Gautreaux, Dorothy v. Chicago Housing

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 05-3578

DOROTHY GAUTREAUX, et al.,

Plaintiffs-Appellees,

v.

CHICAGO HOUSING AUTHORITY and TERRY PETERSON,

Defendants-Appellants,

v.

DANIEL E. LEVIN and THE HABITAT COMPANY LLC,

Receivers-Appellees,

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 66 C 1459—Marvin E. Aspen, Judge.

____________

ARGUED SEPTEMBER13, 2006—DECIDED JUNE 26, 2007

____________

Before CUDAHY, WOOD, and WILLIAMS, Circuit Judges.

WOOD, Circuit Judge. This appeal presents the latest

phase of the long-running litigation over racial discrimina-

tion in public housing in Chicago that bears Dorothy

Gautreaux’s name. See Gautreaux v. Chicago Housing

Auth. (CHA), 296 F. Supp. 907 (N.D. Ill. 1969) (Gautreaux

I) (finding the CHA liable for racial discrimination in site-

selection policy and tenant assignment); Gautreaux v.

CHA, 304 F. Supp. 736 (N.D. Ill. 1969) (Gautreaux II)

2 No. 05-3578

(entering remedial order). It concerns the district court’s

decision to grant attorneys’ fees to the plaintiffs’ attorneys

for work they did between August 1, 2001, and July 31,

2003. The CHA, which is responsible for the fees, argues

that this court should reverse that order. It starts from

the premise that the proceedings before the district court

ought to be treated as free-standing litigation. When seen

in that light, the CHA continues, the proceedings did not

result in the kind of victory for plaintiffs that would

make them “prevailing parties” entitled to fees. In the

alternative, the CHA urges us to find that even if plain-

tiffs are entitled to some fees, the district court abused its

discretion in the award it granted. We conclude that even

if the link between these proceedings and earlier parts of

the case is broken, the plaintiffs nonetheless prevailed,

and the district court did not abuse its discretion with

this fee award. We therefore affirm.

I

For present purposes, all that is necessary is a sum-

mary of the history of the case. More than four decades

ago, Dorothy Gautreaux and other African-American

tenants who lived in public housing projects, along with

applicants for public housing, sued the CHA, claiming

that its policies with respect to the selection of sites for

public housing and for assignment of tenants were racially

discriminatory. The plaintiffs prevailed, see Gautreaux I,

supra, and the district court entered a remedial decree

that was designed to ban racially discriminatory site

selection and tenant assignment policies and to undo the

harm that had already occurred. See Gautreaux II, supra.

Central to the remedial decree was the requirement that

for every unit built in an area where the population was

more than 30% non-white (“Limited Areas”), the CHA had

to construct three housing units in an area where the

No. 05-3578 3

population was less than 30% non-white (“General Area”).

See Gautreaux II, 304 F. Supp. at 737-38. The ratio was

later modified to one-to-one. See Gautreaux v. CHA, 178

F.3d 951, 953 (7th Cir. 1999). The Gautreaux II remedial

order also limited new construction of public apartments

that had more than three floors and required changes to

tenant assignment practices. Gautreaux II, 304 F. Supp.

at 838-40. The order did not, however, require the con-

struction of any new housing.

The CHA reacted to Gautreaux II by instituting a virtual

moratorium on the construction of new housing that

lasted 18 years. At the plaintiffs’ behest, in 1987 the

district court appointed Daniel Levin and the Habitat

Company as a receiver for the development of all new non-

elderly housing for the CHA. See Gautreaux v. Pierce,

Order of Aug. 14, 1987. This indeed prompted some

change: the receiver built a number of small-scale public

housing units, which were scattered throughout the

General Area. In the 1990s, in part because of the avail-

ability of federal funds through the HOPE VI program (an

acronym for “Homeownership and Opportunity for People

Everywhere”), see 42 U.S.C. § 1437l, repealed by Pub. L.

105-276, Title V, § 522(a), Oct. 21, 1998, 112 Stat. 2564,

the CHA developed plans to overhaul its public housing

stock.

This culminated in 2000 with the CHA’s announce-

ment of the Plan for Transformation (the Plan), which the

CHA optimistically describes as a “blueprint for positive

change.” The Plan outlines how the CHA proposes to

replace all of Chicago’s high-rise public housing projects

with lower density mixed-income developments. See

http://www.thecha.org/transformplan/plan_summary.html

(last visited June 7, 2007). As CHA’s Executive Director,

Terry Peterson, explains, the “centerpiece” of the Plan is

“the creation of new, low-density, mixed-income communi-

ties on the sites and in the neighborhoods where [CHA]

4 No. 05-3578

ha[s] demolished the old high-rises. . . . [These develop-

ments] will allow public housing families to live in the

same kind of housing and the same kind of neighborhoods

as other Chicagoans.”

In deciding where to locate new construction that will

benefit from HOPE VI funds and be subject to the Plan,

the CHA has used the locations of the old high-rise

projects almost exclusively. These were the same locations

that were branded as racially isolated in Gautreaux I.

They fell within the Limited Areas, in which new construc-

tion was restricted by Gautreaux II. See Gautreaux v.

CHA, 178 F.3d at 953-55. In addition, some of the develop-

ments contemplated by the plan are mid-rise buildings

in which public housing units are located above the third

floor. To avoid the Gautreaux II restrictions when spending

federal dollars, the CHA asked the district court in 1998

“to ‘clarify’ the judgment order and read it as not govern-

ing the use of HOPE VI funds.” The court declined to do so;

instead, it concluded that “any construction of public

housing in Cook County must conform to the judgment

order’s locational requirements.” Gautreaux v. CHA, 4

F. Supp. 2d 757, 760 (N.D. Ill. 1998). Other construction

under the Plan similarly has continued to operate within

the restrictions of Gautreaux II’s remedial order.

The result of the continued application of the remedial

order to this new construction was, as Terry Peterson

attested, that “[t]he Gautreaux case presented a major

obstacle to the Plan for Transformation. . . . [U]nless the

1969 judgment order was modified, [the CHA] could not

proceed with the Plan.” What the CHA has had to do, in

essence, is to negotiate new building plans with plaintiffs,

whenever the Plan would require something inconsistent

with Gautreaux II. The plaintiffs have been cooperative.

Beginning with the redevelopment of the Henry Horner

housing project on the City’s near west side in 1995, the

No. 05-3578 5

plaintiffs repeatedly have joined the CHA in requests for

waivers from the district court of various restrictions in

its remedial decree, so that construction of replacement

public housing units can go forward.

In these joint motions, the Gautreaux plaintiffs have

never conceded that the limits in the decree are no longer

relevant. Rather, they have taken a case-by-case ap-

proach to waiver requests. For example, in proposing the

waiver of Gautreaux II’s conditions for the Horner redevel-

opment, plaintiffs asked the court to relax the site re-

strictions because they believed “that a proposed mixed-

income redevelopment on and around the . . . site offered

the prospect of better housing conditions for plaintiff

families in the near term as well as the possibility of racial

integration in the future.” After the Horner redevelop-

ment, plaintiffs have continued to join the CHA in asking

the district court to waive the remedial conditions, but

only for redevelopment projects that present the right

conditions and only with particular restrictions negoti-

ated by the parties.

The agreed order arrived at by the parties to allow the

Horner revitalization to proceed in 1996 provided the

model for much of what has occurred over the last decade,

including the August 1, 2001, to July 31, 2003, period in

which the attorneys’ fees at issue were accumulated.

During those two years, the district court entered five

orders, each of which was agreed to by the parties. The

first four were, according to Peterson, “examples of the

kind of orders that CHA has sought from the Gautreaux

plaintiffs so that [it] could proceed with the Plan.” An

order entered on September 7, 2001, waived the restric-

tions on units above the third story of any structure in

four mid-rise buildings and fourteen walk-ups that were

part of the redevelopment of the Cabrini Extension North

housing project. An August 29, 2002, order modified

Gautreaux II’s directives with respect to the Tenant

6 No. 05-3578

Assignment plan, giving priority for housing in scattered-

site units to individuals and families displaced from their

public housing units by the Plan; those units formerly

had been earmarked for CHA transfer and waiting-list

families. The September 11, 2002, order allowed the

building of new mixed-income housing on the sites of

the former Ida B. Wells, Darrow, and Madden Park

projects in the North Kenwood-Oakland neighborhood. The

December 12, 2002, order allowed the expansion of the

Horner revitalization area and the construction of an

additional 271 units of housing. It also modified the

height restriction and released Gautreaux funds to be

used in the construction. Finally, the order of March 18,

2003, revised the official list of Cook County Limited Area

Census Tracts. See Gautreaux II, 304 F. Supp. at 742.

Over the years, the Gautreaux plaintiffs’ attorneys have

requested attorneys’ fees on a number of occasions for

their ongoing work on the case. Since the 1969 judgment,

the court has awarded fees on four occasions: (1) for the

period from 1965 to 1980, it awarded $375,375 for 3,003

hours of work; (2) for the period from 1984 through 1996,

it awarded $1.15 million; (3) for the period from October

16, 1996, to September 24, 1999, it awarded $991,329; and

(4) for the period between September 25, 1999, and July

31, 2001, plaintiffs’ attorneys received $844,815.38.

The present fee petition requested compensation for

work done between August 1, 2001, and July 31, 2003. The

district court concluded that the attorneys were entitled

to $724,732 in fees and $3,706 in related expenses. In

making this award, the district court reasoned that

[t]he post-decree proceedings and related work for

which fees are presently sought are not “clearly separa-

ble” from the original judgment order. . . . [T]his case

involves post-judgment work and proceedings that are

all part of one active equitable case, in which compli-

No. 05-3578 7

ance has always been at issue, and modifications and

clarifications of the original judgment order must

continuously be made to account for changing condi-

tions and circumstances.

In addressing the reasonableness of the fees, the court

found that the fees requested were “comparable to the two

prior agreed orders involving Plaintiffs’ fees.” It also

found that the plaintiffs’ attorneys had appropriately

eliminated certain duplicative expenses and had shown

that the tasks they performed were within the scope of

the consent decree and consistent with the earlier fee

orders. Finally, the court was satisfied that the proposed

market rates were reasonable. As a result, it granted

the requested fees and costs.

II

We begin by noting that, although this fee order may

appear to be “non-final,” since it is merely one in a line of

similar such orders and nothing in the present record

purports to be a final termination of the litigation, appel-

late jurisdiction is secure. It qualifies as a collateral order

that is final for purposes of 28 U.S.C. § 1291, because it

finally determines the fee question for the period at issue.

See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541,

546 (1949); see also Gautreaux v. CHA, 690 F.2d 601 (7th

Cir. 1982). Our observation in Alliance to End Repression

v. Chicago, 356 F.3d 767 (7th Cir. 2004), is equally apt

here: “Another reason for allowing an immediate appeal

is that a decree might never be dissolved, so that to treat

fee awards as interlocutory might defer appeal to the

end of time.” Id. at 771. Nothing in Sole v. Wyner, ___

U.S. ___, 127 S.Ct. 2188 (2007), casts doubt on these

rules. Sole dealt only with the question whether a party

who had won a preliminary injunction but who had

ultimately lost on the merits could be a “prevailing party”

8 No. 05-3578

for purposes of fees. The Court concluded that it could

not, noting at the end of its opinion that it was expressing

no view on the question whether, “in the absence of a

final decision on the merits of a claim for permanent

injunctive relief,” fees might sometimes be permissible.

Here, of course, the Gautreaux plaintiffs did win perma-

nent injunctive relief, albeit relief that has been modified

from time to time, and the court’s order finally resolved

the fee question for the defined period. We thus proceed

to the merits of the appeal.

In general, we review a district court’s decision to award

attorneys’ fees for abuse of discretion. King v. Ill. State Bd.

of Elections, 410 F.3d 404, 411 (7th Cir. 2005). As the

Supreme Court pointed out in Cooter & Gell v. Hartmarx

Corp., 496 U.S. 384 (1990), however, “[a] district court

would necessarily abuse its discretion if it based its ruling

on an erroneous view of the law or on a clearly erroneous

assessment of the evidence.” Id. at 405. Our review of the

underlying legal issues is de novo. See Dupuy v. Samuels,

423 F.3d 714 (7th Cir. 2005). Here, we must decide

whether the Gautreaux plaintiffs still qualify as “prevail-

ing parties” for purposes of 42 U.S.C. § 1988, the statute

that authorizes fees for successful civil rights plaintiffs.

Under the traditional “American Rule,” parties to a

lawsuit bear their own costs. Sole, 127 S.Ct. at 219 (citing

Alyeska Pipeline Service Co. v. Wilderness Society, 412 U.S.

240, 247 (1975)). In actions brought under 42 U.S.C.

§ 1983, however, “the court, in its discretion, may allow a

prevailing party, other than the United States, a reason-

able attorney’s fee as part of its costs.” 42 U.S.C. § 1988.

The district court concluded that, once again, the plaintiffs

were “prevailing parties” entitled to attorneys’ fees. In its

challenge to that finding, the CHA argues that the Su-

preme Court’s decision in Buckhannon Bd. and Care

Home, Inc. v. West Virginia Dep’t of Health and Human

No. 05-3578 9

Res., 532 U.S. 598 (2001), as well as this court’s ruling in

Alliance to End Repression v. Chicago, supra, 356 F.3d

767, require a ruling in its favor.

We agree with the CHA that the Supreme Court’s

decision in Buckhannon throws some light on the issue

before us, even though it does not directly control the

outcome here, for it was a case in which no remedial order

ever was entered by the district court. Nonetheless,

Buckhannon reshaped litigation over attorneys’ fee

awards. The narrow question before the Court was

whether the definition of “prevailing party” in § 1988

included a plaintiff whose lawsuit was a “catalyst” that

“achieved the desired result because [it] brought about a

voluntary change in the defendant’s conduct.” 532 U.S. at

600. The Court concluded that this was not enough.

Instead, to be considered a “prevailing party” under § 1988

a plaintiff needs to win a “judicially sanctioned change

in the legal relationship of the parties. . . . A defendant’s

voluntary change in conduct, although perhaps accom-

plishing what the plaintiff sought to achieve by the

lawsuit, lacks the necessary judicial imprimatur on the

change.” 532 U.S. at 605. Either an enforceable judg-

ment on the merits or a settlement agreement enforced

through a consent decree may qualify as the necessary

court-ordered change. Following this logic, we have held

that cases in which “the terms of the settlement were

incorporated into the dismissal order and the order was

signed by the court rather than the parties, or the order

provided that the court would retain jurisdiction to enforce

the terms of the settlement,” have a sufficient judicial

imprimatur to entitle the plaintiff to prevailing-party

status. Petersen v. Gibson, 372 F.3d 862, 866-67 (7th Cir.

2004); see also T.D. v. LaGrange School Dist. No. 102, 349

F.3d 469, 478-80 (7th Cir. 2003).

Alliance applied Buckhannon to postjudgment proceed-

ings, where the underlying case resulted in the entry of

10 No. 05-3578

an equitable decree. There, a 1981 consent decree limited

the ability of the Chicago Police Department to engage in

surveillance of allegedly subversive activities. Plaintiffs’

attorneys had asked for fees for legal services rendered

in two failed proceedings for contempt, as well as an

unsuccessful defense of the consent decree (which wound

up being modified). See 356 F.3d at 768-69. This court

overturned the district court’s fee award, rejecting plain-

tiffs’ argument that their initial victory in the litigation

was enough to make them the prevailing party for the

life of the decree. Id. at 770-74.

Alliance necessarily also rejected the argument that

post-decree proceedings are inevitably part of only one

active, equitable case. At least in the circumstances of

Alliance, we concluded instead that the particular post-

decree proceedings before us had to be evaluated as free-

standing litigation. We relied in part on Buckhannon

in coming to that conclusion. Normally, postjudgment

litigation in a complex equitable proceeding is better

viewed as largely free-standing from the underlying case.

This distinguishes post-judgment efforts from unsuccess-

ful motions made en route to the successful conclusion of a

lawsuit, which can be compensated as “indispensable

inputs in a successful conclusion of litigation.” 356 F.3d

at 771. In cases like Alliance, “the postjudgment proceed-

ings . . . , coming as they did so many years after the

consent decree went into effect, are clearly separable from

the proceeding that led up to the entry of the decree.” Id.

The district court here thought that it was enough that

the post-decree proceedings for which the plaintiffs

sought fees were not “clearly separable” from the original

judgment order. After Alliance, that strikes us as too

lenient a standard. In any event, here as in Alliance so

many years have passed and so many modifications have

been made to the decree, we conclude that we must look at

No. 05-3578 11

the time period for which fees are being sought (roughly

mid-2001 through mid-2003, as we noted earlier) as free-

standing litigation. The question before us is whether

the Gautreaux plaintiffs were correctly characterized as

prevailing parties for that set of proceedings.

In arguing that the plaintiffs are not entitled to be

regarded as having won anything notable, the CHA

focuses on the transformation of its relationship with the

plaintiffs from one of opposition to one of cooperation.

Unlike the earlier periods for which the plaintiffs re-

ceived fees, when the CHA was actively fighting them, it

now depicts the parties as essentially all on the same

team. (If this were actually the case, there would be a

serious question whether any case or controversy re-

mains to be decided. Given our conclusion below that it

is not, however, our jurisdiction is not threatened on this

basis.)

As the CHA tells the story, whereas it once was obdu-

rate, it now has “scrupulously honored the terms of the

judgment order and diligently sought modification of the

judgment order so it could properly proceed with the

Plan . . . .” Although the CHA cannot make the legal claim

that it is in the same position as the defendants in Alli-

ance, it makes the same claim rhetorically, casting the

plaintiffs as defenders of an obsolete consent decree

that serves almost no function. The CHA submits that

Gautreaux plaintiffs’ only role was to “simply

acquiesce[ ] in getting out of the way.” Implicitly, the

CHA is saying that anything plaintiffs do to allow the

CHA to implement the Plan cannot amount to plaintiffs’

success on the merits.

The glaring difficulty for the CHA, of course, is that it

is not in the same position as the defendant Chicago

Police in Alliance, for it remains bound by the district

court’s 1969 Gautreaux II remedial order. In Alliance, the

12 No. 05-3578

court found that by the time modification was sought,

“[t]he decree in its original form had accomplished its

purpose and had become obsolete.” Alliance, 356 F.3d at

774. Here, in contrast, the CHA’s motion to “clarify” the

decree to reflect the changed circumstances was re-

jected. There has been no system-wide modification of the

injunction and no showing (as of the time the district

court ruled here) that the public housing system has been

desegregated enough to warrant dissolution or modifica-

tion of the decree. Importantly, the CHA has never re-

quested such dissolution, even though it did seek clarifica-

tion of the judgment in 1998. This court has already

commented on the fact that this option remains open to

the CHA. See Gautreaux v. CHA, 178 F.3d at 958 (“If

CHA is displeased with the 1969 injunction, the receiver-

ship order, or the recent district court orders flowing

from them, then it should seek to modify or terminate

any or all of them.”). As things stand now, we are not at

liberty to treat the injunction as though it no longer exists.

Gautreaux II is still in effect, and the court’s five joint

orders between August 2001 and July 2003 were shaped

by the remedial decree. The CHA makes two errors in

arguing that the Gautreaux plaintiffs gained nothing

from any of the orders related to the Limited Area re-

vitalization. The first mistake is the confusion of means

and ends—a mistake that is apparent in the CHA’s

characterization of plaintiffs’ waiver of some of the

dictates of Gautreaux II’s remedial order as “relinquish-

ing their own victory.” What plaintiffs have sought all

along is the desegregation of public housing in Chicago.

The Gautreaux II remedial order was nothing more than

the means by which the district court believed, in 1969,

that such desegregation could be effected. The fact that

the plaintiffs agreed to give up certain restrictions and

that the court agreed to allow CHA to fulfill its obligations

through other means does not amount to a white flag

from the plaintiffs.

No. 05-3578 13

Instead, as the district court has recognized ever since it

granted the first limited waiver of Gautreaux II’s restric-

tions for the Horner revitalization in 1995, opinions about

how to desegregate public housing have changed over the

30 plus years since the judgment. In addressing the

proposed Horner revitalization order, the court remarked

that the proposal “addresses a 21st century view of the

City of Chicago and its housing problem as opposed to the

1966 view that was properly the view at the time of the

filing of the Gautreaux litigation.” The court’s waivers of

particular parts of the remedial decree rest on its “being

cognizant that the principal remedial purpose of the

Orders previously entered in these consolidated cases

has been and is to provide plaintiff class families with

desegregated housing opportunities.” Gautreaux v. CHA,

Order of Sept. 12, 2002. In accordance with this goal,

carefully-tailored waivers have been entered under cer-

tain circumstances and for particular geographic areas.

The court has allowed housing to be built in Limited Areas

only “upon a sufficient showing of ‘revitalizing’ circum-

stances such that a responsible forecast of economic

integration, with a longer term possibility of racial deseg-

regation, could be made.” Gautreaux v. CHA, Order of June

3, 1996. These waivers have been agreed to because, in

plaintiffs’ opinion, they offer a better chance of achieving

what the Gautreaux suit has always sought—integration

in public housing—than would rigid insistence on the

provisions of the Gautreaux II decree.

The CHA’s second error is in failing to recognize that

the Gautreaux plaintiffs, through their limited waivers

of specific portions of the remedial decree, have achieved

success on the merits. The CHA admits that the agreed

orders are the product of negotiation. For example, in one

1997 motion to the district court, the CHA described the

effect of the remedial decree on their building of housing

under the Plan: “In the past the CHA has been forced to

14 No. 05-3578

negotiate with plaintiff counsel for approval of high-rise

developments, such as Horner and Lakefront, that were

funded in whole or in part with ‘Gautreaux development

money.’ As a result, the CHA’s [sic] ends up with an

agreed order to present to the Court, but not the program

that it would have created without having to negotiate

with plaintiff ’s counsel.” (Emphasis added.) In 1998,

Terry Peterson further described the negotiation of agreed

orders:

It’s the waiver process that is the most intru-

sive . . . . [H]ere’s how it goes in reality: CHA needs to

get a waiver from the Court to do a Hope VI program.

That means the Court will ask us to negotiate with

Mr. Polikoff, as plaintiffs’ representative. . . .

Mr. Polikoff will begin the negotiating by first

examining what neighborhood it is we’re focusing on;

next, what buildings do we want to demolish; next

what buildings do we want to rehabilitate; next, where

are we going to build the replacement housing; and

then it’s going to go all the way down to tenant selec-

tion and then to all of the other miscellaneous things

that were brought to the attention of the Court . . . .

So the negotiation that would be required by the

Court, and properly so, would bring the plaintiffs into

the whole program. It’s very intrusive. . . .

[T]hey are going to want to negotiate from the

beginning, and in order to get an agreed waiver we

would have to negotiate.

Now when the CHA negotiates and they agree on a

waiver and they bring it to you, they’re not happy

with that order. That’s what they’ve been able to

negotiate. That’s not what they wanted, it’s not what

they hoped for, but it was what there were able to

negotiate.

No. 05-3578 15

Plaintiffs could not say it any better themselves. The

CHA has had to change its position in order to win plain-

tiffs’ approval of the waiver orders, and that change

in position is embodied in judicial orders. The success on

the merits that plaintiffs achieved through the agreed

orders is most evident in the December 12, 2002, order.

The court concluded in this order that it should allow

building of more new housing in the Horner Revitalization

Area because there has been “a sufficient showing of

‘revitalizing’ circumstances such that a responsible

forecast of economic integration, with a longer term

possibility of racial desegregation could be made . . . .”

Moreover, the order conferred numerous benefits and

powers on the plaintiffs: it gave them control over “the

initial location and configuration” of the units in which

Gautreaux families would be housed above the third

floor; it fixed the maximum number of units of public

housing (271); it fixed the maximum ratio of public to non-

public units that could be built in the designated area

(35.5% public housing); it required equal distribution of

the public units throughout the complex; it required

annual written reports to be provided by the CHA to

plaintiffs; and it permitted the plaintiffs to allocate

some of the moneys from the “set aside” decree in a

companion case (Gautreaux v. Weaver, 66 C 1460 N.D. Ill.)

to the building of the new housing.

The order of September 7, 2001, reflects the same

attention to the plaintiffs’ demands. That order rests on a

similar conclusion about the possibility of creating “viable

mixed-income and desegregated housing opportunities

for CHA plaintiff families” in the area in which the

restrictions were being waived. The order specified the

number of units to be built in each of four mid-rise and 14

walk-up buildings. For example, the order waived the

three-story height restriction in the Renaissance North

Mid-Rise Building, which was to be built at 535 West

16 No. 05-3578

North Avenue and was to have 59 units, 18 of which

would be public housing dispersed throughout the build-

ing. It did the same for the 11 buildings in the order. The

third order dealing with revitalization, issued September

11, 2002, added approximately 100 acres to the North

Kenwood-Oakland revitalizing area, which had been the

subject of a June 3, 1996, order. The later order iden-

tified the portion of the Limited Areas in which the

receiver would be permitted to develop up to 850 units of

public housing. Finally, a fourth order, issued on August

29, 2002, resulted in an improved procedure for placing

families displaced from public housing that had been

destroyed as a result of the Plan into scattered-site units,

which are all located in the General Area. This was

designed to provide housing for the displaced families as

well as to try to help reduce chronic vacancy in the

scattered-site units built by the Gautreaux receiver. Even

if the fifth order did not deliver as much relief to the

plaintiffs, nothing says that they must have prevailed on

every single request during the time period at issue in

order to be viewed as “prevailing parties.” They achieved

substantial results, embodied in court orders, and that

is enough.

That the CHA and the Gautreaux plaintiffs agreed on

these orders cannot mean that the substantial benefits

flowing to the latter are not “fruits” of the litigation.

Buckhannon makes it clear that a judicially sanctioned

consent decree is a firm basis for a fee award. See 532

U.S. at 604. We conclude that plaintiffs have met their

burden of showing they were awarded “judicial relief ” and

that they are prevailing parties for § 1988 purposes.

III

The CHA’s final argument is that even if the Gautreaux

plaintiffs’ attorneys merited fees, the district court abused

No. 05-3578 17

its discretion by giving them too much. Our review of

the amount of fees awarded is highly deferential to the

district court: “If ever there were a case for reviewing

the determinations of a trial court under a highly deferen-

tial version of the ‘abuse of discretion’ standard, it is in

the matter of determining the reasonableness of the time

spent by a lawyer on a particular task in a litigation in

that court.” Ustrak v. Fairman, 851 F.2d 983, 987 (7th

Cir. 1988). CHA raises three principal objections to the

district court’s decision, none of which is sufficient to

demonstrate that the district court abused its discretion.

(We have no comment on the CHA’s additional complaints

about the adequacy of plaintiffs’ counsels’ annotated time

sheets and the few hours that were eliminated from the

plaintiffs’ total hour count but not their time sheets,

apart from saying that we find no merit in them.)

“In calculating reasonable attorneys’ fees, the district

court should first determine the lodestar amount by

multiplying the reasonable number of hours worked by

the market rate.” Bankston v. State of Ill., 60 F.3d 1249,

1255 (7th Cir. 1995). “The reasonable hourly rate used

in calculating the lodestar must be based on the market

rate for the attorney’s work. ‘The market rate is the rate

that lawyers of similar ability and experience in the

community normally charge their paying clients for the

type of work in question.’ ” McNabola v. Chicago Transit

Authority, 10 F.3d 501, 519 (7th Cir. 1993) (quoting

Eddleman v. Switchcraft, Inc., 965 F.2d 422, 424 (7th Cir.

1992)) (internal citation omitted). “The burden of proving

the market rate is on the party seeking the fee award.

However, once an attorney provides evidence establishing

his market rate, the opposing party has the burden of

demonstrating why a lower rate should be awarded.”

Uphoff v. Elegant Bath, Ltd., 176 F.3d 399, 407 (7th Cir.

1999) (internal citations omitted).

18 No. 05-3578

Plaintiffs’ attorneys have no paying clients, and so they

presented evidence as to what their reasonable fees

would have been through the affidavit of Attorney Lowell

Sachnoff. He represented that the time of plaintiffs’

various lawyers was compensable at the following rates:

$400 for lead counsel Alexander Polikoff (who has litigated

the case since it was filed); $350 for Julie Elena Brown and

Robert L. Jones, Jr.; $265 for Adam Gross; $240 for

Jonathan M. Kaden and Mary Anderson; $225 for Nicholas

J. Brunick; and $200 for Henry J. Ford, Jr., and Eloise P.

Lawrence.

Sachnoff is a director of Business and Professional

People for the Public Interest (BPI), the organization that

employs plaintiffs’ attorneys. The CHA argues that, as

a result of this relationship, Sachnoff has an interest in

BPI’s receiving as large a fee as possible and, therefore,

“his self-serving affidavit alone cannot satisfy a plaintiff ’s

burden of establishing market value for that attorney’s

services.” Uphoff, 176 F.3d at 408. The district court

was aware of Sachnoff ’s position, however, and was

within its discretion to regard this as going to the weight

of his evidence rather than its admissibility. Moreover, the

district court correctly noted that Sachnoff was just one of

more than 40 directors listed on the BPI website, or the

more than 50 on the Board as a whole. See About BPI:

Board of Directors, at http://www.bpichicago.org/board.

html (last visited June 7, 2007). Even where the lawyer

whose rate is being established works for the firm of the

affiant, there is no rule requiring the disqualification of

the affiant’s evidence about the billing rate. See Denius v.

Dunlop, 330 F.3d 919, 930-31 (7th Cir. 2003). Second,

whatever Sachnoff ’s incentives, they are not the kind of

direct financial incentives that existed in Uphoff, the

case on which defendant relies. There the district court

rejected rates supported only by an affidavit from the lead

lawyer in the case, who testified that “all of the requested

No. 05-3578 19

hourly rates” that he himself submitted, which also

covered the associates and paralegal in his firm, “are

commensurate with each respective attorney’s market

rate.” 176 F.3d at 407. Third, although the CHA wants

us to accept evidence of the fees it pays attorneys to

demonstrate that a lower rate should be awarded, it

has offered no convincing argument why the district

court was obliged to use the City’s pricing structure as

a proxy for what the market will bear.

Finally, even if its prior agreements on fee awards does

not bind the CHA here, see Evans v. City of Chicago, 10

F.3d 474 (7th Cir. 1993) (en banc), the rates established

there are legitimate evidence as to whether these rates

are reasonable. Because many of the lawyers have re-

mained the same, the district court was entitled to

find that the comparison was particularly instructive. In

March of 2002, for the period covering September 25, 1999,

to July 31, 2001, plaintiffs’ attorneys were granted fees

for which the rates were as follows: $360 for Polikoff;

$275 for Brown and Jones; $190 for Gross; $135 for Kaden;

and $130 for Brunick, then the most junior lawyer. In June

of 2000, for the period covering October 16, 1996, to

September 24, 1999, the rates were as follows: $360 for

Polikoff; $260 for Brown and Jones; $190 for Gross; and

$120 for Kaden, then the most junior lawyer. When this

evidence of the prior fees is taken together with the

affidavit, we can find no justification for concluding that

the district court abused its discretion in approving

these rates.

The CHA also objects to the number of attorneys plain-

tiffs assigned to the case. It is unhappy that plaintiffs used

the services of nine lawyers over the two-year period, even

though none of the lawyers spent all of his or her time

on this project. The greatest number of hours billed by

any one attorney over the two-year period was 530.675

20 No. 05-3578

by Nick Brunick (notably, an attorney with a billing rate

of $225); the fewest was Jonathan Kaden with 28.5.

Use of one or more lawyer is a common practice, primar-

ily because it often results in a more efficient distribution

of work. See Kurowski v. Kajewski, 848 F.2d 767, 776 (7th

Cir. 1988). It allows more experienced, accomplished, and

expensive attorneys to handle more complicated matters

and less experienced, accomplished, and expensive

counsel to handle less complicated ones. Having one

lawyer handle all of the work, as the CHA suggests, would

not necessarily result in lower costs for the defendant.

For example, had plaintiff ’s lead counsel, Mr. Polikoff,

billed all of the hours, the cost to the CHA would have

been around $1,029,600—an increase of almost 42% over

the $724,732 that plaintiffs actually billed. If Polikoff had

been the sole lawyer and the 489 hours of intra-team

communications were cut, the bill would still have been

around $834,000, more than 15% greater than the fees

approved by the district court. Hypothetical illustrations

aside, the fact that nearly 65% of the hours billed were

for work by attorneys whose fees were at the low end of

the range ($200-$265) illustrates how multiple lawyers

can lead to a more cost-efficient allocation of work.

The district court also did not abuse its discretion in

concluding that the time spent on intra-team communica-

tions was compensable. There is no hard-and-fast rule

as to how many lawyers can be at a meeting or how many

hours lawyers can spend discussing a project. Where the

district court has found, as it did here, that appropriate

trimming took place to bring the billed hours within a

reasonable range, it is not this court’s job to second-guess

that judgment.

The CHA’s third and final category of objections focuses

on the types of work for which plaintiffs’ attorneys billed.

CHA complains that the lion’s share of this work was

No. 05-3578 21

either not related to the postjudgment relief received or

it was non-compensable monitoring. CHA points to the

work of plaintiffs’ attorneys with respect to habitability,

tenant assignments, and participation in Working Groups

related to the development of certain revitalization

projects. On this point, the CHA again has the steep

burden of convincing us that the district court abused its

discretion when it held that “Plaintiffs have categorized

each billing entry to show that the underlying task is

within the scope of the [judgment order] and is consis-

tent with the past orders awarding fees to the Plaintiffs.”

Hensley v. Eckerhart, 461 U.S. 424 (1983), makes clear

that while the district court has no authority to order a

defendant to pay fees for time spent on matters unrelated

to the issues on which plaintiff prevailed, efforts on

matters related to the plaintiffs’ success are compensable.

See id. at 435-37. There is no specific formula to be used

in determining which efforts of plaintiffs’ counsel are

related, and appellate review of such decisions is deferen-

tial. See Jackson v. Illinois Prisoner Review Bd., 856 F.2d

890, 894 (7th Cir. 1988). So long as the plaintiffs’ lawyers’

activities are factually related to issues on which the

plaintiffs have achieved postjudgment judicial relief and

the work was reasonably calculated to result in relief, the

district court may grant attorneys’ fees.

The district court did not abuse its discretion in find-

ing that the efforts of plaintiffs’ attorneys here merited

attorneys’ fees. This work was related to the successful

postjudgment strategies that the plaintiffs pursued:

getting new mixed-income public housing built in accor-

dance with specific conditions, as well as ensuring that

scattered-site developments in the General Area are

habitable and being inhabited—precisely the issues for

which the district court has entered orders in this period.

Finally, with respect to the claim that plaintiffs’ activi-

ties were non-compensable monitoring, the prior agreed fee

22 No. 05-3578

orders establish a course-of-dealing in this case that

demonstrates what the expectations of the parties and the

court were at the time this work was undertaken. In

Alliance, we held that plaintiffs were not entitled to fees

for post-decree monitoring because such activities pro-

duced no enforceable order and because the Chicago

Police Board had been set up for the purpose of monitor-

ing. See 356 F.3d at 772-73. Plaintiffs’ counsel were not

“expected to be the enforcers of the decree.” Id. at 772.

Every case is different, however, and here, the court’s

orders and the course-of-dealing between the parties

demonstrates that plaintiffs—at times, in addition to the

court-appointed receiver—were expected to be the enforc-

ers of the decree. They could not perform the latter

function without at least some monitoring of their own.

We cannot find that the district court abused its discre-

tion in finding that the challenged activities of plaintiffs’

attorneys were compensable.

IV

In the end, the CHA is really arguing that the supervi-

sion of the building of public housing by the federal district

court is no longer necessary. Plaintiffs have made it

clear that they do not share that view. We reiterate

what we said in 1999: “If CHA is displeased with the

1969 injunction, the receivership order, or the recent

district court orders flowing from them, then it should seek

to modify or terminate any or all of them.” 178 F.3d at 958.

If it does so, all interested parties will have an oppor-

tunity to present their views to the district court. That

broad issue is not properly before this court. The only

question we have been asked to decide is whether plain-

tiffs’ attorneys are entitled to the fees that the district

court awarded them for their work from August 2001

through July 2003. We conclude that the plaintiffs are

No. 05-3578 23

still “prevailing parties” and that the district court did

not abuse its discretion in the amount of the fees it

awarded.

The order of the district court is AFFIRMED.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—6-26-07