a marginally superior opportunity to
exercise political control . . . .”). Thus, a challenge to the
super-majority-Hispanic Fourth District established in
18 No. 03-3536
Hastert I also amounts to a challenge to the First District
established in that case, as well as the other African-
American-majority districts nearby. Defending the map of
the Fourth District adopted in the Hastert plan meant
defending the map of the surrounding majority-African-
American districts as well.
As a result of the judgment on the merits, the First
Congressional District was preserved. We think it is fair to
say that the First District intervenors “accomplished every-
thing [they] set out to achieve.” Hastert III, 28 F.3d at 1441.
Therefore, we conclude that the First District intervenors, as
well as the Fourth District intervenors, are “prevailing
parties” within the meaning of that term as used in
§ 1973l(e) and § 1988; the district court correctly determined
that it could award the intervenors their attorneys’ fees in
this case.
D. Attorneys’ Fees
Having concluded that the district court correctly applied
the definition of “prevailing party” to the intervenors, we
now review the award of fees for abuse of discretion. See
Jaffee, 142 F.3d at 412.
Although the language of the fee-shifting statutes vests a
district court with “discretion” to award attorneys’ fees to
a prevailing party, this court generally has held that
“prevailing civil rights plaintiffs are entitled to their attor-
neys’ fees ‘as a matter of course.’ ” Hastert III, 28 F.3d at 1438
(quoting Entm’t Concepts, Inc. III v. Maciejewski, 631 F.2d 497,
No. 03-3536 19
11
506 (7th Cir. 1980)). The policy considerations behind the
fee-shifting statutes clearly support an award of fees to a
prevailing plaintiff in a civil rights case: “First, . . . the
plaintiff is the chosen instrument of Congress to vindicate
a policy that Congress considered of the highest priority. . . .
Second, when a district court awards counsel fees to a
prevailing plaintiff, it is awarding them against a violator of
federal law.” Christiansburg Garment Co. v. E.E.O.C., 434 U.S.
412, 418 (1978) (internal quotation and citation omitted).
Courts have not established a presumptive rule that a pre-
vailing defendant or defendant-intervenor in a civil rights
suit should be awarded attorneys’ fees because the “strong
equitable considerations counseling an attorney’s fee award
to a prevailing [civil rights] plaintiff” may not be present
when a defendant or an intervening defendant prevails in
civil rights litigation. Id. In fact, the Supreme Court has
limited a prevailing defendant’s ability to recover attorneys’
fees. In Christiansburg Garment Co., the Court concluded that
a “prevailing defendant” in a civil rights suit could not
recover his fees and costs from the plaintiff unless there had
been a showing “that the plaintiff’s action was frivolous,
unreasonable, or without foundation, even though not
brought in subjective bad faith.” Id. at 421; see also Indep.
Fed’n of Flight Attendants v. Zipes, 491 U.S. 754, 760 (1989).
1.
11
See also New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 68
(1980) (“[T]he court’s discretion to deny a fee award to a pre-
vailing plaintiff is narrow.”).
20 No. 03-3536
We note that several of our sister circuits that have
addressed the issue have concluded that prevailing
defendant-intervenors are, in some circumstances, entitled
to attorneys’ fees under fee-shifting statutes. The district
court relied on several of these cases in awarding attorneys’
fees to the intervenors, and we also find these cases in-
structive.
a.
The District of Columbia Circuit addressed the question
of fee awards for intervenors in Donnell v. United States, 682
F.2d 240 (D.C. Cir. 1982), cert. denied, 459 U.S. 1204 (1983).
Seven black voters registered in Warren County,
Mississippi, intervened on the side of the United States in a
suit brought by the Board of Supervisors of Warren County
for declaratory judgment approving a new congressional
districting plan. Id. at 243-44. On appeal from the district
court’s award of attorneys’ fees to the prevailing defendant-
intervenors, the District of Columbia Circuit considered
whether Congress, in adopting § 1973l(e), had provided for
prevailing defendant-intervenors to recover attorneys’ fees.
Id. at 246. Because § 1973l(e) itself “is silent on the appropri-
ate standard for awarding attorneys’ fees to intervenors
who participate . . . in a successful suit,” the court consid-
ered the legislative history of that provision and concluded
that Congress had contemplated that “intervenors may be
considered as prevailing parties entitled to an award of
attorneys’ fees.” Id.
However, the District of Columbia Circuit reasoned that
Congress did not “intend[ ] that . . . an award [of attorneys’
fees] be as nearly automatic [for defendant-intervenors] as
it is for a party prevailing in its own right.” Id. For instance,
“an award of attorneys’ fees would be inappropriate . . . if
No. 03-3536 21
the intervenor’s submissions and arguments were mostly
redundant . . . or were otherwise unhelpful.” Id. at 249. The
court recognized a “ ‘special circumstance’ that creates an
exception to the ordinary presumption in favor of granting
attorneys’ fees to a prevailing party . . . [when] a lawsuit is
successful, but the intervenor contributed little or nothing
of substance in producing that outcome.” Id. at 247-48. Thus,
the court held that “in considering an intervenor’s request
for attorneys’ fees the district court is obligated to examine
the particular role played by the intervenor in the lawsuit.”
Id. at 247.
The District of Columbia Circuit also noted that “the
critical goal of enabling private citizens to serve as ‘private
attorneys general’ . . . is far less compelling when” an
intervenor participates on the side of the United States and
“the actual Attorney General . . . defends a suit . . . on behalf
of those whose rights are affected.” Id. at 246. The court set
forth the following guidelines for determining when a fee
award to an intervening party will be appropriate in
circumstances such as those presented by Donnell:
Where Congress has charged a governmental entity to
enforce a statutory provision, and the entity successfully
does so, an intervenor should be awarded attorneys’ fees
only if it contributed substantially to the success of the
litigation. This inquiry primarily entails determining
whether the governmental litigant adequately repre-
sented the intervenors’ interests by diligently defending
the suit. It also entails considering both whether the
intervenors proposed different theories and argu-
ments . . . and whether the work . . . performed was of
important value to the court.
Id. at 248-49.
The District of Columbia Circuit found that there was
no “divergence . . . between [the] defendant and [the]
22 No. 03-3536
defendant intervenor” that would allow it to conclude that
the intervenors’ role “differed from that of the Justice
Department,” and it denied fees to the intervenors. Id. at
246-47.
b.
The Third Circuit addressed the issue of attorneys’ fees for
prevailing defendant-intervenors in Commonwealth
v. Flaherty, 40 F.3d 57 (3d Cir. 1994). A preliminary injunc-
tion, entered in 1975 following a successful suit by the
Commonwealth of Pennsylvania against the City of Pitts-
burgh, had required the City’s Police Department to practice
affirmative action based on race and gender in its hiring
decisions. Id. at 59. In Flaherty, white males applying to the
Police Department sued, “challenging the hiring system
imposed by the preliminary injunction,” and were aligned
as “intervening defendants to the original suit between the
Commonwealth and the City.” Id. at 60.
Although the white male applicants succeeded in hav-
ing the injunction dissolved, the Third Circuit reversed the
award of attorneys’ fees to prevailing defendant-
intervenors. According to the district court’s award, 75% of
the fee was to have been paid by the Commonwealth of
Pennsylvania, the plaintiff in the original proceedings. Id.
The Third Circuit reasoned that, although it was possible for
an intervening defendant to be a “prevailing party” for the
purpose of attorneys’ fees under § 1988, it was “unprece-
dented” to require the original plaintiff, the Common-
wealth, to pay such a large portion of the intervenors’
attorneys’ fees. Id. at 61-62.
The Third Circuit rejected the district court’s reasoning
that “it would be proper to . . . treat the Commonwealth as a
defendant for fee award purposes because it would further
No. 03-3536 23
the congressional goal of attacking discrimination by
encouraging civil rights lawsuits.” Id. at 61. In fact,
the Third Circuit stated that “[t]he status of the
Commonwealth as a plaintiff seeking a civil rights remedy
was not diminished” in this case by its failure to seek a
permanent injunction after the preliminary injunction had
been granted. Id. The Third Circuit concluded, based on
Christiansburg Garment Co., that a prevailing defendant may
only recover fees “against a plaintiff in a civil rights suit
where plaintiff’s suit is frivolous, unreasonable, or ground-
less.” Id. at 62. However, the court suggested that it would
have upheld an award “order[ing] the [original defendant]
City of Pittsburgh to pay 100% of the attorney’s fees,”
because such an award would serve the “dual purposes of
encouraging civil rights litigation by intervenors yet not
chilling a plaintiff from filing suit.” Id.
c.
In Wilder v. Bernstein, 965 F.2d 1196 (2d Cir.) (en banc),
cert. denied sub nom. Administrator, New York City Department
of Human Resources v. Abbott House, 506 U.S. 954 (1992), a
group of nineteen private child care agencies, intervenors in
a suit brought against New York City and the officials
responsible for the city’s child care system, sought attor-
neys’ fees for their work. Because of the unusual posture
of the case, “[t]he customary terms of either ‘plaintiff-
intervenor’ or ‘defendant-intervenor’ were not used” to
refer to the intervening child care agencies. Id. at 1200.
Reversing the district court’s award of attorneys’ fees to
the intervening agencies, the Second Circuit noted that “[t]o
forbid the shifting of attorneys’ fees to intervenors, who
could otherwise bring a separate action later as plaintiffs
alleging the same civil rights violations . . . defeats the goal
of judicial economy.” Id. at 1202. Furthermore, the court
24 No. 03-3536
stated, in some circumstances, “intervenors may act effec-
tively as private attorneys general in vindicating abuses of
civil rights.” Id. at 1204. The court reasoned that many
“would be intervenors” would find the right to intervene in
civil rights suits “hollow . . . were the recovery of attorney’s
fees not to exist as an incentive.” Id.
The Second Circuit recognized that Congress had in-
tended intervenors to be able to obtain attorneys’ fees in
some circumstances. Id. at 1205. However, the court rea-
soned:
The plaintiffs in a civil rights action have the priority
claim for an award of fees as prevailing parties where
their efforts have effectuated some or all of the civil
rights involved in the litigation. The policies underlying
private attorneys general and intervention are not so
compelling when a suit has already been initiated and
the potential intervenor’s interests are adequately
represented.
Id. The Second Circuit remanded the case for a determina-
tion of the extent to which the intervenors’ efforts had been
either duplicative of those of the original parties or unre-
lated to the civil rights claims raised in the case. Id. at 1206.
d.
The Fifth Circuit addressed similar circumstances in
League of United Latin American Citizens Council, No. 4434 v.
Clements (“LULAC”), 923 F.2d 365 (5th Cir. 1991) (en banc).
The League of United Latin American Citizens (“LULAC”)
had sued the State of Texas, through its officials, on the
theory that the method of electing state district judges
diluted the votes of minorities, thus violating the
Constitution and federal law. Id. at 367. Sharolyn Wood, a
No. 03-3536 25
sitting state judge elected under the challenged system, in-
tervened on the side of the State, which ultimately pre-
vailed.
Addressing Judge Wood’s petition for attorneys’ fees, the
Fifth Circuit noted that it would not apply its standard for
fee awards to “prevailing plaintiffs” to her as a prevailing
defendant. Id. at 368. Furthermore, the court “decline[d]
Judge Wood’s invitation to . . . distinguish defendant-
intervenors from defendants.” Id. The case was not one in
which “equity could persuade [the court] to look beyond the
procedural posture of a case to a party’s actual role.” Id. In
fact, the court described Judge Wood as having “partici-
pated in all ways as one defending against a civil rights
claim and not as one seeking to establish and rectify a viola-
tion of civil rights.” Id. Because Judge Wood was an inter-
vening defendant, the court reasoned, her “right to recover
attorneys’ fees [under § 1973l(e) and § 1988] cannot rise
above what it would have been had she originally been
joined as . . . a defendant.” Id. at 369. Thus, in order to de-
termine whether Judge Wood, as an intervening defendant,
was entitled to attorneys’ fees from the plaintiffs, the court
would have considered whether the plaintiffs’ action was
“frivolous, unreasonable, or without foundation.” Id. at 368
(citing Christiansburg Garment Co., 434 U.S. at 417-21).
However, rather than seeking fees from the plaintiffs,
Judge Wood sought fees against the named defendant, the
State of Texas, on the grounds that the “Texas attorney
general could not have won the case without her and that he
did not adequately defend her interests or perform his
official duties.” LULAC, 932 F.2d at 369. The Fifth Circuit
held that, because the duties of the Texas attorney general
were set by state and not federal law, Judge Wood’s claims
did not “fall under the Civil Rights Act or the Voting Rights
26 No. 03-3536
Act.” Id. Therefore, she could not recover fees under
§ 1973l(e) and § 1988, the attorneys’ fees provisions related
to those statutes.
2.
In light of the considerations raised by our sister circuits,
as well as the plain language and legislative history of the
fee-shifting provisions at issue here, we must conclude that
the intervenors are entitled to attorneys’ fees.
Due to the unusual procedural history of this case, we
think it simply is not realistic to view the intervenors as
defendants opposing a civil rights claim. Unlike the inter-
vening defendant in LULAC, who “participated in all ways
as one defending against a civil rights claim and not as one
seeking to establish and rectify a violation of civil rights,” id.
at 368, the intervenors’ position can be analogized to that of
co-plaintiffs asserting their own rights, especially given
their involvement in the Hastert litigation.
The State submits that the intervenors should not be “re-
align[ed] . . . as plaintiffs” in this voting rights case simply
because they are members of “minority group[s].”
Appellant’s Rep. Br. at 17-18. We agree. The intervenors’
race is not operative in our analysis; what matters is that
they successfully protected rights guaranteed to them under
the Constitution of the United States and the Voting Rights
Act. It is for this reason that we think their position in this
case can be analogized to that of traditional civil rights
12
plaintiffs.
12
The district court did not “realign[ ] [Intervenors] as plaintiffs
and then award[ ] them fees” as the State contends. Appellant’s
(continued...)
No. 03-3536 27
Awarding attorneys’ fees to the intervenors promotes the
underlying goals of the fee-shifting statutes. The efforts of
the intervenors furthered the rights that Congress sought to
protect in the civil rights statutes. See Wilder, 965 F.2d at
1205 (“[W]hen . . . intervenors effectuate the civil rights at
issue they are entitled to an award because such a result
furthers the civil rights statutes in a fashion envisioned by
Congress.”).
We agree, however, with the District of Columbia
Circuit’s statement in Donnell that Congress did not
“intend[ ] that . . . an award [of attorneys’ fees] be as nearly
automatic [for defendant-intervenors] as it is for a party
prevailing in its own right.” 682 F.2d at 246. Like our sister
circuits, we think that it is appropriate to ask whether the
efforts of an intervenor were duplicative of those of the
named defendant in a case. See id. at 249 (“[A]n award of
attorneys’ fees would be inappropriate . . . if the intervenor’s
submissions and arguments were mostly redundant of the
Government’s or were otherwise unhelpful.”); see also
Wilder, 965 F.2d at 1205. However, we think the intervenors’
efforts were not duplicative of the State’s efforts in any way
in this case. The district court’s findings that “the
intervenors carried the weight of the defense while the State
passively awaited the outcome,” R.204 at 7, are supported
13
amply by the record.
12
(...continued)
Rep. Br. at 17. There is no reason to require that a party be a
plaintiff to receive an award of attorneys’ fees under either
§ 1973l(e) or § 1988; the dispositive question is whether the party
prevailed.
13
We shall address below the State’s contention that the partici-
pation of the Attorney General in this case made the intervenors’
(continued...)
28 No. 03-3536
We also see no impediment in awarding fees to the
intervenors simply because they were aligned as interven-
ing defendants in this case. The general prohibition, an-
nounced in Christiansburg Garment Co., which purports to
prevent prevailing civil rights defendants from obtaining
fees unless “the plaintiff’s action was frivolous, unrea-
sonable, or without foundation,” 434 U.S. at 421, was
announced in a context in which a prevailing defendant
sought fees from a civil rights plaintiff. Indeed, in a sub-
sequent case, the Supreme Court noted the limitations on
the rule from Christiansburg Garment Co. See Zipes, 491 U.S.
at 760 (concluding that Christiansburg Garment Co. controls
whether the “prevailing defendant could be awarded
fees . . . against the plaintiff”).
The role that the intervenors played in this litigation can-
not be assessed in a vacuum. It must be viewed in relation
to the earlier Hastert litigation. In that context, it is clear that
the defendant-intervenors simply were protecting the earlier
adjudication of their rights. The Supreme Court has held
that prevailing plaintiffs are entitled to “[p]rotect[ ] . . . the
full scope of relief” awarded to them. Pennsylvania v.
Delaware Valley Citizen’s Council for Clean Air, 478 U.S. 546,
559 (1986) (“[P]ostjudgment monitoring of a consent decree
is a compensable activity for which counsel is entitled to a
reasonable fee.”). Our cases make clear that, absent some
authorization in the initial judgment itself to monitor
compliance, parties who seek to protect a previous victory
still must prevail in the action or proceeding brought to pro-
13
(...continued)
efforts duplicative and, therefore, constituted a “special circum-
stance” that should prevent the intervenors from recovering fees
and costs.
No. 03-3536 29
14
tect the victory in order to be entitled to attorneys’ fees.
Certainly, having prevailed on their civil rights claims in the
Hastert litigation, the intervenors were entitled to defend the
fruits of that litigation, the Hastert plan. “Intervention that
is in good faith is by definition . . . a means . . . of protecting
legal rights . . . .” Zipes, 491 U.S. at 765. Now they are
entitled to attorneys’ fees for their successful defense of the
Hastert plan.
Finally, awarding attorneys’ fees to the intervenors
promotes judicial efficiency. Parties such as the intervenors
should be encouraged to intervene in suits such as this one,
rather than bringing their own claims in subsequent suits.
If, instead of intervening here, the intervenors had brought,
and prevailed in, a separate action to force the State to use
the Hastert plan, then certainly they would be eligible for an
15
award of attorneys’ fees. See Hastert III, 28 F.3d at 1443. A
14
See, e.g., Alliance to End Repression v. City of Chicago, 356 F.3d
767, 769 (7th Cir. 2004) (noting that this court has held that
“plaintiff, having won a judgment in the district court, ‘had no
choice’ but to incur attorneys’ fees to defend the judgment . . .
[b]ut in that case, . . . the plaintiff was successful . . . enough to
make him the prevailing party,” and that, “[h]ad he lost on
appeal he would not have been entitled to any award of fees”
(quoting Ustrak v. Fairman, 851 F.2d 983, 990 (7th Cir. 1988))).
15
See also Indep. Fed’n of Flight Attendants v. Zipes, 491 U.S. 754,
764-65 (1989). In Zipes, the Supreme Court asked whether at-
torneys’ fees should be recoverable from intervening defendants.
The Court considered whether a fee award would have been
available had the intervenors in the case mounted a separate
collateral attack, rather than intervening. The Court reasoned that
“establishing . . . one-way fee liability . . . would foster piecemeal
litigation of complex civil rights controversies—a result that is
strongly disfavored.” 491 U.S. at 764.
30 No. 03-3536
regime under which interested parties have incentives to
bypass the opportunity to intervene in suits such as the one
at issue here and, instead, vindicate their rights as plaintiffs,
to whom attorneys’ fees are presumptively available, would
indeed be wasteful. As the Supreme Court noted in Zipes,
such a regime “would encourage interested parties to await
the entry of judgment and collaterally attack remedial
schemes. This would serve the interests of no one . . . .”
Zipes, 491 U.S. at 764-65.
Thus, in light of the facts of this case, we conclude that the
intervenors are prevailing parties entitled to reasonable
attorneys’ fees under § 1973l(e) and § 1988.
D. Source of the Fee Award
The State also submits that it is not the proper party
against whom to assess the intervenors’ attorneys’ fees. We
previously have noted that the fee-shifting statutes “do not
specify with particularity those who may be called upon to
shoulder . . . fee awards.” Charles, 846 F.2d at 1063 (citing
Graham, 473 U.S. at 164). The State argues that it is relieved
from liability for attorneys’ fees in this case by the Supreme
Court’s statement in Kentucky v. Graham that “the logical
place to look for recovery of fees is to the losing party—the
party legally responsible for relief on the merits.” 473 U.S.
at 164. Therefore, the State contends that assessing attor-
neys’ fees against it is “simply not logical” because it claims
to be a winning party. Appellant’s Br. at 19.
In Graham, “[t]he question presented [was] whether 42
U.S.C. § 1988 allows attorney’s fees to be recovered from a
governmental entity when a plaintiff sues governmental
employees only in their personal capacity and prevails.” 473
U.S. at 161. Specifically, the Court addressed the question of
whether, in a suit from which the Commonwealth of
No. 03-3536 31
Kentucky enjoyed Eleventh Amendment immunity, the
Commonwealth nonetheless could be held responsible for
16
a prevailing plaintiff’s attorneys’ fees. Id. at 172.
This court already has “decline[d] to read Graham as
standing for a holding broader than the Court’s own stated
intention in deciding the case.” Charles, 846 F.2d at 1068. In
fact, we have noted that “Graham merely explores the nar-
row issue of a government entity’s liability for section 1988
fees when a prevailing civil rights plaintiff, as a result of the
operation of the Eleventh Amendment, has successfully
sued state officials but only in their personal capacity.” Id.
We shall not read Graham as broadly as the State of Illinois
encourages; for this reason, we think Graham’s statement
that “the losing party” is “the logical place to look for re-
16
In Graham, the plaintiffs brought a civil rights suit seeking
only damages and named the Commonwealth of Kentucky as one
defendant in the suit. 473 U.S. at 161-62. After the Commonwealth
had been dismissed from the suit on Eleventh Amendment
grounds and after the plaintiffs had entered into a settlement
agreement with the other defendants that barred them from
seeking attorneys’ fees from those defendants, the plaintiffs
attempted to obtain attorneys’ fees from the Commonwealth. The
Court determined that attorneys’ fees could not be assessed
against a state in such a suit, which, for Eleventh Amendment
purposes, only could be brought against a state official in his
personal capacity. Id. at 171. In directing the plaintiffs in Graham
to look to a losing party for attorneys’ fees, the Court emphasized
its holding that there is no “fee liability where merits liability is
nonexistent.” Id. at 168. The Court wrote that “[o]nly in an
official-capacity action is a plaintiff who prevails entitled to look
for relief, both on the merits and for fees, to the governmental
entity.” Id. at 171. In this case, the State contends neither that it is
immune from suit nor that it is immune from having an attor-
neys’ fee award assessed against it.
32 No. 03-3536
covery of fees” is not instructive for the purposes of this
case. Graham, 473 U.S. at 164.
The State also contends that fees and costs must not be
assessed against one “winning” defendant and in favor of
another “winning” defendant. Appellant’s Br. at 19. Al-
though the Court in Graham also stated that, “where a
defendant has not been prevailed against, either because of
legal immunity or on the merits, § 1988 [and § 1973l(e)] do[ ]
not authorize a fee award against that defendant,” 473 U.S.
at 165, as we explained above, we do not think that holding
“is properly applicable to cases, such as this one, that are
factually, and in other material respects, distinguishable,”
Charles, 846 F.2d at 1067.
We have recognized that “the test for a prevailing party
must be one that does not exalt form over substance.” Id. at
1065. Therefore, the fact that the party suing the State did
not prevail on the merits of this litigation does not mean
that the State is a prevailing party, especially in light of the
State’s failure to defend the Hastert plan. The district court
found that “the State’s explicitly neutral stance regarding
the disposition of this case makes it difficult for the court to
deem them the ‘prevailing party.’ Notwithstanding the
determination of the formal judgment, the posture adopted
by the state does not satisfy the standard for a prevailing
party.” R.204 at 12. We agree with the district court’s
characterization of the State’s activity in this case. In fact, we
believe that, when the State has failed to defend actively
against a voting rights claim as the State did here, the State
cannot be said to have prevailed in the litigation in the
manner required by the fee-shifting statutes. When we con-
sider whether a “material alteration of the legal relationship
of the parties,” as described by the Supreme Court, occurred
here, we must conclude that the State did not prevail over
the plaintiff in this case. Garland, 489 U.S. at 792-93. Rather,
No. 03-3536 33
the district court rejected the State’s ambivalent position
toward the Hastert plan, and the Supreme Court affirmed.
Furthermore, this court already has found that “nothing
in the express language of section 1988 or in its legislative
history nor pertinent case law conclusively link[s] a party’s
liability for substantive relief with liability for fees.” Charles,
846 F.2d at 1070. This court already has rejected the position
that “a party’s liability for relief is an absolute prerequisite
to liability for section 1988 fees.” Id. at 1066 n.13. Therefore,
the fact that the map maintained by the State was not
declared unconstitutional in the litigation on the merits
“does not require that [the State] be immune from fee
liability pursuant to section 1988.” Id. at 1070 (emphasis in
original).
Therefore, despite the State’s arguments to the contrary,
we think that it is entirely logical to assess attorneys’ fees
against the State in this case, particularly since all other
potential sources of the intervenors’ attorneys’ fees have
been foreclosed by the decisions of the Supreme Court. For
instance, we shall not assess the fee award against the
plaintiffs in this case. It remains the rule that a prevailing
party may recover attorneys’ fees from a civil rights plaintiff
only when the plaintiff’s suit proves to be “frivolous,
unreasonable, or without foundation, even though not
17
brought in subjective bad faith.” Christiansburg Garment
Co., 434 U.S. at 421; see also Flaherty, 40 F.3d at 62. Assessing
attorneys’ fees against the plaintiffs in this case would work
precisely the harm the Supreme Court warned about in
17
Indeed, the State does not allege that the plaintiffs’ litigation
was “frivolous, unreasonable, or without foundation.”
Christiansburg Garment Co., 434 U.S. at 421.
34 No. 03-3536
Christiansburg Garment Co.: Future civil rights plaintiffs
would be deterred from bringing potentially meritorious
claims, out of the fear that they would have to pay a defen-
18
dant’s legal fees if they could not establish their claim.
However, to require the intervenors to pay their own
attorneys’ fees and costs also would frustrate the purposes
of the voting rights provisions at issue here. This case
presents the unique circumstances which Congress antici-
pated when it enacted § 1973l(e) and § 1988: A defendant-
intervenor is the party vindicating rights guaranteed by the
19
United States Constitution and federal voting rights laws.
Because the intervenors were vindicating their civil rights,
we think that the appropriate party from whom to seek fees
in this case is indeed the State. Certainly, fee awards may
issue against state and local governments. Hutto v. Finney,
437 U.S. 678, 694 (1978). Regardless of whether the State is
the “losing” party, it is the party “legally responsible for
relief.” Graham, 473 U.S. at 164. The Constitution and the
Voting Rights Act impose a responsibility upon the State to
conduct congressional elections, U.S. Const. art. I, § 4, cl. 1,
and forbid the State from abridging or denying the right to
vote on account of race or color, U.S. Const. amend. XV, cl.
1, or on account of membership in a language minority
18
See Christiansburg Garment Co., 434 U.S. at 422 (“To take the
further step of assessing attorney’s fees against plaintiffs simply
because they do not finally prevail would substantially add to the
risks inhering in most litigation and would undercut the efforts
of Congress to promote the vigorous enforcement of [civil rights
laws].”); see also S. Rep. No. 94-1011, at 5 (parties “seeking to
enforce the rights” protected by civil rights legislation function as
“private attorneys general” and “should not be deterred from . . .
vindicat[ing] . . . fundamental rights . . . by the prospect of having
to pay their opponent’s counsel fees should they lose”).
19
See S. Rep. No. 94-1011, at 4 n.8; S. Rep. No. 94-295, at 40 n.42.
No. 03-3536 35
group, 42 U.S.C. §§ 1973 & 1973b(f)(2). Thus, the Illinois
State Board of Elections is responsible for the relief re-
quested by both the plaintiff and the intervenors in this case:
to have congressional elections conducted in accordance
with the United States Constitution and federal law govern-
ing elections.
As this court held in Hastert III, it is appropriate to assess
an attorneys’ fee award against the Board of Elections here,
where “the political branches . . . fail[ed] to vindicate
important rights.” 28 F.3d at 1444. That is what happened
when the Board of Elections failed to defend the Hastert
plan. We noted in Hastert III that, whether a congressional
districting map is arrived at through the “legislative . . .
process that typically attends congressional redistricting” or
through “the federal judicial arena,” the State is responsible
for adopting an appropriate congressional districting plan.
Id. at 1443 (internal quotations omitted). The State cannot
escape the costs of creating and maintaining that plan by
failing to take an active role in redistricting litigation,
thereby forcing individuals like the intervenors to bear the
cost of protecting their rights. For these reasons, we con-
clude that the district court appropriately assessed attor-
neys’ fees against the State.
E. Special Circumstances
Finally, we turn to the question of whether so-called “spe-
cial circumstances” should prevent the award of attorneys’
fees. We have recognized that a court’s decision whether to
award attorneys’ fees, although “commit[ted] . . . to a
district court’s discretion” by statute, “is . . . quite narrow
once prevailing party status has been determined.” Id. at
1443 (citing New York Gaslight Club, Inc. v. Carey, 447 U.S. 54,
68 (1980)). Nonetheless, we shall address the State’s conten-
36 No. 03-3536
tion that “special circumstances” should preclude an
attorneys’ fee award in this case. Appellants’ Br. at 33. The
State submits, for the first time on this appeal, that the
participation of the Attorney General of the United States in
this case constitutes a special circumstance that should
prevent the intervenors from recovering their fees in this
case. The intervenors contend that the State waived this
argument by not presenting it below and that, in the
alternative, the State’s argument fails on the merits. Based
on the facts of this case, we must agree with the intervenors.
“[I]ssues not raised below are waived on appeal.” Weigel
v. Target Stores, 122 F.3d 461, 464 (7th Cir. 1997). To deter-
mine whether an argument has been waived, “we must take
[a party’s] case as [he] presented it to the district court.” Id.
The State filed both a motion in opposition to the
intervenors’ petition for attorneys’ fees and costs, in which
it objected to the designation of the intervenors as prevail-
ing parties entitled to fees and costs, and a motion respond-
ing to the intervenors’ supplemental petition for attorneys’
fees and costs, in which it also objected to the amount of
fees and costs which the intervenors had requested. In
neither of these filings did the State contend that the work
done by the United States, through the Attorney General
and the Department of Justice, made it inappropriate to
award attorneys’ fees to the intervenors.
However, even if the State had not waived this argument,
it would not be a convincing one. This court never has
considered whether intervention by the United States as a
defendant constitutes a “special circumstance” which
should preclude an award to another defendant-intervenor.
In these circumstances, we find guidance in the opinions of
our sister circuits that have considered similar questions.
The concerns expressed by the District of Columbia Circuit
in Donnell, 692 F.2d at 244, and by the Second Circuit in
No. 03-3536 37
Wilder, 965 F.2d at 1205, inform our conclusion that there are
no “special circumstances” here, despite the presence of the
United States as an intervenor. There is a meaningful
difference between the situation in Donnell, in which the
District of Columbia Circuit denied the intervenors’ fees,
and the facts of this case. In Donnell, the plaintiffs’ suit was
brought against the United States and the United States
actively defended against the suit from the start. See 692
F.2d at 244. In this case, on the other hand, the State, which
was named as a defendant in this case, took the position
that it was not “incumbent” upon it to defend the congres-
sional districting map adopted after Hastert. R.144, Ex.18 at
3. Obviously, the intervenors’ efforts were not redundant of
the efforts of the named defendant, because the State had no
intention of representing the intervenors’ interests as the
victors in an antecedent voting rights suit.
In this case, unlike the situation presented in Wilder, there
was no party “adequately represent[ing]” the intervenors’
interests before they intervened. Wilder, 965 F.2d at 1205. In
Wilder, the Second Circuit questioned whether the interests
of the intervenors already were protected adequately by
other litigants at the time the intervenors entered the case.
Id. When the intervenors in this case sought leave to inter-
vene, however, the United States had not yet entered the
case. As a result, at the time they intervened, the intervenors
were not seeking to ride the coattails of a governmental
entity already engaged in defending the suit. In fact, we
think the intervenors clearly were effectuating the “policies
underlying private attorneys general and intervention”
when they intervened. Id.
The subsequent intervention of the United States as a
defendant-intervenor in this case does not change our con-
clusion. We are not convinced that the intervenors’ efforts
were so duplicative of those of the Department of Justice
38 No. 03-3536
that the intervenors did not contribute materially to the
outcome of the case. In particular, we are mindful of a state-
ment made by the district court on the merits in Hastert I.
Although the court ultimately adopted the Hastert plan, it
noted that both the Hastert and Rosebrook plans “would have
passed constitutional and legal muster had either plan been
the product of the state legislative process.” See Hastert I,
777 F. Supp. at 662. This statement lends some support to
the view that some constitutional alternative to the Hastert
plan might have been adopted in this case, had the
intervenors not taken part in the litigation. Therefore, we
think that the presence of the intervenors was important to
the specific outcome in this case, that is, the maintenance of
the Hastert plan for Illinois’ congressional districts.
We also note that district courts are best situated to
determine whether a prevailing intervenor’s participation
was so unimportant that the intervenor does not deserve an
20
award of attorneys’ fees. In this case, the district court
witnessed the way the parties conducted litigation firsthand
and determined that “the intervenors carried the weight of
the defense while the State passively awaited the outcome.”
R.204 at 7. The district court also stated that “the intervenors
can rightly claim the victory had in King as hard-won fruit
of their labor.” Id. We shall not disturb that finding. There-
fore, we conclude that the participation of the United States
in this case does not constitute a “special circumstance” that
precludes the award of attorneys’ fees to the intervenors.
20
See also Wilder v. Bernstein, 965 F.2d 1196, 1205 (2d Cir. 1992) (en
banc) (“Any adjustment in the fee award based upon the extent
to which a party’s participation contributed to the ultimate
remedy, including considerations of duplication and motivations
other than civil rights, rests appropriately in the district court’s
sound discretion.”).
No. 03-3536 39
Conclusion
For the reasons set forth in this opinion, the judgment of
the district court is affirmed.
AFFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-13-05