Petition — Chicago Housing Authority v. Gautreaux
Supreme Court brief1983
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—— JAN 31 1983
Supreme Court of the United Stratis 5°”
OcTOBER TERM, 1982
THE CHICAGO HOUSING AUTHORITY,
Petitioner,
V.
DOROTHY GAUTREAL, ev ai.
Respondents.
ON PETITION FOR WRIT OF CERTIORARI TO
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
PETITION FOR CERTIORARI
PATRICK W. O'BRIEN
(Counsel of Record )
BEVERLEY J. KLEIN
MICHELE ODORIZZI
THE
231 South LaSalle Street
Chicago, Illinois 60604
(312) 782-0600
Attorneys for Petitioner
Of Counsel:
MAYER, BROWN & PLATT
231 South LaSalle Street
Chicago, Illinois 60604
CALVIN H. HALL
General Counsel
The Chicago Housing Authority
22 West Madison Street
Chicago, Illinois 60601
Dandick Prace Midwect Inc Chicagn e 454.761)
i
QUESTIONS PRESENTED
|. Whether the courts below erred in holding that. despite
the fact that a final judgment with respect to both liability and
remedy had been entered herein in 1969, the entire case was
nevertheless “pending” as of October 19, 1976 and plaintiffs*
could therefore be awarded fees under the Civil Rights At-
torneys’ Fee Award Act of 1976, 42 U. S. C. § 1988. for work
performed from the filing of the complaint in August, 1966 to
June, 1980.
2. Whether the courts below erred in awarding plaintiffs
attorneys’ fees for all proceedings, including those where
plainuffs failed to obtain the relief sought.
3. Whether the courts below erred in holding that
plaintiffs’ motion for fees, filed almost a year after the last
substantive proceedings were had in the case. was timely.
* When this case was originally filed in 1966. there were six
named plaintiffs in addition to Dorothy Gautreaux: Odell Jones.
Dorothea R. Crenshaw. Eva Rodgers. James Rodgers. Robert M.
Fairfax and Jimmie Jones.
TABLE OF CONTENTS
SE EE He URIEESIEES BIEED scccvcccsscccosssscccncensceseoseosecsoncese
EE SEE PUNT CRIRPIRE BEEEO csevevsccsvenssscscosescsconcnccscccsnensoes
TTT IIIIIITTEN ccccstaseancanséveusornnsdooneccenscoseserscosscoseneece
SIE TNIIIINT scisscsdetempsenssnseensochovenscseteessccconsecseccesevessosees
STATUTORY PROVISIONS INVOLVED ..............00008
I.
Il.
III.
The Court’s Decision That the Entire Gau-
treaux Case Was Pending on October 19.
1976 Conflicts With the Fifth Circuit Test and
Runs Contrary to the Congressional Intent in
IIE TINIE Licialicdicthuasentnonpsasiauesesssvnenecsenesies
This Case Also Raises the Issue of Whether
Fee Awards Should Be Proportioned to Re-
flect the Extent to Which a Plaintiff Has
ainda icasanemieiisididadnbiviennesinees
The Seventh Circuit’s Focus on Full
Implementation of the Decree Effectively
Eliminates any Time Limit on Motions for
14
TABLE OF AUTHORITIES
Cases
PAGE
Alveska Pipeline Service Co. v. Wilderness Society,
es ee POOR P xstisnisieclstiehintaaadaeainlarcetie 13
Bradley v. Richmond School Board, 416 U.S. 696
FI 9D sacsiisscceeastaacuaasladabakictatactadanaadbdniagambihacedideatecbaiiies 8.9
Chicago Housing Authority v. Austin, 411 F. 2d 82
Fe ete 1S OWED eivencceeancnasndsndoausonseitibibnesssisoiitenasbiea 12
David v. Travisono, 621 F. 2d 464 ( Ist Cir. 1980).. 10. 13
Escamilla v. Santos, 59\1 F. 2d 1086 (Sth Cir.
ITT FD nsivaphomnbstebisnaiieeacnchdbaannnbdinnbdacaanenlaiaiaiiss 10
Gautreaux v. Chicago Housing Authority, 296 F.
I Fare 4 ies Ss Bees. BOG P vccicsncinesassecsscenassonenssss 3
Gautreaux v. Chicago Housing Authority, 304 F.
Fae 6 ee a eR D aisiaseianisreiissntiieennes 3
Gautreaux v. Chicago Housing Authority, 436 F.
2d 306 (7th Cir. 1970), cert. denied, 402 U. S.
RIE WOO B icsneecinsiencascopindipnanteaniatinnisteabiaardacionamesinis 4
Gautreaux v. Chicago Housing Authority, 342 F.
Supp. 827 (N. D. Ill. 1972), aff'd, 480 F. 2d 210
(7th Cir. 1973), cert. denied, 414 U. S. 1144
EDD eisavsthecistoiate Wbaieiasnaihadebenthemnidimbetnadtinldcsdasiocte 4
Gautreaux v. Landrieu, 498 F. Supp. 1072 (N. D.
Si TD wicinsssasessaisecileansenbbeoanbalbiebantabaniatalinadc dudes 5
Gautreaux v. Romney, 448 F. 2d 731 (7th Cir.
Gonzales v. Fairfax-Brewster School, Inc., 569 F.
2d 1294 (4th Cir. 1978), cert. denied, 439 U.S.
EE © Wee Panini cakstnnoraoncteedniatabesedceeatitamappanatakse 10
Hensley v. Eckerhart, 664 F. 2d 294 (8th Cir.
1981), cert. granted, 455 U.S. 988 (1982) .......... 7.14
Hills v. Gautreaux, 425 U.S. 284 (1976) wc. 4
Morrison v. Ayoob, 627 F. 2d 669 (3d Cir. 1980),
cert. denied, 449 U.S. 1102 (1981)... eee eee
Northcross v. Board of Education, 6\1\ F. 2d 624
(6th Cir. 1979), cert. denied, 447 U. S. 911
DiS UN Di sisshiidadcainasnsiesnaddicusiasbaedibindiadeidaidsciebesadtcnabeseesath
Obin v. Internat’l Ass'n of Machinists & Aerospace
Workers, 651 F. 2d 574 ( 8th Cir. 1981 ).........00..
Peacock v. Drew Municipal Separate School Dist.,
433 F. Supp. 1072 (D. Miss. 1977), aff'd, 611
ie Be CN a BONED casnseccivsassspersncniesdonciecsse
Taylor v. Sterret, 640 F. 2d 663 (5th Cir. 1981 )......
White v. New Hampshire Dept. of Employment
SOCUTT, GSS U.S. GES ( 1GEZ) ccsccccesscscescssssccsseceee
Other Authority
H. Rep. No. 94-1558, 94th Cong. 2d Sess.. 1976
U.S. Code Cong. & Adm. News 5908 ...............4.
PAGE
IN THE
Supreme Court of the United States
OcTOBER TERM. 1982
THE CHICAGO HOUSING AUTHORITY.
Petitioner,
v.
DOROTHY GAUTREAUX, er al.,
Respondents.
ON PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
PETITION FOR CERTIORARI
Petitioner The Chicago Housing Authority (“CHA”)!
prays that a writ of certiorari issue to review the judgment and
opinion of the United States Court of Appeals for the Seventh
Circuit entered in this proceeding on August 30, 1982.
OPINIONS BELOW
The opinion of the district court granting plaintiffs’ motion
for attorneys’ fees in the amount of $375,375, Gautreaux v.
Landrieu, 523 F. Supp. 684 (N. D. Ill. 1981), appears in the
Appendix at page 30a. The opinion of the Seventh Circuit
' Pursuant to Sup. Ct. Rule 28.1, CHA states that it is a municipal
corporation, which has no parent companies, subsidiaries or affiliates.
2
affirming the judgment, Gautreaux v. The Chicago Housing
Authority, 690 F. 2d-601 (7th Cir. 1982), appears in the
Appendix at page la.
JURISDICTION
The judgment of the Seventh Circuit was entered on
August 30, 1982. A timely petition for rehearing with a
suggestion for rehearing en banc was denied on November 1,
1982. App. 44a. This Court’s jurisdiction is invoked under 28
U.S. C. § 1254 (1).
STATUTORY PROVISIONS INVOLVED
This case involves the application of the Civil Rights
Attorneys’ Fee Award Act of 1976, 42 U.S. C. § 1988, which
provides in relevant part as follows:
“In any action or proceeding to enforce a provision of
sections 1981, 1982. 1983, 1985, and 1986 of this title...
the court, in its discretion, may allow the prevailing party,
other than the United States, a reasonable attorneys’ fee as
part of the costs.”
STATEMENT OF THE CASE
On August 9, 1966, plaintiffs filed a complaint against the
Chicago Housing Authority on behalf of themselves and other
black tenants in, or applicants for, public housing in Chicago.
alleging that CHA had intentionally selected public housing
sites and adopted tenant assignment procedures designed to
maintain existing patterns of racial segregation in the city in
violation of the Fourteenth Amendment of the United States
Constitution and 42 U. S. C. § 1983. Plaintiffs prayed for an
order requiring CHA to submit and carry out site selection and
3
tenant assignment plans that would eliminate the past dis-
crimination. Plaintiffs did not ask for attorneys’ fees in their
complaint.
In February, 1969 the district court entered summary
judgment for plaintiffs on their § 1983 claim. Gautreaux v.
Chicago Housing Authority, 296 F. Supp. 907 (N. D. Ill. 1969).
On July 1, 1969 the district court entered a judgment order
setting forth the relief granted. Gautreaux v. Chicago Housing
Authority, 304 F. Supp. 736 (N. D. Ill. 1969). That order
provided a formula for CHA site selection decisions under
which 700 new public housing units were to be constructed in
predominantly white neighborhoods before any could be con-
structed in predominantly black neighborhoods: thereafter.
three new units were to be constructed in predominantly white
neighborhoods for every one constructed in a predominantly
black neighborhood. The order also required CHA to submit.
within 60 days, a non-discriminatory tenant assignment plan.
Finally, CHA was ordered to use its “best efforts” to increase
the supply of dwelling units as rapidly as possible in con-
formance with the judgment. The court retained jurisdiction
“... for all purposes, including enforcement and the
issuance, upon proper notice and motion. of orders
modifying or supplementing the terms of this order upon
the presentation of relevant information with respect to
proposed developments designed by CHA alone or in
combination with other private or public agencies to
achieve results consistent with this order. material changes
in conditions existing at the time of this order or any other
matter.”” 304 F. Supp. at 741.
No appeal was taken by CHA from this order, either on the
issue of liability or the issue of relief.
On October 31, 1969, CHA filed the new tenant assign-
ment plan called for in the July order. (R. 102.) That plan was
ultimately approved by the district court on November 24.
1969. (R. 107.)
4
From 1969 to 1979, when the basic guidelines set forth in
the judgment order were modified, there was a series of
proceedings concerning construction of the new public housing
contemplated by the 1969 decree. In 1970 plaintiffs obtained
an order from the district court compelling CHA to immediately
submit 263 new public housing sites which had been approved
by the United States Department of Housing and Urban
Development (“HUD”) to the Chicago City Council. which
was required by state law to approve the sites. Gautreaux v.
Chicago Housing Authority, 436 F. 2d 306 ( 7th Cir. 1970), cert.
denied, 402 U. S. 922 (1971). When CHA complied with this
order and the Council failed to hold hearings or otherwise act
on the site selection plan submitted to it, plaintiffs filed a
supplemental complaint in February, 1972 seeking to bypass
City Council approval. (R. 176.) Subsequently, CHA was
ordered to proceed with the housing plan despite the lack of
City Council approval. Gautreaux v. Chicago Housing Author-
itv, 342 F. Supp. 827 (N. D. Ill. 1972), aff'd, 480 F. 2d 210 ( 7th
Cir. 1973), cert. denied, 414 U. S. 1144 (1974).2
In September, 1974, plaintiffs filed yet another motion, this
time seeking the appointment of a commissioner to formulate
plans for the expeditious construction of new public housing,
which had been stalled as a result of a moratorium on the
construction of new federally financed public housing. The
motion was denied, but the case was referred to a master for a
2 During this period, there was also litigation in a companion
case plaintiffs had filed against HUD, alleging that it had participated
in the segregation of Chicago public housing. In 1971, summary
judgment with respect to liability was entered against HUD. Gau-
treaux v. Romney, 448 F. 2d 731 (7th Cir. 1971). The district court
then consolidated the cases against HUD and CHA and plaintiffs filed
a motion, which was granted, asking the court to consider metropoli-
tan area relief against HUD. Hills v. Gautreaux, 425 U. S. 284
(1976). In 1981, HUD and the plaintiffs entered into a consent
decree that finally settled the remedial issue; CHA was not a party to
and is not bound by that decree. See App. Ila. n. 17.
5
study of the causes of the delay and the formulation of a plan to
construct new public housing in conformance with the 1969
decree. Sixty-eight hearings were held before the Master from
1975 through 1979, at which CHA’s progress in complying with
the 1969 order was examined in detail.
In 1979, while the Master was preparing her final report to
the Court, plaintiffs, HUD, and CHA submitted a joint motion
to the court seeking the approval of a new housing plan
developed by CHA. The district court accepted the plan and on
May 18, 1979 modified the 1969 order in a number of respects.?
In December, 1979 plaintiffs filed a motion alleging that
CHA had failed to comply with the May, 1979 order and
seeking appointment of a receiver to administer the devel-
opment activities of CHA. After a hearing, the district court
denied the motion, without prejudice, and directed CHA to
“make an immediate and substantial start toward full com-
pliance with the May, 1979 order within six months.” Gau-
treaux v. Landrieu, 498 F. Supp. 1072, 1075 (N. D. Ill. 1980).
No other proceedings with respect to CHA were had in the
case until May, 1981, when plaintiffs filed a motion seeking
attorneys’ fees under § 1988. This was the first time the issue of
fees had ever been raised in the entire course of the litigation.
Plaintiffs’ motion sought compensation at the rate of $125 to
$175 per hour for the services of plaintiffs’ lead counsel,
3 The district judge later described the modification as follows:
“The order contained three significant provisions: |) it removed
CHA's obligation to put its first 700 units in white or general
public housing neighborhoods; 2) it changed the ratio of new
construction and rehabilitation with respect to white versus black
neighborhoods [from 3:1 to 1:1]; and 3) it explicitly included
elderly housing. Finally, the order required CHA to concentrate
on the rehabilitation method of developing public housing by
providing that 300 units be rehabilitated and 100 units be newly
constructed.” Gautreaux v. Landrieu, 498 F. Supp. 1072, 1073
(N. D. TI. 1980).
6
Alexander Polikoff. dating back to the inception of the litiga-
tion. A total of 3,003 hours were claimed, for which plaintiffs
sought a fee of from $375,375 to $575,575. In an affidavit
attached to their application, plaintiffs sought compensation for
1,607 hours spent from 1966 through January, 1970 obtaining
the ruling on summary judgment and the 1969 remedial decree.
They also sought compensation for 344 hours of work on
enforcement issues that had been completed by 1974.4
Over CHA’s objection, the district court granted the mo-
tion for fees, awarding plaintiffs the minimum amount they had
requested of $375,375. On appeal. the Seventh Circuit af-
firmed, with one judge dissenting, holding that fees had been
properly awarded in the case “pendente lite."’
REASONS FOR GRANTING THE WRIT
The Seventh Circuit's decision in this case was largely
predicated on the notion that a civil rights case remains
“pending” until the remedy has been fully implemented.
Because the new public housing contemplated by the 1969
judgment order in Gautreaux had not been built by 1976 or by
the date of the court’s decision on fees, the Seventh Circuit held
that the case was “pending” on October 19, 1976 when § 1988
became effective and remained pending when fees were
awarded. This determination had several consequences. First.
it meant that plaintiffs were eligible for fees under § 1988 for all
the work done in the case from its filing in 1966 through the
4In addition, plainuffs claimed compensation for 822 hours of
work done from January 1974 to August 1979 primarily with respect
to the appointment of a Master and hearings before the Master, for 30
hours of consultation concerning CHA’s housing plan, which was
approved in May, 1979, for 130 hours of work done from January
1980 to April 1981 primarily with respect to plaintiffs’ attempt to
obtain appointment of a receiver, for 20 hours spent reviewing
quarterly CHA reports from 6/30/71 to 4/4/81. and for 40 hours
spent in preparing the fee affidavit.
-
1980 hearings—even though final judgments had been entered
with respect to liability and remedy seven years before § 1988
went into effect. Second, because plaintiffs prevailed on the
pre-1976 proceedings, the court treated them as having pre-
vailed “on the whole” and thus awarded them fees even for
post-1976 enforcement efforts that were unsuccessful. Finally,
because the court viewed the award of fees as having been
made pendente lite, it was able to sidestep the issue of the
timeliness of the motion, which was filed almost a year after the
last substantive proceedings in the case had been concluded.
When Congress enacted § 1988, it intended it to apply only
to cases that were “pending” as of October 19, 1976. It is clear
that a case was “pending” as of that date if substantive claims
remained to be decided. However, in a series of decisions
beginning with Peacock v. Drew Municipal Separate School
Dist., 433 F. Supp. 1072 (D. Miss. 1977), aff'd, 611 F. 2d 1160
(5th Cir. 1980), the Fifth Circuit has held that where the only
live issue after October 19, 1976 was the enforcement of a
previously established liability, the case was not “pending”
within the meaning of the Act and fees may not be awarded for
work done on closed issues prior to its passage. The Seventh
Circuit's adoption of a test that focuses on full implementation
of the remedy directly conflicts with the Fifth Circuit approach
and runs contrary to the intent of Congress. Certiorari should
be granted to resolve the conflict.
The importance of this case is not, however. limited to
situations where litigation began prior to the enactment of
§ 1988. The court’s adoption of a test that focuses on full
implementation of the remedy also has serious implications for
other types of fee disputes. As applied in Gautreaux, the
Seventh Circuit's test allows plaintiffs to recover for any
enforcement proceedings—whether or not they prevailed in
those proceedings—if they succeeded in obtaining a remedy at
some time in the past. In Hensley v. Eckerhart, 664 F. 2d 294
(8th Cir. 1981), cert. granted, 455 U.S, 988 (1982), this Court
———E——EE
8
has already granted certiorari on this precise issue, namely,
whether an award of attorneys’ fees should be proportioned to
reflect the extent to which he plaintiff has prevailed.
Finally, the Seventh Circuit's approach would also signifi-
cantly alter the time limits applicable to petitions for fee
awards. If, as the court below held, a civil rights case is not
“over” for purposes of awarding fees until the remedy has been
fully implemented, then in many cases there will be no ume
limit at all in which a motion for fees must be filed. Such a
result is contrary to this Court’s decision in White v. New
Hampshire Dept. of Employment, 455 U.S. 445 (1982), Cer-
tiorari should also be granted on this issue.
I. The Court’s Decision That The Entire Gautreaux
Case Was Pending On October 19, 1976 Conflicts
With The Fifth Circuit Test and Runs Contrary To
The Congressional Intent In Enacting § 1988.
In 1976, Congress passed the Civil Rights Attorneys’ Fee
Award Act, 42 U.S. C. § 1988, which requires a court to award
fees to a prevailing civil rights plaintiff absent special circum-
stances. When Congress passed this legislation, it clearly
intended the new rule to apply only to cases that were “pend-
ing” as of the effective date of October 19, 1976. Thus, the
House Report stated that:
“In accordance with applicable decisions of the Supreme
Court, the bill is intended to apply to all cases pending on
the date of enactment as well as all future cases. Bradley v.
Richmond School Board, 416 U.S. 696 (1974).” H. Rep.
No. 94-1558, 94th Cong. 2d Sess., p. 4, 0.6, 1976 U. S.
Code Cong. & Adm. News at 5908.
Bradley was a school desegregation case that began in 1961
and concluded its first phase in 1966 when a school desegrega-
tion plan was put into effect. In 1970 the plaintiffs filed a
motion for further relief in light of various supervening Su-
preme Court decisions; in that motion plaintiffs also sought
9
attorneys’ fees. Thereafter. the district court decided that a new
remedial plan was required and awarded plaintiffs fees for
work done on the new proceedings held from 1970 through
1971. While the case was on appeal on the fee issue, Congress
enacted the Education Amendments of 1972. which specifically
permitted a court to award a reasonable fee where appropriate
in a school desegregation case. The Fifth Circuit refused to
apply the statute, holding that only legal services rendered after
the effective date of the Act were compensable under it. This
Court reversed. In his opinion for a unanimous Court, Justice
Blackmun held that the statute should be applied. based on the
ordinary principle that
“a court is to apply the law in effect at the time it renders
its decision. unless doing so would result in manifest
injustice or there is statutory direction or legislative history
to the contrary.” 416 U.S. at 711.
Thus, Bradley held that a plaintiff who was still ligating
his entitlement to attorneys’ fees when the Act was passed could
obtain the benefit of the new statute. It necessarily follows that
the statute would also be applied to cases where a plaintiff was
still litigating the substance of his claim on the date the statute
became effective and consequently had not yet had an opportu-
nity to file a motion for fees.
The Bradley rule was applied in the context of § 1988 in
Peacock v. Drew Municipal Separate School District. 433
F. Supp. 1072 (N. D. Miss. 1977), aff'd, 611 F. 2d 1160 ( Sth
Cir. 1980). In that case, a judgment disposing of all substantive
issues had become final in May, 1976, five months before the
passage of the Act. Plaintiffs nevertheless moved for an award
of fees under the Act, arguing that the case had still been
“pending” in October, 1976 because it remained on the court's
docket or because supplemental proceedings to effectuate the
judgment had been in progress at that time The district court
rejected both of these arguments, noting that plaintiffs position
would produce manifestly unjust results. especially in long.
10
drawn-out desegregation cases where a court had issued a final
judgment years before but had retained junsdiction to ensure
compliance.
The court then held that § 1988 should be applied only in
those cases in which some “active” issue was pending in
October, 1976. The court defined an “active” issue to mean:
“... a substantive claim upon which a district court has not
acted, either in the first instance or on remand. or a
substantive claim whose disposition by the district court, or
Court of Appeals. either is on appeal or is appealable. The
mere pendency on the date of enactment of an attorney
fees act of supplemental proceedings to effectuate a pnor
final judgment is not in our opinion, sufficient to convert an
action into such a ‘pending action’ as to warrant an award
of attorney fees under such act pursuant to Bradley-type
retroactive application of the act.” /d. at 1075.
Although it did not allow fees for the entire litigation, the court
did award fees under § 1988 for supplemental proceedings.
which had been pending on the effective date of the Act. and on
which plaintiffs had prevailed.
The Fifth Circuit followed the Peacock decision in Esca-
milla v. Santos, 591 F. 2d 1086, 1088 n.1 (Sth Cir. 1979).
holding that supplemental proceedings to effectuate a judgment
which had become final prior to October, 1976 were insufficient
to convert a closed case into an open one with pending, active
issues. Accord, Taylor v. Sterrett, 640 F. 2d 663, 668 ( Sth Cir.
1981).
Courts in other Circuits have also agreed with the basic
proposition that fees may not be awarded retroactively when all
substantive claims had been resolved in a judgment that had
become final prior to the passage of the Act. See e.g., Gonzales
v. Fairfax-Brewster School, Inc., 569 F. 2d 1294 (4th Cir.
1978). cert. denied, 439 U. S. 927 (1978); David v. Travisono,
621 F. 2d 464 ( Ist Cir. 1980) (holding that the Act applied
because a substantive issue as well as the issue of attorneys’ fees
had not yet been finally determined in October, 1976). In
Northcross v. Board of Education, 61\ F. 2d 624, 635 ( 6th Cir.
1979), cert. denied, 447 U. S. 911 (1980), the Sixth Circuit
noted that in an ongoing civil mghts case such as a school
desegregation case there may be a series of final orders that cut
off the possibility of obtaining fees for any prior work.
Thus, under the test generally adopted before the decision
in the case at bar, if liabil y had been established and the
contours of the remedy had been fixed before October 19, 1976,
the case was no longer “pending” for purposes of § 1988. This
is true even if as of that date the court was sull monitoring
compliance with its decrees or enforcement proceedings were in
progress. Although the plaintiff would be eligible for fees under
the Act for any successful enforcement proceedings. he could
not be awarded fees under § 1988 for legal work done prior to
October 19, 1976 in connection with closed issues such as
liability and the nature of the remedy.
In this case, the final order issued by the district court in
July, 1969 was a watershed event, which finally determined
CHA’s liability for racial discrimination in public housing in
Chicago and set forth a detailed plan to remedy that dis-
crimination. There is no question but that after 1969 there were
additional post-judgment proceedings. But those proceedings
did not concentrate on liability or the appropriate contours of
the remedy:$ rather, they dealt exclusively with the implemen-
Sin affirming the fee award, the Seventh Circuit majority also
suggested that the remedy against CHA had not been completely
fixed as of October 19, 1976 because after that date CHA had
participated in proceedings with respect to remedy in the consolidated
case against HUD. The majority suggested that it was possible that as
a result of the HUD litugation, CHA might be ordered to accomplish
its site selection and construction program on a metropolitan basis and
that therefore the scope of the remedy remained an open issue in
October, 1976.
Footnote continued on following page
12
tation of the provisions of the 1969 decree requiring the
construction of new public housing.
Thus, while proceedings, in the form of hearings before a
Master, were “pending” in this case in October, 1976, under the
Fifth Circuit test they would not serve to reopen the issue of
fees with respect to all of the pre-1976 proceedings. Indeed, the
hearings before the Master are a classic example of
“supplemental,” enforcement proceedings. the purpose of
which was not to establish liability or formulate a remedy, but
rather to explore alternatives for accomplishing the goals set
forth in the 1969 decree. As the district court instructed the
Master, her mandate was to
*.., study and review segregation in Chicago public hous-
ing, to determine and identify the precise causes of the
five-year delay in. implementing my judgment orders, and
to recommend a plan of action that will expedite the
realization of my various orders and judgments.” Quoted
in Chicago Housing Authority v. Austin, 511 F. 2d 82, 83
(7th Cir. 1975) (denying CHA’s petition for writ of
mandamus to reverse the order of reference ).®
Footnote continued from preceding page.
There are at least three problems with the majority's reasoning.
First, the argument was never raised in the district court and plaintiffs
explicitly excluded time spent in the HUD litigation from their fee
application. Thus. there are no findings that provide a factual basis
for the majority’s determination that the remedy against CHA was
subject to change as a result of the suit against HUD. Second. no
more comprehensive remedy was ever entered against CHA: when a
consent decree was finally approved in 1981. it bound only HUD.
(App. Ila, n.17.) Finally, even if there had been a possibility ( never
realized ) that the remedy might be altered by subsequent events, that
fact cannot make the 1969 order any less final or the retroactive
award of fees for work done in securing that order any more
appropnate.
6 Similarly, the expert hired to assist the Master was specifically
directed to state his conclusions with respect to such issues as whether
CHA had taken all practicable steps to identify and acquire land
suitable for new public housing in predominantly white areas. wheth-
Footnote continued on following page.
13
There was thus no “active controversy,” as that term has
been defined by the Fifth Circuit, pending in this case in
October, 1976. Nor had plaintiffs sought fees or attempted to
preserve the issue in any way during the long course of the
litigation.” Had plaintiffs sought fees after they were successful
in obtaining a remedy in 1969 and /osr on the issue. they would
certainly not have been able to relitigate the issue seven years
later because § 1988 was enacted. Plaintiffs should not be in a
better position now because they failed to raise the issue of fees
earlier.®
Thus, under the test adopted by the Fifth Circuit. plaintiffs
were not eligible for fees under § 1988 for work done prior to
1969 in securing the summary judgment and the remedy or for
work done in connection with a number of enforcement issues
that resulted in final judgments well before 1976—work that
constituted almost two-thirds of the time for which fees were
requested.
The contrary result in the Seventh Circuit stemmed from its
adoption of a test completely at odds with that adopted by the
Footnote continued from preceding page.
er CHA had taken all practicable steps to comply with HUD
construction cost limitations ( which had been a significant barner in
the past), whether CHA was taking all practicable steps to submit
proposals to alter the 1969 order if necessary to meet changed
conditions, and whether CHA was taking all practicable steps to
follow the Master’s direction to proceed with an acquisition program.
(R. 398.)
7 Compare this case to David v. Travisono, 621 F. 2d 464, 467.
n. 2 (Ist Cir. 1980), where, within ten days of an April, 1976
judgment in their favor, plaintiffs moved to defer consideration of the
fee issue until the end of the entire case, thus preserving it.
8 Such a motion would not necessarily have been futile. Prior to
1975, there was disagreement in the lower courts as to whether
attorneys’ fees could be awarded as a matter of course in civil nghts
cases. In Alyeska Pipeline Service Co. v. Wilderness Society, 42\ U.S.
240 (1975), this Court finally settled the issue, holding that, absent
statutory authority, a district court had the power to award fees only
on a finding of bad faith.
14
Fifth Circuit. Instead of asking whether the proceedings in
progress in October 1976 were in the nature of enforcement
proceedings, the Seventh Circuit concentrated on whether the
remedial order had been fully implemented by the effective date
of § 1988. Thus, the court answered CHA’s argument that
certain substantive issues were finally closed in 1969 by chasus-
ing CHA for “neglecting to mention that progress on the site
selection and construction aspect has been almost nonexistent.”
App. 6a. Elsewhere, the court emphasized the “dearth of
remedial action,” App. 10a, and the fact that as of October,
1976, CHA compliance with the court’s order to build new
public housing was “minimal,” App. |4a.
The Seventh Circuit’s position is wholly contrary to both
the Fifth Circuit test and the intent of Congress. Clearly, any
proceedings connected with the implementation of a remedy
must be considered supplemental enforcement proceedings as
that term has been used by the Fifth Circuit. Otherwise, it is
difficult to imagine what types of proceedings would fall into
that category. Furthermore, there is no reason to believe the
Congress intended § 1988 to be used as a vehicle for awarding
fees for work done on issues that had been finally decided years
before. As Judge Pell observed in his dissent,
“By October 1976, the remedy against CHA had been
fixed for more than six years. Although plaintiffs contin-
ued, of necessity, to be invoived in the litigation pertaining
to enforcement, it does not seem to me to be within the
Congressional intent that this activity should be used to
create retroactive liability for a long-past decade of legal
work.” App. 27a.
Il. This Case Also Raises The Issue Of Whether Fee
Awards Should Be Proportioned To Reflect The
Extent To Which A Plaintiff Has Prevailed.
This case also raises an issue on which this Court has
already granted certiorari in Hensley v. Eckerhart, 664 F. 2d
15
294 (8th Cir. 1981), cert. granted, 455 U. S. 988 (1982),
namely, whether an award of attorneys’ fees under § 1988
should be proportioned to reflect the extent to which a plainuff
has prevailed on the issues raised in the case.
Here, it was clear that plaintiffs had prevailed on the pre-
1976 proceedings. The post-1976 proceedings, however. were a
different matter. In the district court. CHA argued that
plaintiffs had not prevailed in any of those enforcement pro-
ceedings. Thus, plaintiffs’ two attempts to obtain the appoint-
ment of a receiver both failed. And, although plainuffs
succeeded in defending the reference to a Master and thus
forced CHA into a four-year round of hearings. CHA argued
that those hearings were ultimately fruitless, resulting in no
order of any kind from the district court.
The district judge rejected these arguments. Viewing the
litigation as One continuous proceeding, he took the position
that plaintiffs had prevailed on the whole and thus were
automatically entitled to fees for all the work they did on all
issues:
“Viewed as a whole, there is no question that plaintiffs
have prevailed in this case. When that is the situation, a
court’s discretion is very narrow, because fees are to be
awarded ‘almost as a matter of course.’ App. 40a.
The district court then went on to state that “plaintiffs’
pursuit of the proceedings before the Master. the 1979 order
and the motion to appoint a receiver undoubtedly contributed
in a substantial way to CHA starting to provide housing in
compliance with the court’s orders.” App. 41a. Although it is
not entirely clear, the court apparently intended this as a ruling
that plaintiffs had prevailed even in the supplemental proceed-
ings because their actions were a “material factor” in obtaining
CHA’s “compliance.” Morrison v. Ayoob, 627 F. 2d 669 (3d
Cir. 1980), cert. denied, 449 U.S. 1102 (1981).
On appeal, the Seventh Circuit did not deal with CHA’s
argument that this alternative ruling was clearly erroneous:
16
rather, it relied wholly on the notion that. once the liugation
was viewed as a single proceeding, fees would automatically be
awarded for ail of plaintiff's work because they had prevailed in
the liability and remedial stages. App. 2a. 3a n.4.
We submit that in so holding the Seventh Circuit erred. A
plaintiff who has prevailed on the merits of the litigation should
not be automatically compensated for any enforcement pro-
ceedings he may ultimately bring, without regard to whether
those proceedings resulted in any real benefit. Nor should
plaintiffs’ attorneys receive compensation indefinitely for their
work in monitoring compliance with the court's decrees. In this
case, plaintiffs sought and received fees for 20 hours of
“reviewing” CHA compliance reports for ten years between
1971 and 1981. Since the case is still deemed to be “pending,”
plaintiffs’ lead counsel can apparently continue billing CHA on
an indefinite basis at the rate of $62.50 for each half hour he
spends reading the quarterly compliance reports. Such a result
does not comport with the congressional intent in enacting
§ 1988.
Ill. The Seventh Circuit’s Focus On Full Implementation
Of The Decree Effectively Eliminates Any Time
Limit On Motions For Fees.
This Court should also grant certiorari to review the
Seventh Circuit's treatment of the issue of the tmeliness of the
motion for fees. As noted above, plaintiffs did not ask for fees
in their complaint, nor did they attempt to preserve the issue of
fees in any way during the long course of this litigation.
Indeed, it was not until May, 1981, almost one year after the
last unsuccessful enforcement proceeding launched by plaintiffs
had been concluded, that plaintiffs’ counsel made their first
motion for fees. Nevertheless, because the remedy had not yet
been fully implemented, the Seventh Circuit held that fees had
been appropriately awarded “pendente lite.”
17
If the Seventh Circuit’s rule is applied to other cases, it will
enable plaintiffs’ attorneys to file for fees at any time, no matter
how long ago there were any proceedings, so long as some
element of the remedy has not yet been implemented. Such a
position is squarely opposed to this Court’s recent holding that
“unreasonable tardiness” j.: filing a motion for attorneys’ fees
may provide a basis for denying the motion. See White v. New
Hampshire Dept. of Employment Security, 455 U. S. 445, 454
n. 17 (1982). In his concurring opinion in White, Justice
Blackmun noted that the Court had come “close to approving”
the position of the Eighth Circuit that a motion for assessment
of attorneys’ fees raises a “collateral and independent claim”
which ought to be filed within a short time fixed by local rule.
102 S. Ct. at 1168. Obin v. Internat'l Ass'n of Machinists &
Aerospace Workers, 65\ F. 2d 574, 584 (8th Cir. 1981). If such
a time limit is to have any meaning at all. a reasonable rule
must be adopted to fix the point at which the time limit begins
to run. This case presents an appropriate vehicle for estab-
lishing such a rule.
18
CONCLUSION
For the foregoing reasons, this Court should grant the
petition for certiorari, and reverse the judgment of the Court of
Appeals for the Seventh Circuit.
Respectfully submitted,
Patrick W. O'BRIEN
(Counsel of Record )
BEVERLEY J. KLEIN
MICHELE OpDorRIZzZ1
231 South LaSalle Street
Chicago, Illinois 60604
(312) 782-0600
Attorneys for Petitioner
Of Counsel:
MAYER, BROWN & PLATT
231 South LaSalle Street
Chicago, Illinois 60604
CaLVIN H. HALL
General Counsel
The Chicago Housing Authority
22 West Madison Street
Chicago, Illinois 60601
Dated: January 31, 1983.
la
an the
United States Court of Appeals
For the Seventh Circntt
No. 81-2223
DOROTHY GAUTREAUX, et al.,
Plaintiffs-A ppellees,
Vv.
THE CHICAGO HOUSING AUTHORITY,
Defendant-Appellant.
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
Nos. 66-C-1459 and 66-C-1460 (consolidated)—
Marvin E. Aspen, Judge Presiding.
ARGUED May 10, 1982—DeEcIDED Auwust 30, 1982
Before CUMMINGS, Chief Judge, Davis, Associate Judge,"
and PELL, Circuit Judge.
CuMMINGS, Chief Judge. This appeal is a byproduct of
the celebrated Gautreaux case, whose complexities and
history are summarized in Gautreaux v. Landrieu, 523
F. Supp. 665, 667-669 (N.D. Ill. 1981). The issue here is
relatively narrow: the propriety of an jnterim award of
attorney's fees under 42 U.S.C. § 1988 to Alexander
Polikoff as the representative of counsel for the plaintiff
* The Honorable Oscar H. Davis, Associate Judge of the
United States Court of Claims, is sitting by designation.
2a
2 No. 81-2223
class.' District Judge Crowley ordered the Chicago Hous-
ing Authority (CHA) to pay $375,375 for more than
3,000 hours of work between 1965 and 1980.2 Gautreaur
v. Landrieu, 523 F. Supp. 684 (N.D. Ill. 1981). On
appeal CHA argues that udge Crowley erred because
(1) the suit against CHA (i.e, 66-C-1459) was not
nding” on October 19, 1976, when the Civil
Rens ttorney’s Fees Awards Act of 1976 (codi-
fi ~y et 42 U.S.C. § 1988) became effective, and
therefore no fees are awardable under the statute
although plaintiffs have prevailed in the litiga-
tion as a whole;
' The fees are to be paid directly to the Illinois Division of
the American Civil Liberties Union (ACLU, for whom Mr.
Polikoff acted as volunteer lead counsel in Gautreauz until
1970) and to Business and Professional People for the Public
Interest (BPI, which Mr. Polikoff has headed since 1970 and
which has staffed the Gautreauzr case with volunteer lawyers
from 1970 to the present). 523 F. Supp. at 691; Polikoff af-
fidavit, CHA App. 2. None of the other attorneys who have
worked on the case, either for the ACLU or for BPI, makes
oy claim to fees for services rendered. 523 F. Supp. at 685;
ikoff affidavit, CHA App 7.
? Although the Department of Housing and Urban Develop-
ment (HUD) joined the CHA in opposing some aspects of the
fee award in the district court, it is not a party to this appeal.
Fees under Section 1988 are not available inst HUD,
Shannon v. Dept. of Housing and Urban Dev., 577 F.2d 854,
856 (3d Cir. 1978), certiorari denied, 439 U. S. 1002; but the
fees awarded by Judge Crowley do not require CHA to pay
more than its share. The Polikoff affidavit (CHA App. 5-6) ex-
cludes time that would be allocable to HUD, as well as time
spent on litigation with other parties and on unsuccessful
aspects of plaintiffs’ case.
3 66-C-1459 and 66-C-1460 (the case against HUD) were con-
solidated in 1971 (R. 100 of docket sheets for 66-C-1460). The
| serena was in response to our decision in Gautreauz v.
a ae 448 F.2d 731 rath Cir. 1971), that HUD was as
—— e as CHA in Bf ghee segregated low-income hous-
in Chicago. C at the consolidation has con-
tri uted to an erroneous > fading that fees were awardable
here Merge! Br. 7); our discussion of that argument is found at
pp. 7-10, infra.
3a
No. 81-2223 3
(2) if any aspects of the suit could be considered
pending on October 19, 1976, they were only sup-
plemental enforcement proceedings in which the
plaintiffs did not prevail as Section 1988 requires:
(3) the petition for fees was not timely filed: and
(4) the award of fees at a rate of $125 per hour for
3.003 hours was an abuse of discretion.
Finding all these arguments unpersuasive, we affirm
the district court’s fee award.
I
The most substantial issue CHA presents is whether
the Gautreaux litigation was pending on October 19.
1976.4 Congress enacted the Fees Awards Act in 1976 in
response to the Supreme Court's decision in Aljeska
Pipeline Co. v. Wilderness Society, 421 U.S. 240 (courts
are not free to award attorney's fees to parties serving
as “private attorneys general” absent specific legislative
authorization). The Act provides that “[i]n any action or
proceeding to enforce a provision of sections 1981. 1982,
1983, 1985, and 1986 of this title, title IX of Public Law
92-318, or title VI of the Civil Rights Act of 1964, the
court, in its discretion, may allow the prevailing party,
other than the United States, a reasonable attorney's fee
as part of the costs.” Although the statute is silent on
the point, the legislative history makes clear that Con-
gress intended Section 1988 as amended to “apply to all
cases pending on the date of enactment [October 19,
1976] as well as all future cases, Bradley ». Richmond
School Board, 416 U.S. 696 (1974).” H. R. Rep. No.
94-1558, 94th Cong., 2d Sess. 4, n. 6.5
‘ In view of our resolution of this question (argument (1)
supra), we need not address argument (2) above, that only
supplemental proceedings took place after 1976 and that
plaintiffs did not prevail in them.
‘In incorporating Bradley, Congress must be deemed to adopt
its analysis. The salient features of Bradley are that a court is
to apply the law in effect at the time of its decision, unless it
(Footnote continued on following page)
4a
4 No. 81-2223
The issue posed in this appeal is how that legislative
direction is to be applied to equitable proceedings that
have lasted sixteen years and are not yet concluded. Put
differently, the question is whether the test that has
developed for determining pendency is to be applied in
a technical or a common-sense fashion.
In the formulation of the test on which the parties and
the district judge focused, a case is pending if there is
an “active” issue that has not been finally resolved at
the critical time. An “active” issue is defined—by a proc-
ess of inclusion and exclusion—as
a cubstantive claim upon which a district court has
not acted, either in the first instance or on remand,
or a substantive claim whose disposition by the dis-
trict court, or the Court of Appeals, either is on
appeal or is appealable. The mere pendency on the
date of enactment of an attorney fees act of supp/e-
mental proceedings to effectuate a prior final judg-
ment is not, in our opinion, sufficient to convert an
action into such a “pending action” as to warrant an
award of attorney's fees under such an act pursuant
to the Bradley-type retroactive application of the
act.
Peacock v. Drew Municipal Separate School Dist., 433 F.
~ape. 1072, 1075 (N.D. Miss. 1977) (emphasis added),
affirmed on basis of district court opinion, 611 F.2d
1160 (5th Cir. 1980) (per curiam).
CHA takes a literal view of the test. The district court
had found in 1969 that CHA engaged in intentional
racial discrimination in its low-income housing pro-
gram, 296 F. Supp. 907 (N.D. Ill. 1969). The court had
entered a remedial order shortly thereafter, 304 F.
5 continued
would be clearly unjust to do so or there is legislative direc-
tion to the contrary; and that it is not clearly unjust to give a
fee statute retrospective effect where the parties have dis-
parate abilities to protect themselves, where a _— right is
vindicated, and where the law does not change the substantive
obligations of the parties.
Sa
No. 81-2223 5
Supp. 736 (N.D. Ill. 1969). CHA had taken no appeal
from either decision. Therefore, it argues, all subse-
quent proceedings (whether they generated appeals or
not) were efforts to effectuate the 1969 judgment and
hence “supplemental.” (Br. 17-29.) The district judge.
by contrast, took a common-sense approach. He viewed
the district court's broad retention of jurisdiction’ and
its frequent modifications of the 1969 injunction‘ as evi-
dence that “continuing judicial proceedings that would
involve active controversy were expressly contemplated.”
523 F. Supp. at 689. Looking at the entire course of the
litigation, he found no justification for treating the 1969
order, though it was admittedly final in the sense of
“non-appealable,” as so conclusive of the parties’ dispute
that the next twelve years of litigation could be called
“supplemental proceedings to effectuate a prior final
judgment.” Jd. at 688-689.
* The summary of the consolidated litigation at 523 F. Supp.
665, 666-668, lists eight published district court decisions, six
Court of Ap opinions, and one Supreme Court case. Four
additional district court decisions and two further appeals
tdate the summary. CHA would treat all but two of these
as either supplemental or related solely to the HUD case.
’ Paragraph X of the order, 304 F. Supp. 736, 741, provides:
This Court retains jurisdiction of this matter for all pur-
poses, including enforcement and the issuance, upon
proper notice and motion, of orders modifying or
supplementing the terms of this order upon the presenta-
tion of relevant information with respect to proposed
developments designed by CHA alone or in combination
with other private or public agencies to achieve results
consistent with this order, material change in conditions
existing at the time of this order, or any other matter.
The retained jurisdiction was promptly exercised as well. The
initial order was supplemented on September 12, 1969;
September 15, 1969: October 20, 1969; October 23, 1969; and
November 24, 1969. See 436 F.2d 306, 308 (7th Cir. 1970).
* We were informed at oral argument that the July 1969 in-
junction has been modified seventeen times to date—eight
times before October of 1976 and nine times thereafter.
6a
6 No. 81-2223
Like the district judge, we favor a common-sense
approach. It is more consistent with the history of this
particular lawsuit, with other cases in which the appli-
cability of the Fees Awards Act has been an issue, and
with the nature of equitable proceedings in general not
to divide a continuously active equitable case into a host
of separate smaller matters.
Gautreaur Revisited
We begin with a summary of how this litigation has
gone, what CHA has been ordered to do, and what its
track record for compliance is. The purpose of this sum-
mary is to demonstrate the artificiality of CHA’s conceit
that the case ended, for Section 1988 purposes, in 1969
and to refute an alternative CHA argument, namely.
that only the companion case against the Department of
Housing and Urban Development (HUD) was pending
in 1976 and that “CHA's marginal participation in the
case against HUD should [not] affect its liability for fees
in the other case.” Reply Br. 7.°
Judge Austin’s original remedial order, 304 F. Supp.
at 737-743, had two focuses: CHA was to modify its
tenant assignment system, which had previously re-
sulted in a high degree of racial segregation in existin
housing. CHA was also to adopt new site selection an
construction procedures to ensure that new housing was
not concentrated in segregative patterns or built on a
huge and dehumanizing scale. CHA points out that “the
tenant assignment = was never an issue after [1969]”
(Br. 26), but it neglects to mention that progress on the
site selection and construction aspect has been almost
nonexistent. '°
* See note 3 supra.
© “(Despite continuous litigation, numerous hearings and
remedial court orders and referral to a Special Master * * *,
during the past twelve years, plaintiffs have yet to realize
more than token relief.” 523 F. Supp. at 667 (referring to the
consolidated litigation).
7a
No. 81-2223 7
Histurically, CHA's procedure fur selecting housing
sites was to submit proposals to the Chicago City Coun-
cil. After the July 1969 order, it submitted no proposals,
arguing that matters were best postponed until after
the April 1971 mayoral elections. This Court affirmed
Judge Austin’s order directing CHA to submit proposes
to the City Council by September 20, 1970. 436 F.2d 306
(7th Cir. 1970), certiorari denied, 402 U.S. 922. There-
after it was the City Council's turn to be recaicitrant. It
conducted no hearings on te CHA submissions. Accord-
ingly Judge Austin ordered CHA to bypass the City
Council, even eg Council approval was a procedural
step required by Illinois statute. A divided panel of this
Court affirmed, 480 F.2d 210 (7th Cir. 1973), certiorari
denied, 414 U.S. 1144. In both of these appeals CHA
conduct was directly in issue and CHA was an appellant
in this Court.
After the consolidation of the CHA and HUD cases in
1971, CHA also found itself involved in the consolidated
HUD case. It is disingenuous, however, to call CHA's
participation “marginal” (CHA Reply Br. 7). For exam-
ple, CHA intervened on sppes to challenge Judge Aus-
tin’s decision to enjoin H from disbursing $26 million
in Model Cities funding to Chicago. We reversed, 457
F.2d 124 (7th Cir. 1972), on the ground that there was
an insufficient connection between the Model Cities Pro-
grem and CHA's segregation of low-income housing.
HA was also a party to the appen! of Judge Austin’s
decision restricting the scope of HUD and CHA reme-
dial activities to the city limits of Chicago—a decision
we also reversed, 503 F.2d 930 (7th Cir. 1974), affirmed
sub nom. Hills v. Gautreaux, 425 U.S. 284. CHA's inter-
est in both appeals is not hard to discern. It would be
under increased pressure to comply with Judge Austin's
orders if its failure to do so could jeopardize the City's
receipt of other federal funds; and it wanted to be sure
that if its site selection and construction program had
to be metropolitan in scope, HUD’s resources would be
committed on the same scale. CHA did not attempt to
secure Supreme Court review of our decision about a
metropolitan remedy. og! HUD was a petitioner in
Hills v. Gautreaux, 425 U.S. 284. But the Supreme
8a
8 No. 81-2223
Court's decision made clear that on remand CHA would
be equally implicated in the metropolitan relief that the
district judge could properly order:'!
Both CHA and HUD have the authority to operate
outside the Chicago city limits. * * * J is entirely
appropriate and consistent with Milliken to order
CHA and HUD to attempt to create housing alter-
natives for the respondents in the Chicago suburbs.
426 U.S. at 298-299 (footnote omitted).'*
In short. after the Supreme Court's decision in April of
1976, the entire suit came back to the district court in a
new posture: both HUD and CHA could be ordered to
remedy the effects of their past discriminatory practices
by siting. building, and financing low-income housing
throughout the Chicago metropolitan area. In the pro-
ceedings before a magistrate, which began before the
Supreme Court decision and went on for five years,'* the
1) CHA takes an unjustifiably narrow view of the Supreme
Court's language. “The fact that the court later ordered HUD
to engage in metropolitan area relief does not detract from
the completeness of the [1969] remedy against CHA.” Reply
Br. 8 (emphasis in original).
12 The Court noted, 425 U.S. at 298, n. 14:
Illinois permits a city housing authority to exercise its
powers within an “area of operation” defined to include
the territorial boundary of the city and all of the area
within three miles beyond the city boundary that is not
located within the boundaries of another city, village, or
incorporated town. In addition, the housing authority may
act outside its area of operation by contract with another
housing authority or with a state public body not within
the area of operation of another housing authority. III.
Rev. Stat. c. 67%, §§ 17(b), 27¢ (1973).
‘3 CHA’s penultimate gry to this Court involved the dis-
trict judges reference of the case to ——— Olga Jurco.
The reference antedated the Supreme Court’s decision and
directed the magistrate to determine if CHA was using its
best efforts to comply with the 1969 order as modified and, if
not, whether contempt proceedings would be appropriate.
CHA asked this Court to issue a writ of mandamus, directin
the district judge to retain the case himself. A divided pane
declined to do so, 511 F.2d 82 (7th Cir. 1975).
9a
No. 81-2223 9
additional relief was discussed and attempts were made
to have CHA cooperate in implementing it.'
Throughout these twelve years of proceedings (1969-
1981), CHA’s response to orders by the court and the
magistrate ranged from lethargic to obdurate. The rec-
ord simply does not support CHA’s version—that it was
docile, even zealous, unless forces outside its control
made obedience a complete impossibility (Reply Br. 9-
11). Asked to evaluate CHA’s compliance efforts, the
magistrate recommended against finding CHA in con-
tempt (Second Report, App. 49).'° But she also found
that “CHA site search and acquisition have neither been
efficient nor vigorous and therefore not numerically
productive” (Draft Final Report, App. 96); that, al-
though some delay was “attributable to factors not
within the complete control of CHA and HUD, [these
factors] should have been anticipated by them and must
be prepared for in the future because they continue”
(id.. App. 98); and that “(t]he prevalent deterrent to
CHA performance has been a reluctance to relinquish
application of self-imposed criteria in the exercise of its
judgment of what it concludes to be suitable remedial
housing for plaintiff class as well as inefficient bureau-
4 It is evident from the magistrate’s second, third, and
(draft) final reports that the Supreme Court’s decision did
have an impact on the proceedings and that means of achiev-
ing metropolitan relief were considered and adopted
thereafter. App. 53 (joint voluntary efforts by CHA and
HUD warrant postponing judicial action); App. 69 (CHA to
request cooperation with suburban housing authorities, with
CHA channeling federal subsidies to those authorities in ex-
change for commitment to reserve 50% of resulting units for
Gautreauz plaintiffs); App. 72-76 (HUD and local authorities,
including CHA, enter into Gautreaux Demonstration Program
in Chicago and suburbs); App. 93 (of local authorities invited
to cooperate with CHA, only Elgin responds positively, but
later rescinds agreement).
‘ CHA asserts that “{a]t no time in the history of this
protracted litigation has CHA ever been charged with failing
to compy with any order of the district court” (Br. 35). That
is literally true but misleading.
10a
10 No. 81-2223
cratic operation” (id.. App. 102). The most scathing
indictment of CHA’s compliance can be found in Judge
Crowley’s reluctant decision not to put CHA into re-
ceivership, 498 F. Supp. 1072, 1075 (N.D. Ill. 1980):
With great reservation, the motion to appoint a
receiver is denied without prejudice. * * * Best
efforts will no longer suffice; ——— [with the
May 1979 modified order] will measured by
results, not intentions. Bureaucratic inefficiency will
no longer be tolerated by the Court. The inaction of
the CHA to date is a clear indication of indifference
to the orders of this Court and to the rights of the
citizens of Chicago.
Based on the foregoing, it is difficult to argue that
this litigation ended in any practical sense with the
1969 orders, or that the succeeding stages were “supple-
mental.” It is also hard to believe that no substantive
issues remained open and unresolved in the fall of 1976.
Quite apart from the dearth of remedial action, the
scope of possible remedy had changed. Finally, it is
impossible to treat the CHA’s involvement in any of
these issues as “marginal.”
Other Precedents
A comparison of the Gautreaur litigation with the
cases on which CHA relies is also instructive. With one
exception, they all involve much more discrete and
conclusive lawsuits than we have found. Thus Peacock,
supra, 443 F. Supp. 1072, dealt with a challenge by two
plaintiffs to a school district policy of refusing to employ
unwed mothers. Before the enactment of »mended Sec-
tion 1988, definite backpay and reinstatement relief had
been ordered and the fee issue finally resolved. Only an
effort to recover supplemental backpay was pending on
October 19, 1976. The district judge found this too thin
a wedge to open the entire litigation for the award of
some $122,000 in fees, especially where “plaintiffs were
free to effectuate their judgment for over one and one-
half years prior to enactment of the 1976 Act.” 433 F.
Supp. at 1075.
lla
No. 81-2223 ll
In Escamilla v. Santos, 591 F.2d 1086 (5th Cir. 1979),
a prisoners’ Section 1983 suit had ended with a consent
decree in July of 1976 and a memorandum order deny-
ing attorneys’ fees in August of 1976. The district judge
had amended his decision and granted fees after Octo-
ber 19, 1976, solely because the August memorandum
order did not satisfy the technical requirements of a
final judgment under Rule 58 of the Federal Rules of
Civil Procedure.'* The Fifth Circuit reversed, holding
that a technical defect did not undermine finality where
the judge and both parties clearly treated the order as
final at the time it was entered.'’
Finally, Gonzales v. Fairfar-Brewster School, Inc., 569
F.2d 1294 (4th Cir. 1978), certiorari denied, 439 U.S.
927, involved plaintiffs’ attempts to obtain fees, al-
though the Court of Appeals had denied them, the
Supreme Court had affirmed, and the Supreme Court’s
mandate had been returned to the district court—all
before the Fees Awards Act’s effective date. Plaintiffs’
theory, rejected by the Fourth Circuit, was that a pend-
ing motion for costs under 28 U.S.C. § 1920 preserved
the attorneys’ fee issue under the statute.
6 Fed. R. Civ. Proc. 58 provides that “{elvery judgment shall
be set forth on a separate document. A judgment is effective
Ah so set forth and when entered as provided in Rule
a).
‘7 In a footnote, 591 F.2d at 1088, n. 1, the Court added: “The
laintiffs’ October 1, 1976, motion concerning the appellants’
ailure to comply with the consent decree is in the nature of a
supplemental proceeding to effectuate the prior consent judg-
ment and is insufficient to make a pending active issue. See
Peacock v. Drew Municipal Separate School District, supra.”
This note is not authority for CHA’s contention that all
proceedings after the 1969 order in Gautreaux were
supplemental. First, no consent decree has been entered
against CHA. The consent décree that has been formulated,
3 F. Supp. 665, i patios Nos. 81-2308, 81-2311, 81-
2361 (argued May 10, 1982), binds only HUD. Second, the
Fifth Circuit does not describe the nature of any noncom-
pliance or the relief sought, factors that would be relevant
to an assessment of whether litigation has been concluded.
l2a
12 No. 81-2223
A fair comparison of these cases and the Gautreaur
litigation readily suggests important differences. First,
none appears to involve ongoing disputes about the
ropriety and efficacy of the relief initially granted."
ndeed only one could conceivably have involved relief
that was long term or complicated, such that a court’s
retained jurisdiction would not only be provided for, but
invoked.'® Second, all three cases involve thinly-dis-
guised attempts to generate an issue solely in order to
come within the pendency rule. In Gautreaur the plain-
tiffs’ unremitting pressure on CHA over twelve years—
and their decision to ask for attorneys’ fees only as the
litigation draws to a close—bespeak no such opportu-
nism. The Sixth Circuit’s remark in Northcross 1. Board
of Education of Memphis City Schools, 611 F.2d 624, 635
(1979), certiorari denied, 447 U.S. 911, could equally
apply here: “[P]laintiffs’ delay in applying for fees * * *
was largely due to the fact that there was no earlier
time to pause for litigation of the fee issue * * *.”
CHA instances one case that is factually more similar
to Gautreaur in which fees were nonetheless denied.
There is however an important distinction, and it under-
cuts CHA’s position. In Henry v. Clarksdale Munici-
pal Separate School District, 579 F.2d 916 (5th Cir.
1978) (per curiam) (Clarksdale V), the Fifth Circuit
construed Section: 718 of the Emergency School Aid
Act, 20 U.S.C. § 1617, a fee provision applicable to
school desegregation cases pending on July 1, 1972.°° A
‘8 Peacock involved supplemental back pay; Gonzales involved
only attorneys’ fees. Escamilla apparently involved fees as
well, but see note 17 supra.
19 In Escamilla, the lawsuit challenged living conditions in
the Webb County, Texas, Jail. The conditions, and what cor-
rective measures were ordered, are not specified in the opin-
ion. In contrast, Peacock involved two named plaintiffs’ suit
for reinstatement to employment; and Gonzales was the
epilogue to Run v. McCrary, 427 U.S. 160, a suit by two
black children denied admission to private Virginia s \ools
because of race.
* This provision and its retrospective effect are the subject
- Supreme Court's opinion in Bradley, supra, 416 U.S.
l3a
No. 81-2223 13
majority of the panel held that plaintiffs’ motion to
require bus transportation by the School District, made
after July 1, 1972, was not sufficient to render the lit-
igation pending after that date. Apart from the motion,
no active issues remained: “all definitive or substantive
orders of the district court for desegregating the Clarks-
dale public schools as to students, faculty, staff, and ser-
vices had been entered and were being complied with.”
579 F.2d at 918 (emphasis added). The majority there-
fore affirmed the district judge’s decision to award no
fees for work done between 1964, when the suit was
first filed, and 1972.*!
Judge Tjoflat in dissent in Clarksdale V disagreed
with the majority’s treatment of the busing motion,
finding it an integral step in the achievement of a uni-
tary school system, rather than a supplemental enforce-
ment effort. /d. at 921. He also thought the majority's
characterization of the school district's compliance was
naive:
[A] school system is not automatically desegregated
when a constitutionally acceptable plan is adopted
and implemented. “If the journey from Brown to
Swann has taught us anything, it is that integration
coos net occur merely when and because we say it
should.
Id., quoting Thompson v. Madison County Board of
Education, 496 F.2d 682, 686 (5th Cir. 1974). Finally
Judge Tjoflat believed that the majority was avoiding
= plain import of the Bradley decision.~ 579 F.2d at
21 The Court had affirmed the award of fees for work done
after July 1, 1972, 480 F.2d 583, 585-586 (5th Cir. 1973)
(Clarksdale IV). It apparently assumed before the decision in
Bradley that the fee statute could not provide compensation
for work done before its effective date. See 579 F.2d at 920
(Tjoflat, J., dissenting).
2 J.e., he disapproved of the Court’s adhering to the result it
had reached earlier (note 21 supra), when the rationale for
that result had been undercut completely by Bradley.
l4a
14 No. 81-2223
While we find ourselves in sympathy with Judge Tjo-
flat’s position, we need not adopt it to determine that
CHA's arguments are not advanced by Clarksdale V.
CHA would have to show, as the School District did in
the Clarksdale V majority's opinion, that “all definitive
and substantive orders * * * had been entered and were
being complied with” before October 19, 1976. As our
summary of the Gautreaur litigation amply indicates,
relief was still being formulated in 1976 and CHA com-
pliance was minimal.
Finding CHA’s precedents readily distinguishable,
the district judge placed reliance instead on Bolden ».
Pennsylvania State Police, 491 F. Supp. 958 (E.D. Pa.
1980). There a lawsuit challenging the defendants’ ra-
cially discriminatory hiring and promotion practices
had been filed in 1973 and a consent decree entered in
1974. Nonetheless, the court treated the suit as still
pending in 1976, for purposes of Section 1988, because
“the consent decree expressly contemplated a continuing
judicial proceeding.” 491 F. Supp. at 961. The defend-
ants were under court order to develop job-related hir-
ing and promotion criteria, demonstrate the criteria’s
validity to the district judge, and then use them to
remedy past discrimination. But
{nearly six years after the entry of the 1974 con-
sent judgment and four years after passage of the
1976 Fees Awards Act, implementation of the class
relief remains in the initial mo Nor have plain-
tiffs been responsible for the delay in any way. De-
fendants have simply not fulfilled their obligation
to develop and present to the Court evidence of
valid, nondiscriminatory employment standards. /d.
In the absence of controlling precedent in this Cir-
cuit,3 Judge Crowley was correct to recognize the dis-
% The chief basis for decision in Bond v. Stanton, 555 F.2d
172 (7th Cir. 1977), certiorari denied, 438 U.S. 916, was that
the —_ history of the Fees Awards Act referred to the
specific suit as an example of one in which awards for earlier
work would be appropriate. /d. at 174. Fees had earlier been
(Footnote continued on following page)
EEE
No. 81-2223 15
tinguishability of the Fourth and Fifth Circuit cases
and to rely instead on Bolden.*
The Nature of Equitable Proceedings
The district judge’s decision is also consistent (and
CHA’s arguments are not) with the nature of modern
suits in equity. When broad equitable relief is sought to
remedy a constitutional violation, the remedy must be
tailored to the scope of the violation. Hills v. Gautreau.r,
supra, 425 U.S. at 293-294; cf. Milliken v. Bradley (Mil-
liken I), 418 U.S. 717, 744; Swann v. Charlotte-Mecklen-
burg Board of Education, 402 U.S. 1, 16. With that
caveat, however, the federal district judge acting as
chancellor “has broad and flexible powers to mold each
decree to the necessities of the particular case and to
remedy the consequences of past constitutional viola-
tions.” Gautreaux ». Romney, supra, 457 F.2d at 133
(Sprecher, J., dissenting). The reality in such cases, as we
have learned primarily in the school desegregation con-
text, is that the finding of a constitutional violation is in
a practical sense only the preliminary hurdle. The heart
of the lawsuit is the remedial stage, where the parties
struggle, often for years, over the scope and details of
injunctive relief. Under such circumstances it is not un-
common for the parties to take no appeal from the
initial liability determination—as the parties in Gau-
3 continued
awarded because of the defendants’ bad faith, 528 F.2d 688
(7th Cir. 1976), vacated and remanded in light of the Fees
Awards Act, 429 U.S. 973—a poe that was unaffected
by the Alyeska decision, 421 U.S. 240, 258-259.
In Dawson v. Pastrick, 600 F.2d 70 (7th Cir. 1979), there
was no dispute about the pendency of the case on October 19,
1976, because it was not resolved until 1977. We did, however,
reject the defendants’ argument that it would be inequitable
. yt fees for work going back to 1971, when the case was
irst filed.
* David rv, Travisono, 621 F.2d 464 (1st Cir. 1980) (per
curiam), and Northcross, supra, 611 F.2d 624, are also consis-
tent with the result reached by Judge Crowley. See 523 F.
Supp. at 687, n. 2.
loa
16 No. 81-2223
treaus did not—because they recognize the wisdom of
husbanding their energy and resources for the true bat-
tleground. Cf., e.g.. Pasadena City Board of Education
v. Spangler, 427 U.S. 424, 428 (Board voted to take no
appeal from district court’s finding of liability and
entry of initial injunction); Bradley v. Milliken, 468 F.2d
902 (6th Cir. 1972), certiorari denied, 409 U.S. 844
(after trial on the merits, 338 F. Supp. 582 (E.D. Mich.
1971), initial appeal involved unsuccessful challenge to
district judge’s interlocutory order that desegregation
pane be submitted; liability finding not challenged):
radley v. School Board of Richmond, 345 F.2d 310, 313
(4th Cir. 1965), vacated on other grounds, 382 U.S. 103
(Board never challenged liability determination, but
only whether it should have a reasonable opportunity to
correct deficiencies without an injunction issuing).
The notion of pendency for Section 1988 purposes
ought to bear some relation to this reality. Judge Crow-
ley recognized as much when he resisted CHA’s persist-
ent efforts to “mischaracterize this case as a series of
separate matters instead of recognizing it as a continu-
ous litigation.” 523 F. Supp. at 689.
We are mindful of the genuine concern, discernible in
seme of the cases on which CHA relies and in the dis-
senting opinion of Judge Pell, that an expansive view of
pendency in equitable proceedings may permit long dor-
mant cases to be reopened solely for the purpose of
obtaining attorneys’ fees that were not available when
the cases were in active litigation. See, eg. Scott v.
oe eee County Board of Education, 400
F. Supp. 65, 68 (M.D.N.C. 1974), affirmed without 17d
ion, 520 F.2d 969 (4th Cir. 1975) (discussing 20 U.S.C.
§ 1617). But marginal cases can be left for another day:
in Gautreaur there has been no hiatus or period of dor-
mancy, and the issues pending in 1976 and after have
been central to the merits, not supposititious.
Furthermore, an award of fees under the 1976 Act is
addressed to the discretion of the district judge, and he
may refuse them—or limit them—if special circum-
stances would make a full award unjust. Newman v.
Piggie Park Enterprises, Inc., 390 U.S. 400, 402. The
question then becomes what circumstances are “special”
17a
No. 81-2223 17
in a retrospective award of fees? Surely not the duration
and expense of the litigation, once it is found to have
been pending on the relevant date—otherwise the Con-
gressional purpose would be subverted by judicial fiat.
As the First Circuit has observed, “once the door to the
Fees Act is opened, a full inquiry as to plaintiffs’
entitlement to an award [is] in order. It is of no moment
that the services in question were rendered almost
entirely prior to the effective date of the Act.” Dard v.
Travisono, 621 F.2d 464, 468 (1st Cir. 1980) (per curiam).
Surely also not a party’s expectation at the outset of the
litigation that fees would not be awardable, “since there
1s no indication that the [statutory] obligation * * *, if
known, * * * would have caused [the party] to order its
conduct so as to render [the] litigation unnecessary and
thereby preclude the incurring of such costs.” Bradley.
supra, 416 U.S. at 721. The Northcross Court, supra,
611 F.2d at 635, has suggested several factors that
would qualify: the entry of final orders disposing of
interim aspects of prolonged cases, including attorney
fee claims; the presence of potentially liable defendants
who have joined the litigation principally as amici
curiae; or the existence of delay that causes demon-
strated prejudice to the defendants.
CHA has not argued that special circumstances, in
the sense described above, make the award of fees
against it unjust. As we have recently had occasion to
remark, “the burden of demonstrating the existence of
special circumstances is on the defendant * * * and the
‘special circumstances’ limitation of section 1988 is ap-
= only to unusual cases.” Crosby v. Bowling, .....
sini , wey Slip op. No. 81-2109 (7th Cir., July 20,
1982) at 8. Instead CHA has concentrated its fire on the
argument that the case was not pending at all on
October 19, 1976—or that if certain portions of the case
were — then, the Gautreaur plaintiffs were not
prevailing parties—thus making the award of fees legally
improper. We find Judge Crowley’s contrary decision
that the entire litigation in which plaintiffs did prevail
% CHA does make a laches argument in a somewhat
different context. See Part II infra.
= “sve is |
18a
18 No. 81-2223
was open to a fee award more consistent with Congres-
sional purpose, the Gautreaur case itself, the relevant
precedents, and the powers of a court of equity.
II
CHA's second line of defense is that the Gautreaur
plaintiffs’ fee application was untimely. The argument
proceeds as follows: attorneys’ fees under Section 1988
are “costs” governed by Rule 54(d) of the Federal Rules
of Civil Procedure, Hairline Creations, Inc. v. Kefalas,
664 F.2d 652, 659-660 (7th Cir. 1981). Rule 54(d) has no
intrinsic time limit, but Rule 45 of the General Rules of
the Northern District of Illinois requires that a motion
for “costs” be filed within ten days of entry of a judg-
ment allowing costs. Failure to file in time waives “costs
other than those of the Clerk, taxable pursuant to 28
U.S.C. § 1920.” Therefore, according to CHA, at least
since 1973 when Local Rule 45 took effect, the Gautreaur
plaintiffs should have filed motions for attorneys’ fees
within ten days of each order entered in the case.
There are two defects in this argument. First, neither
Judge Crowley in this case, 523 F. Supp. at 689, nor
Judge Marshall in Independent Voters of Illinois v. Chi-
cago Housing Authority, No. 76 C 3683 (N.D. Ill. Jan. 31,
1979) (unpublished but reproduced in CHA App. at 114-
124), has subscribed to CHA’s construction of al Rule
45. They treat Rule 45 as applying only to Judicial Code
Section 1920 costs (a category that does not include at-
torney’s fees), and a late Rule 45 motion as waiving four
of the five kinds of costs otherwise recoverable under
Section 1920. In short, Rule 45 has nothing whatsoever to
% Rule 54(d) provides:
Costs. Except when express provision therefor is made
either in a statute of the United States or in these rules,
costs shall be allowed as of course to the prevailing party
unless the court otherwise directs * * *. Costs may be
taxed by the clerk on one day’s notice. Un motion served
within 5 days thereafter, the action of the clerk may be
reviewed by the court.
19a
No. 81-2223 19
do with a motion for attorney’s fees under Section 1988.
Cf. the discussion in Metcalf v. Borba, 51 L.W. 2081 (9th
Cir. July 22, 1982).
Another problem with CHA’s timeliness argument,
which Judge Crowley recognized, 523 F. Supp. at 689, is
that these fees are being sought pendente lite, Hanrahan
v. Hampton, 446 U.S. 754, and not at the conclusion of
the litigation. That is, the event that triggers the time
limit of Rule 45, even if the rule were applicable, has
not yet occurred: no judgment allowing costs has been
entered. To be sure, the original injunction and its modi-
fications have provided that costs will be assessed
against CHA when they are determined,”’ but that time
has not yet arrived. In other words, in its timeliness
argument—as in its pendency argument—CHA has over-
estimated the discreteness of the various stages of this
litigation.
Absent a fixed time limitation, the only constraint on
when the plaintiffs file for attorneys’ fees under Rule
54(d) of the Federal Rules is laches (CHA Br. 32). A
laches claim must demonstrate both undue delay and
prejudice to the non-delaying party, Advanced Hy-
draulics, Inc. v. Otis Elevator Co., 525 F.2d 477, 479
(7th Cir. 1975), certiorari denied, 423 U.S. 869. Here
* Paragraph XI of the ‘969 injunction provides that “[t]he
costs of this action shal) be taxed against CHA, subject to
further orders of this court.” 304 F. Supp. at 741 (emphasis
added). An illustration of how the costs provision works can
be found in the May 19, 1978, order (App. 109), dealing with
the compensation of an urban hovering expert.
(4) The compensatio.’ to be paid to the expert shall be
ixed. by further order of this Court. The expert may,
however, apply from time to time to the Master for com-
pensation and reimbursement of expenses and shall keep
records of time spent.
(5) Pursuant to Article XI of this Court’s order of July 1,
1969, the compensation and expenses of the expert, as ap-
=— by the Master and ordered by the Court, shall be
rne by defendant CHA and taxed as costs in this action.
20a
20 No. 81-2223
CHA can show neither. A motion for fees pendente lite is
presented early rather than late: “the party to whom the
fees [are] awarded [has] established the liability of the
opposing party, although final remedial orders [have]
not been entered.” Hanrahan, supra, 446 U.S. at 747.
The logic behind such an interim award must be that,
although it is premature in a sense, the plaintiff is suf-
ficiently likely to prevail ultimately that he (or his
lawyers) should be relieved from financial hardship
until then. Prematurity and laches are antinomical
concepts.
CHA also does not succeed in demonstrating prejudice
from the timing of the fee application. It instances only
Mr. Polikoff’s claim for forty hours spent on reconstruct-
ing his hours from 1965 to 1980 (Br. 32, n.*). Less than
three hours per year strikes us as fast work by Mr. Poli-
koff: he could not reasonably have been expected to spend
less time constructing an earlier petition for fewer hours.
It is much more likely, as appellees point out, that CHA
has benefited from the timing: “in th{e] reconstruction,
Mr. Polikoff omitted many hours he could no longer re-
= or — (Br. 16; cf. Polikoff affidavit, CHA
pp. at 5.)
III
Having found that the Fees Awards Act applies to this
litigation and that the fee petitions were filed at an ap-
propriate time, it remains only to consider CHA's argu-
ments about the actual amount of the award. This last
step of our review asks only whether the district judge’s
- award under Section 1988 amounted to an abuse of
iscretion.
CHA's main contentions are that (1) an hourly rate of
$125, though it concededly “is not excessive in the cur-
rent market for legal services,” is too high for all the
work done over a fourteen-year period; (2) the fees
should be limited because they are to be paid to ACLU
and BPI, two not-for-profit organizations; and (3) the
fees should be reduced because of the financial diffi-
No. 81-2223 21
culties CHA is experiencing (Br. 35-36; quoted lan-
guage at 35). These arguments were all fully aired be-
fore the district judge, and we cannot fault his resolu-
tion of them.
It is appropriate in this case to award a current hour-
ly rate (rather than various historical rates) for all the
hours claimed. In the first place, the appellants’ attor-
neys have had no fees at all during an intensely infla-
tionary period. The use of current market rates in com-
parable circumstances has been approved in Copeland v.
Marshall, 641 F.2d 880, 893 & n. 23 (D.C. Cir. 1980) (en
banc); Northeross, supra, 611 F.2d at 635; Hernandez v.
Finley, slip op. No. 74 C 3473 (N.D. Ill. Feb. 20, 1981) at
4; Custom v. Quern, 482 F. Supp. 1000, 1006 (N.D. Ill.
1980) (semdle). In the second place, the compensation
awarded multiplies the minimum number of hours Mr.
Polikoff worked by the hourly rate,”8 and Mr. Polikoff
stands as a surrogate for the teams of volunteer lawyers
who have staffed the Gautreaux case since its inception.”
% The total hours claimed are 3,003, all related directly to
the litigation against CHA (see note 2 supra). The district
udge noted that “from this court’s personal observations the
figure, at least since 1976 [when Judge Crowley first became
involved in the case], is conservative in the extreme.” 523 F.
Supp. at 684.
The dissent says that the claimed hours “could only
charitably be called an educated guess” (p. 28 infra). Neither
at trial nor on appeal did CHA challenge the accuracy of the
affidavit or the records to support it. C Br. 4, 32. The dis-
sent’s preference for “contemporaneous, complete and standar-
dized time records” (p. 29 infra) is difficult to square with any
retroactive application of the Fees Awards Act. Under that in-
— counsel would have to be prescient as well as
successful.
2 See note 1 supra. In addition to volunteer attorneys not of
record, law clerks, and other support personnel, the attorneys
of record include Charles Markels, Bernard Weisberg, Milton
I. Shadur, Merrill A. Freed, Roger Pascal, Robert J. Nollen,
Douglas W. Cassel, Jr., Elizabeth Lasser, and Howard A.
Learner.
22a
22 No. 81-2223
Thus CHA is not being penalized: it has had the use of
its money until now, which should offset the application
of current hourly rates; and it is not being required to
pay for all the legal help plaintiffs have had. CHA also
objects to the uniform $125 rate because the plaintiffs
had no entitlement to fees until 1976 and delayed peti-
tioning for them until 1981. These grounds simply re-
state the timeliness argument (Part II supra) and take
issue once again with Congress’ stated intent in enacting
the Fees Awards Act (Part I supra).
The notion that fee awards should be reduced where
they are to be paid to not-for-profit organizations has
been rejected by every court of appeals to consider it.
See Copeland v. Marshall, supra, 641 F.2d at 896-900,
especially the catalog of precedents under various fee
statutes at 900.% Three judges in the Northern District
of Illinois have similarly rejected the argument: Dietrich
uv. Miller, 494 F. Supp. 42, 44 (N.D. Ill. 1980) (Bua, J.);
Custom v. Quern, supra, 482 F. Supp. at 1002-1005 (N.D.
Ill. 1980) (Marshall, J.); and Lackey v. Bowling, 476 F.
Supp. 1111, 1116-1117 (N.D. Ill. 1979) (Grady, J.). We
take this opportunity to make explicit what was implied
in Hairston v. R & R Apartments, 510 F.2d 1090, 1093
(7th Cir. 1975) (construing 42 U.S.C. § 3612(c)): the
Seventh Circuit should be added to Copeland's roster.
*” Cf. Nottelson vv. Smith Steel Workers D.A.L.U. 19806.
643 F.2d 445, 447 (7th Cir. 1981), certiorari denied, 50
U.S.L.W. 3376 (district court’s award of fees under Title VII
correct, despite defendants’ argument that they would be paid
over to Seventh-Day Adventist Church and thus violate Es-
tablishment Clause); Northeross, su 611 F.2d at_ 637
(district court denial of fees to NAACP Legal Defense Fund
enproper: trial court’s basis for denial apparently that
NAACP lawyers provided duplicative services).
Recently the Third Circuit has invalidated on public policy
“es em a contractual ment between Community ]
rvices (CLS) and the Pennsylvania state agency that funds
CLS. The contract disabled CLS, a not-for-profit legal services
organization, from og cg me ag accepting fees under Section
1988. Shadis v. Beal, 51 L.W. 2082 (3d Cir. July 20, 1982).
No. 81-2223 23
The financial difficulties of CHA are alluded to only
in ing in the brief on appeal (Br. 36). CHA appar-
ently does not argue that its — warrants a flat
denial of fees—a position that is foreclosed by Entertain-
ment Concepts, Inc., III v. Maciejewski, 631 F.2d 497,
507 (7th Cir. 1980), certiorari denied, 450 U.S. 919.
Rather it argues that the district judge, who awarded
plaintiffs the least amount requested* “in recognition of
CHA’s limitations,” 523 F. Supp. at 691, should have cut
the figure back still further. CHA has submitted no in-
formation that might even tempt us to second-guess the
district judge on this issue, and of course second-guessing
a discretionary decision is not the role of a reviewing
court. Harrington v. DeVito, 656 F.2d 264, 269 (7th Cir.
1981), certiorari denied, 50 U.S.L.W. 3696 (“Generally,
an abuse of discretion only occurs where no reasonable
rson could take the view adopted by the trial court.”).
udge Crowley considered CHA’s financial hardship
argument and adjusted his award accordingly. That
satisfies us.
CONCLUSION
The district court correctly determined that Gautreaux
v. CHA was a pending case on October 19, 1976 and that
plaintiffs were prevailing parties though the litigation
| The fee petition asked for $125-$175 per hour in light of
the “skill, education and experience [of counsel] and the com-
plexity of the case.” 523 F. Upp. at 685. That would produce
a basic figure of $375,375-$525,525. It suggested that any
further adjustments in the basic figure should be upward
rather than downward.
% In the district court CHA also argued that, as a conse-
quence of its straitened financial condition, the fee award
would have come out of funds that would otherwise provide
low-income housing for gn apne That is potentially true
in any case in which the body required to pay has the ability
to shift its costs. What is equally true is that without legal
help the Gautreaur plaintiffs would probably never have ob-
tained any relief at all. 523 F. Supp. at 691.
24a
24 No. 81-2223
was not yet over. Accordingly, it was possible under
Section 1988 to award fees pendente lite to plaintiffs’
lawyers. No special circumstances existed to make the
award of fees for the entire course of the litigation un-
just, and there was no abuse of discretion in the deter-
mination of the amount of the award. CHA’'s liability for
$375,375 in attorneys’ fees is affirmed; costs to appellees.
PELL, Circuit Judge, dissenting.
In this case the parties do not disagree with the ma-
jority opinion that in enacting 42 U.S.C. § 1988 Congress
intended that a district court have the discretion to
award attorneys’ fees to a prevailing party in civil rights
cases pending before district courts on the 1976 effective
date of the section, including fees for work performed
before that date. On the facts of this case, which I do not
view in quite the same way as does the majority opin-
ion,' it appears to me that the district court’s allowance
of fees of $375,375 to the plaintiffs for work of which ap-
proximately two-thirds had occurred during a period
spanning a full decade prior to 1976, rendered under the
sponsorship of two not-for-profit organizations, neither
of which, nor their attorneys, during that decade, ex-
pected to be compensated by the opposing party, goes
beyond the reasonable boundaries indicated by the Con-
gressional intent. I therefore respectfully dissent.
' In viewing the facts, we are concerned with whether the
case against CHA was pending in October 1976 within the
meaning of the Congressional intent. To do so we must look at
the record of the proceedings. I regard the issue as not being
a question of whether the district court abused its discretion,
or whether its findings—and the record should speak for itself
in that respect—were clearly erroneous, but whether as a
matter of law that record reflects such pendency as will
breathe life—and fees—into litigation which was no longer
pending = the sense of the relief which precipitated it still be-
ing sought.
25a
No. 81-2223 25
It is true that the case in the district court, which was
filed in 1966, was still carried on the docket of the court
in 1976 and at the time the fee award was made in 1981.
Indeed, this situation remains true to this date. It is not
an unusual experience in injunctive cases for a court to
retain continuing jurisdiction to see that a dispositive
decree is in fact implemented. The majority properly
noted that other cases have been concerned that a too ex-
pansive view of pendency in equitable proceedings may
not provide the basis of a claim for attorneys’ fees, this
being true even though the issues which brought about
the litigation have long since been settled with the court
retaining only supervisory jurisdiction for implementa-
tion purposes.
In the present case the plaintiffs in 1969 had a judg-
ment entered in their favor permanently enjoining the
CHA from invidious discrimination on the basis of race
in the conduct of the public housing system. The CHA
was ordered to use its best efforts to increase the supply
of dwelling units as rapidly as possible in conformance
with the judgment. The court retained jurisdiction:
for all purposes, including enforcement and issuance,
upon proper notice and motion, of orders modifying
or supplementing the terms of this order upon the
presentation of relevant information with respect to
proposed developments designed by CHA alone or
in combination with other private or public agencies
to achieve results consistent with this order, ma-
terial changes in conditions existing at the time of
this order or any other matter.
304 F. Supp. at 741.
The majority opinion recognizes the propriety of the
test laid down in Peacock v. Drew Municipal Separate
School District, 483 F. Supp. 1072.(N.D. Miss. 1977),
affd, 611 F.2d 1160 (5th Cir. 1980) (per curiam) for
determining the requisite pendency. The parties do not
seem to disagree that the case would be pending if there
was an “active” issue that had not been finally resolved
at the critical time. An “active” issue was defined in
Peacock as being:
26a
26 No. 81-2223
We interpret “active” issue to mean a substantive
claim upon which a district court has not acted,
either in the first instance or on remand, or a sub-
stantive claim whose disposition by the district
court, or Court of Appeals, either is on appeal or is
appealable. The mere pendency on the date of en-
actment of an attorney fees act of supplemental pro-
ceedings to effectuate a prior final judgment is not,
in our opinion, sufficient to convert an action into
such a “pending action” as to warrant an award of
attorney fees under such act pursuant to Bradley-
type retroactive application of the act.
Id. at 1075.
As in Peacock, it appears to me from an examination
of the record that proceedings subsequent to the judg-
ment in 1969 were “nothing more than htop for en-
forcement of defendants’ previously established liability.”
Id. It is true that implementation did not occur with any
rapidity. Factors, however, beyond the control of the
CHA entered into the picture including a recalcitrant
city council and a moratorium on new federally financed
public housing. At this point it is appropriate to refer to
a factor which the majority opinion seems to blur into
insignificance, and that is that there were two separate
suits originally filed by the plaintiff Gautreaux—one
against CHA, which is all we are concerned with here,
and the other against the Department of Housing and
Urban Development (HUD). The two cases were, in
1971, consolidated. At that time the district court was
not contemplating any changes in the relief ordered in
1969 against CHA and was attempting to formulate a
remedy in the case against HUD. This effort continued
for many years. While the remedy against HUD was not
formulated until long after October 1976, the fact that
CHA willy-nilly was a party in the same action with
HUD should not affect its liability for fees simply be-
cause the HUD case was still viable in 1976.
In the district court, the plaintiffs themselves recog-
nized the two cases should not be treated as one for pur-
poses of awarding attorneys’ fees by specifically exclud-
27a
No. 81-2223 27
ing from the hours for which compensation was claimed
the time spent on proceedings in the companion case
against HUD.
Leaving aside the case against HUD, it appears to me
from the record that all of the proceedings against CHA
within the relevant period from October 1976 to the
present were in the nature of supplemental enforcement
peer rage to effectuate a prior judgment final as to
iability. The main part of those proceedings consisted of
appearances before a Master at which the only goal was
the “exploration of possible alternative courses in a diffi-
cult area” with a view to a final report for “possible use
by the district court.” There is no indication that a more
comprehensive remedy with respect to CHA was being
formulated or, indeed, was ever formulated. In simple
language, the 1969 order was intended to be, and in fact
was, a comprehensive remedy designed to terminate the
past effects of discrimination in the CHA system and
prevent discrimination in the future.
By October 1976, the remedy against CHA had been
fixed for more than six years. Although plaintiffs con-
tinued, of necessity, to be involved in the litigation per-
taining to enforcement, it does not seem to me to be
within the Congressional intent that this activity should
be used to create retroactive liability for a long-past
decade of legal work. Even more simply, there were no
substantive claims pending in October 1976 insofar as
CHA was concerned. It is of interest to note that the
majority opinion chooses to distinguish cases from other
circuits which have addressed generally the present
matter and place principal reliance, as the district
judge, on a district court case, Bolden v. Pennsylvania
State Police, 491 F. Supp. 958 (E.D. Pa. 1980).
The majority opinion brushes aside in a marginal note
the secondary contention of CHA that if any aspects of
this suit could be considered pending in October 1976,
they were only, at best, supplemental proceedings in
which the plaintiff did not prevail as required by Sec-
tion 1988. Although CHA was forced into a four-year
round of hearings before the Master, those hearings
28a
28 No. 81-2223
ultimately resulted in no order of any kind from the dis-
trict court. An eventual modification of the 1969 order,
not in a substantive but in a remedial enforcement
sense, resulted not from the plaintiffs’ efforts but
followed CHA’s resolution of its difficulties with HUD
that made it possible for CHA to develop the plan that
was accepted by the district courts and the plaintiffs to
implement the 1969 decree.
I feel certain that the dockets of the district courts
around this country reflect many cases which remain
under the necessary continuing supervision of a district
judge even though the substantive issues which brought
about the litigation have been disposed of long prior to
October 1976. I decline to believe that the Congress
intended to stand the 1976 amendment on attorneys’
fees on its head by opening these cases to attorneys’ fees
going back to the institution of suit with the fees to be
awarded on a monetary basis reflecting an unreal-
istically inflated amount inapplicable to the time at
which the bulk of the services was rendered.
Finally, I am concerned by what is evident in this case
of policy reasons for not expanding Section 1988 into the
dim past to encompass work which not-for-profit organ-
izations* have performed with no expectation of securing
attorneys’ fees as a result of which no accurate recorda-
tion of hours spent has been maintained. Thus, in this
case it — that the lead counsel had to rely upon
what could only charitably be called an educated guess.
I think the proper standard is set forth in National
* I am not unmindful of case law holding that even though
public interest organizations were willing to undertake cases
such as the present prior to 1976 without expectation of secur-
ing attorneys fees, they, nevertheless, may now be entitled to
such fees, even though such fees have windfall aspects; nor am
I unmindful that cases have held that these fees may be sub-
stantially keyed to rates current at the time of the award
although the services substantially antedated that period, but
viewing the payment order in this case I cannot regard it as
other than incorrect under the law.
29a
No. 81-2223 29
Association of Concerned Veterans v. Secretary of De-
Sense, ..... F.2d ..... (D.C. Cir. 1982) where the court states
“attorneys who anticipate making a fee application must
maintain contemporaneous, complete and standardized
time records which accurately reflect the work cone by
each attorney.” (Emphasis supplied.) Slip Op. at 11.
A true Copy:
Teste:
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA 5730—Midwest Law Printing Co., Inc., Chicago~8-30-82—400
30a
Dorothy GAUTREAUX, et al., Plaintiffs,
v.
Moon LANDRIEU, Secretary of Department
of Housing and Urban Development, et al., Defendants.
Nos. 66 C 1459, 66 C 1460.
United States District Court,
N. D. Illinois, E. D.
June 30, 1981.
MEMORANDUM OPINION AND ORDER
CROWLEY, District Judge:
This matter comes before the court on plaintiffs’ motion for
an award of attorneys’ fees against the Chicago Housing
Authority (CHA). For the reasons stated below, the motion is
granted in the amount of $375,375.
This case has had a protracted history. The complaint was
filed on August 9, 1966, seeking a declaration that CHA was
Operating a racially discriminatory public housing system, an
injunction against continued discrimination, and other relief the
court deemed just and equitable. That resolution of these
allegations was hard fought is evident from a citation to
reported decisions: 265 F.Supp. 582 (N.D.II1.1967); 296
F.Supp. 907 (N.D.111.1969); 436 F.2d 306 (7th Cir. 1970),
cert. denied, 402 U.S. 922, 91 S.Ct. 1378, 28 L.Ed.2d 661
(1971); 342 F.Supp. 827 (N.D.111.1972), aff'd, 480 F.2d 210
(7th Cir. 1973); cert. denied, 414 U.S. 1144, 94 S.Ct. 895, 39
L.Ed.2d 98 (1974); 384 F.Supp. 37 (N.D.[11.1974); S511 F.2d
82 (7th Cir. 1975); 498 F.Supp. 1072 (N.D.II1. 1980).
Contending that they have prevailed in their action, plain-
tiffs have moved for an award of attorneys’ fees under the Civil
Rights Attorneys’ Fees Act of 1976, 42 U.S.C. § 1988 (the Act).
3la
The Act did not become effective until October 19. 1976. Yet
plaintiffs maintain that § 1988 applies to this case from its
inception because the case was pending when the Act became
effective. Even so, plaintiffs are not seeking an award for the
services provided by all the attorneys. The motion covers only
the hours of Alexander Polikoff who has been lead counsel
throughout.
Mr. Polikoff’s affidavit states that he has spent at least
3,003 hours in this case. He considers that figure conservative
and a considerable understatement of the actual number of
hours spent. From this court’s personal observations the figure,
at least since 1976, is conservative in the extreme. Further, Mr.
Polikoff has excluded time spent on matters in which plaintiffs
did not prevail and time spent against parties other than CHA
in this consolidated case. In an affidavit, an experienced
attorney familiar with market and billing rates in Chicago states
that a reasonable hourly rate for Mr. Polikoff is in the range of
$125 to $175 per hour, in light of his skill, education and
experience, and the complexity of this case. Thus, the lodestar
fee here is between $375,375 and $525,525. Of course, the
lodestar may be adjusted up or down, but plaintiffs submit that
consideration of the relevant factors for such an adjustment
would suggest an upward modification.
Both the CHA and the Department of Housing and Urban
Development (HUD) have opposed the requested fee award.
CHA argues that the pendency of supplemental proceedings
when the Act became effective cannot be a vehicle for obtaining
fees for the entire litigation. Additionally, CHA maintains that
piaintiffs’ motion should be denied as untimely filed. Further.
CHA submits that plaintiffs cannot recover fees because they
were not prevailing parties within the meaning of the Act.
Finally, CHA contests the reasonableness of the proposed
hourly rate. HUD only partially opposes plaintiffs’ motion.
The federal defendant argues, like CHA, that fees may only be
awarded for work after October 19, 1976 because a final order
Q--~p_~e
32a
had been entered long before that date. Also in agreement witn
CHA, HUD contends the hourly rate requested is excessive.
With these objections, though, HUD does support the award of
some fee.
The fundamental issue here is the applicability of the Act.
There is no question that fees may be awarded in cases pending
when the Act became effective. Hutto v. Finney, 437 U.S. 678.
694 n.23, 98 S.Ct. 2565, 2575 n.23, 57 L.Ed.2d 522 (1978):
Bond v. Stanton, 555 F.2d 172 ( 7th Cir. 1977), cert. denied, 438
U.S. 916, 98 S.Ct. 3146, 57 L.Ed.2d 1161 (1978). The issue
here is the definition of “pending” and whether this case comes
within it.
Both CHA and HUD argue that a summary judgment
order issued on July |, 1969 and a number of other orders in
the fall of 1969 finally decided all active issues in this case. At
that time, CHA’s liability was determined. All other issues
before the court, the defendants submit, have been supplemen-
tal, concerning the appropriate remedy to enforce the judg-
ment. Relying primarily on Peacock v. Drew Mun. Separate
Sch. Dist., 433 F.Supp. 1072 (N.D.Miss. 1977), aff'd sub nom.
Andrews v. Drew Mun. Separate Sch. Dist., 611 F.2d 1160 ( Sth
Cir. 1980), and Escamilla v. Santos, 59\ F.2d 1086 (Sth Cir.
1979), CHA and HUD argue the existence of remedial proce-
dures to enforce a judgment is insufficient to make a case
“pending” on the date of enactment of the Act.
In Peacock, the plaintiffs had filed an action in February
1973 challenging defendant's policy prohibiting employment of
unwed parents by the school district. In July 1973. a final
judgment was entered declaring the policy unconstitutional.
The judgment er. joined enforcement of the policy, granted back
pay and cther affiu.aative relief, and retained jurisdiction in the
court to effectuate the judgment. Plaintiffs had requested
attorneys’ fees and in October 1973 the district court denied the
request. The case was appealed and in February 1975. the
court of appeals affirmed the final judgment, including denial of
33a
attorneys’ fees. By May 1976, the Supreme Court had granted
and then dismissed a petition for certiorari. Returning to the
district court, the plaintiffs moved in August 1976 to depose the
superintendent of the school district to determine back pay
amounts. The deposition was permitted and plaintiffs then
filed, in September 1976, a Request for Supplemental Relief
seeking specific amounts of back pay. This request was pending
when the Act became effective and plaintiffs renewed a request
for attorneys’ fees in November 1976. In December 1976, a
consent order was entered resolving the back pay issue.
The Peacock court denied an attorneys’ fees award. It was
first noted that the Act should be given retroactive effect’ in
accordance with Bradley v. Richmond School Bd., 416 U.S. 696,
94 S.Ct. 2006, 40 L.Ed.2d 476 (1974). The court viewed
Bradley as presenting a situation different from the one before
it, however. In Bradley, a fee award was pending resolution on
appeal when the statute providing availability of fees was
enacted. In Peacock, on the other hand, the fee issue and all
other “substantive” issues had been finally resolved before the
effective date of the Act. The Peacock court interpreted Bradley
and the legislative history to require application of the Act only
in cases in which an “active issue’ was pending on the
enactment date.
An active issue was defined as “a substantive claim upon
which a district court had not acted, either in the first instance
or on remand, or a substantive claim whose disposition by the
' With due respect to the court, this issue is not a matter of
retroactivity. Rather, it involves the traditional rule that a court
should apply the law that is in existence at the time it renders a
decision, unless the statute or congressional intent dictates
otherwise or unless the application would result in manifest
injustice. Northcross v. Board of Educ., 61\ F.2d 624, 633 ( 6th
Cir. 1979), cert. denied, 447 U.S. 911, 100 S.Ct. 2999, 64
L.Ed.2d 862 ( 1980); see Wright v. Califano, 603 F.2d 666, 672
n.17 (7th Cir. 1979), cert. denied, 447 U.S. 911, 100 S.Ct. 2999,
64 L.Ed.2d 862 (1980).
34a
district court or Court of Appeals, either is on appeal or is
appealable.” 433 F.Supp. at 1075. Thus, the court reasoned
that the pendency of supplemental proceedings to effectuate a
final judgment is not within the definition of an “active issue”.
Because it considered the Request for Supplemental Relief and
the eventual consent decree as “nothing more than provid[ing]}
for enforcement of defendant’s previously established liability”,
the court held the case was not pending on the effective date of
the Act and denied attorneys’ fees.?
2 The Peacock decision was affirmed per curiam, 611 F.2d
1160 ( Sth Cir. 1980), and its reasoning was followed in another
Fifth Circuit case cited by CHA. In Escamilla v. Santos, 59\
F.2d 1086 (5th Cir. 1979), the court concluded that a motion
concerning the failure to comply with a consent decree is “in the
nature of” a supplemental proceeding to effectuate a consent
judgment and is not a pending active issue. 591 F.2d at 1088 &
n.1. CHA has also briefly referred to other cases to support its
position.
In Gonzales v. Fairfax-Brewster Sch., Inc., 569 F.2d 1294
(4th Cir. ), cert. denied, 439 U.S. 927, 99 S.Ct. 311, 58 L.Ed.2d
320 (1978), a denial of attorneys’ fees had been affirmed
(along with the grant of injunctive and damages relief) by the
Supreme Court in August 1976. After the effective date of the
Act, the plaintiffs moved for fees and costs in the district court.
The Fourth Circuit affirmed denial because there had been a
final judgment before October 1976 and no issue was pending.
In Henry v. Clarksdale Mun. Separate Sch. Dist., 579 F.2d 916
(5th Cir. 1978), an attorneys fee statute similar to the Act was
at issue. The court noted that on date of enactment: all
definitive or substantive orders of the district and appellate
courts had been entered and were being complied with; no
appeals were pending; no motion for attorneys’ fees was
pending; and the only order after enactment was entered upon
plaintiffs’ motion to require certain bus transportation. The
court concluded these circumstances presented no active issue
and, therefore, the case was not pending.
David v. Travisono, 621 F.2d 464 ( Ist Cir. 1980) is cited
by contrast. There, a judgment order in April 1976 finally
resolved all but one substantive issue. A request for appoint-
( Footnote continued on following page)
35a
Plaintiffs respond that Peacock and defendant’s other cases
are distinguishable because all issues including entitlement to
attorneys’ fees had been resolved in final orders. Plaintiffs
submit that if any aspect of a case is in active litigation on the
effective date of the act and if no earlier order resolved all issues
in the case, including fees, the entire case is “pending” for
purposes of application of the Act. Their position is supported,
plaintiffs argue, by three decisions of the Fifth Circuit after
Peacock. Taylor v. Sterrett, 640 F.2d 663 (5th Cir. 1981);
Robinson v. Kimbrough, 620 F.2d 468 (5th Cir. 1980); Corpus
v. Estelle, 605 F.2d 175 (Sth Cir. ), cert. denied sub nom. Estelle
v. Corpus, 445 U.S. 919, 100 S.Ct. 1284, 63 L.Ed.2d 605
(1980).
In Taylor, the Fifth Circuit synthesized many of its deci-
sions On this issue, including Peacock and Corpus. Taylor
reaffirmed the rationale of Peacock that when all issues have
been finally disposed of, including the attorneys’ fees issue,
before the effective date of the Act, supplemental proceedings
to effectuate a final judgment are independent and do not make
the entire case pending. The Taylor court noted that Corpus
appeared to be to the contrary because “attorneys’ fees were
awarded for work done in the supplemental proceedings even
though the initial case had been concluded in 1971.” 640 F.2d
at 669. However, this conflict was only apparent. according to
( Footnote continued from preceding page}
ment of an ombudsman was conditionally denied without
prejudice at that time. The request was finally denied in that
case in June 1977. Because that issue (even though character-
ized as slight and trivial) and a request for attorneys’ fees were
unresolved in October 1976, the case was pending for purposes
of applicability of the Act. Finally, Northcross v. Board of
Educ., 611 F.2d 624 ( 6th Cir. 1979), cert. denied, 447 U.S. 911,
100 S.Ct. 2999, 64 L.Ed.2d 862 (1980), is cited because the
court noted there may be a series of final orders that cut off the
possibility of obtaining fees for earlier work in a drawn out
school desegregation case. 611 F.2d at 635.
36a
Taylor, because the attorney's fees had not been requested unt
conclusion of the enforcement proceedings. /d. The Taylor
court then concluded that the critical determination is “whether
the attorneys’ fees issue has been decided for the initial case: if
this question has not been decided, then apparently this unre-
solved issue is sufficient to make the entire case pending.” /d.
Relying on this interpretation of Corpus and the fees issue.
plaintiffs contend this case was pending because the issue of
fees has not been decided for the “initial” case which deter-
mined the liability of CHA.
Plaintiffs also argue that the 1969 order. which CHA relies
on as the final order rendering all subsequent proceedings
supplemental, did not finally dispose of all issues. Instead
plaintiffs contend the order contemplated a continuing judicia'
proceeding as did the order in Bolden v. Pennsylvania State
Police, 491 F.Supp. 958 (E.D.Pa. 1980). In Bolden, a class
action had been reduced to final judgment by a consent decree
in June 1974 and defendants argued it was therefore not
pending for purposes of applying the Act. The Bolden court
rejected the argument because the decree expressly con-
templated a continuing judicial proceeding (including an
evidentiary hearing), the defendants were still operating under
interim goals, and the judicial proceedings had not yet oc-
curred. Thus, the court did not consider the case pending only
in the technical sense that the court had continuing jurisdiction
to enter necessary and desirable orders, but recognized it as
pending for purposes of applying the Act. 491 F.Supp. 960-61.
As in Bolden, plaintiffs contend that the 1969 order in this case
expressly contemplated continuing judicial proceedings so the
case was pending in October 1976.
37a
Both aspects of plainuffs’ argument appear to be per-
suasively controlling. However, the simple test enunciated by
the Fifth Circuit in Taylor cannot be accepted for two reasons.
First, if the crucial determination of “pending” is whether the
fees issue has ever been resolved, then apparently nothing need
actually be pending on the effective date of the Act. A party
could move for an award of fees for the first time after passage
of the Act when the case was otherwise dormant. Furthermore.
if a case was in ongoing supplemental proceedings in October
1976, there is no basis for denying fees under the Act to a party
who was unsuccessful under prior law, while at the same time
granting fees to a party who never attempted to obtain fees
under the prior law.
A second reason for rejecting the Jay/lor test is that the
court inaccurately described the proceedings in Corpus when it
attempted to harmonize the cases. When the Corpus court
described the history of that case, it did refer to the second
round of litigation as enforcing the first decision of the court of
appeals. Corpus v. Estelle, 605 F.2d 175, 176 (Sth Cir. 1979).
The Taylor court considered those matters, which were pending
in October 1976, as supplemental. However, an examination of
the history of the Corpus litigation reveals that there was no
final decision in the first court of appeals decision and the
substantive claims were pending in October 1976. In Novak v.
Beto, 453 F.2d 661 (Sth Cir. 1971), the court reversed the
district court’s finding that the Texas Department of Correc-
tions had an adequate alternative to justify its prohibition of
legal assistance by one inmate to another. That reversal was
not based on a determination that no adequate alternative
3 The only case that could be directly binding here, Bond v.
Stanton, 555 F.2d 172 (7th Cir. 1977), cert. denied, 438 U.S.
916, 98 S.Ct. 3146, 57 L.Ed.2d 1161 (1978). is easily dis-
tinguishable on its facts. There, the attorneys’ fees issue was on
appeal when the Act was passed. In this case, this motion put
the fee award at issue, obviously long after the effective date of
the Act.
38a
existed, but rather on a conclusion that the defendants had not
carried their burden in proving one. The defendants then
partially changed their policy, but the plaintiffs returned to the
district court seeking an injunction against a prohibition of
prisoners providing legal assistance to one another. The district
court issued a declaratory judgment and an injunction in 1975.
The defendants appealed and while the case was pending there.
the Act became effective. The district court was affirmed in
1977. Corpus v. Estelle, 551 F.2d 68 (Sth Cir. 1977). Thus.
contrary to the Taylor court description, there had been no final
resolution of the plaintiffs’ substantive claims until the 1977
decision; the merits of the case were pending on appeal in
October 1976.
Although the Taylor test is rejected as determinative.
plaintiffs’ other argument is persuasive. The defendants’ prem-
ise, that the 1969 order was final and all other matters were
supplemental, simply cannot be accepted. The final judgment
order* directed CHA to file a modification of its tenant assign-
ment pian which would be applicable until further order of the
court. Thereafter, a more comprehensive plan was to be filed.
following which the court had authority to enter further orders.
Gautreaux v. CHA, 304 F.Supp. 736, 739, 740 (N.D.II1.1969).
Additionally, the order established that the results of the 1970
census would presumptively determine racial compositions of
census tracts, but that the presumption was rebuttable by any
party on motion. 304 F.Supp. at 737. The order also directed
CHA not to build certain kinds of public housing unless with
approval by court order. 304 F.Supp. at 739. Further, CHA
was required to file various periodic reports with the court.
Finally, in the order, the court retained jurisdiction for all
4The July 1969 decision granted summary judgment for
plaintiffs and established CHA’s liability. The opinion was not
a final judgment order, though, because the court contemplated
entering that 30 days thereafter. Gautreaux v. CHA, 296
F.Supp. 907, 914 (N.D.I11.1969). The judgment order is
reported at 304 F.Supp. 736 ( N.D.II1. 1969).
39a
purposes and listed several of them. Thus, even though this
order was final in the sense that it was appealable and that it
established liability, continuing judicial proceedings that would
involve active controversy were expressly contemplated. On the
authority of Bolden alone, this case was pending for purposes of
applying the Act.5 But the case also falls within the Peacock
definition of “active issue” because the continuing proceeding
necessarily involves “substantive claims upon which the court
has not acted.” Therefore, the Act applies to the entire litiga-
ion.
CHA also argues that plaintiffs have waived their right to
fees by failing to move timely for an award. CHA contends
that because § 1988 fees are assessed as costs, Rule 45 of the
General Rules of this court applies. Applying that 10-day
requirement, CHA submits that plaintiffs should have moved
within 10 days of passage of the Act for all earlier work.
Additionally, CHA asserts the 10-day requirement was not
complied with on all subsequent matters. In response, plaintiffs
argue that CHA mischaracterizes this case as a series of
separate matters instead of recognizing it as continuous litiga-
tion. Thus, they submit Rule 45 does not apply to this motion
which seeks an award pendente lite, before the case is fully and
finally concluded.
Fee awards pendente lite are authorized under the Act
when a party has prevailed on the merits of some of his claims.
Hanrahan v. Hampton, 446 U.S. 754, 100 S.Ct. 1987, 64
L.Ed.2d 670 (1980). In any event. this court has held that Rule
45 does not apply to a motion for fees under the Act.
Independent Voters of Illinois v. CHA, No. 76 C 3683 (N.D.III
January 31, 1979) (Marshall, J.) Judge Marshall ruled that
5 The facts of this case weigh even heavier than in Bolden
toward a determination of pendency. In Bolden, the con-
templated proceedings had not yet occurred in 1980. Here, the
parties are well aware that resort to the court has often been
necessary. In fact, when the Act became effective the case was
actively before Magistrate Jurco.
40a
only the doctrine of laches applies when the issue of umeliness
is raised. CHA has not argued any prejudice because of the
timing of this motion. Clearly, then, plaintiffs have not waived
their right to an award of fees.
CHA next argues that plaintiffs are not entitled to fees for
what it calls supplemental proceedings because plaintiffs did
not prevail in those matters. Specifically, CHA notes that
plaintiffs were unsuccessful in their attempt to have a receiver
appointed by the court. In addition, CHA contends that
although plaintiffs succeeded in defending Judge Austin’s order
appointing a Master, the hearings before the Master were
fruitless because no order from the court resulted. Further. the
Master had rejected plaintiffs’ suggestion that a receiver be
appointed. Finally, CHA submits that the only matter in which
plaintiffs could arguably be considered as prevailing is the 1979
agreed order modifying the 1969 judgment to accept the CHA's
housing plan. However, CHA argues that plaintiffs’ action was
not a material factor in bringing about CHA'’s decision to
propose the housing plan and, therefore, they are not entitled to
fees on the matter.
CHA’s contentions must be rejected, however, because
they are based on the continued mischaracterization of this case
as many separate matters, including independent supplemental
proceedings. Viewed as a whole, there is no question that
plaintiffs have prevailed in this case. When that is the situation.
a court’s discretion is very narrow, because fees are to be
awarded “almost as a matter of course.” Dawson v. Pastrick,
600 F.2d 70, 79 (7th Cir. 1979). Furthermore, the court must
“allow compensation for hours expended on unsuccessful re-
search on litigation, unless the positions asserted are frivolous
or in bad faith.” Sherkow v. State of Wisconsin, 630 F.2d 498,
504 (7th Cir. 1980), quoting Northcross v. Board of Educ., 6\\
F.2d 624, 635-36 (6th Cir. 1979), cert. denied, 447 U.S. 911,
100 S.Ct. 2999, 64 L.Ed.2d 862 (1980). There is no suggestion
from CHA that plaintiffs’ actions were frivolous or brought in
bad faith; they clearly were not.
4la
Indeed, even under the material factor test CHA relies on.
the plaintiffs’ claim for fees would survive. In Morrison vy.
Ayoob, 627 F.2d 669 (3d Cir. 1980), cert. denied, 449 US.
1102, 101 S.Ct. 898, 66 L.Ed.2d 828 (1981), the court recog-
nized that several factors in addition to a specific civil rights
lawsuit may bring about compliance with the law by defend-
ants. Thus, the court reasoned that the plaintiffs’ action must be
a material factor. Here, plaintiffs’ pursuit of the proceedings
before the Master, the 1979 order and the motion to appoint a
receiver undoubtedly contributed in a substantial way to CHA
Starting to provide housing in compliance with the court’s
orders. Moreover, those pursuits were unquestionably a mate-
rial factor in bringing about changes in defendants’ conduct.
especially since the motion for appointment of a receiver was
denied without prejudice to renew. That motion was a
substantial factor in compelling the CHA to show demonstrable
progress. Therefore, plaintiffs must be considered the pre-
vailing party in the case as a whole.
In CHA's final contention, it briefly argues that plaintiffs’
hourly rate is excessive. First, CHA submits that current market
rates should not be used because plaintiffs had no right to fees
until 1976 and then they waited five years to request them.
Second, CHA submits that the hourly rate is excessive for the
proceedings since 1974 because a disproportionate amount of
time was spent for the results achieved. HUD also argues that
the hourly rate should be reduced, but for a different reason.
HUD maintains that because Mr. Polikoff is a salaried attorney
for a not-for-profit, public interest organization and the fees are
to be paid directly to the Illinois Division of the American Civil
Liberties Union (ACLU) and the Business and Professional
People for the Public Interest (BPI), the fee award should
reflect only reimbursement to BPI and ACLU for the expenses
they incurred, including salary, overhead and other costs.
HUD relies on two cases for this argument: Page v. Preisser,
468 F.Supp. 399 (S.D.lowa 1979); Alsager v. District Court of
Polk City, lowa, 447 F.Supp. 572 (S.D.lowa 1977).
_—
=
_on
42a
The resolution of these issues need not be lengthy. Other
than HUD’s two cases, apparently every other court has
rejected the contention that when a salaried attorney of a not-
for-profit organization provides the legal services, private at-
torney rates should not be used. See, e. g., Copeland v.
Marshall, 641 F.2d 880, 896-900 (D.C.Cir.1980); Oldham vy.
Ehrlich, 617 F.2d 163, 168-69 (8th Cir. 1980); Palmigiano v.
Garrahy, 616 F.2d 598, 602 & n.6 ( Ist Cir.), cert. denied, 449
U.S. 839, 101 S.Ct. 115, 66 L.Ed.2d 45 (1980); Dietrich v.
Miller, 494 F.Supp. 42, 44 (N.D.I11.1980) ( Bua, J.); Custom vy.
Quern, 482 F.Supp. 1000 ( N.D.I1. 1980) ( Marshall, J. ); Lackey
v. Bowling, 476 F.Supp. I 111, 1116-17 (N.D.111.1979) (Grady,
J.). This court is convinced the majority of courts are correct.
CHA'’s objection to using current hourly market rates is
' also an issue that has often been rejected. Hernandez v. Finley,
No. 74 C 3473, slip op. at 4(N.D.IIl. Feb. 20, 1981); Custom v.
Quern, 482 F.Supp. 1000 (N.D.II1.1980); see Copeland v.
Marshall, 641 F.2d 880, 893 & n.23 (D.C.Cir.1980). These
decisions are based on a valid consideration: throughout the
litigation use of the money has been deprived. In an inflation-
ary era, that is a significant loss which should be compensated
in part by use of current rates. Thus, the prejudice, if any,
resulting from an award of fees now “has inured to the
plaintiffs’ attorneys who have provided years of service without
compensation in hand.” Northcross v. Board of Educ., 611 F.2d
624, 635 (6th Cir. 1979), cert. denied, 447 U.S. 911, 100 S.Ct.
2999, 64 L.Ed.2d 862 (1980). Current market rates, therefore,
shall be used.
Only the final calculation of the award remains. An area
of discretion is reserved for the court in determining the
reasonable dollar amount. Plaintiffs have only submitted a
range of reasonable fees and the factors enunciated in Muscare
v. Quinn, 614 F.2d 577 (7th Cir. 1980), may require an
adjustment to the lodestar figure. As plainuffs suggest, the
Muscare factors do militate towards an upward adjustment.
HUD, on the other hand, submits the court cannot ignore the
financial reality of the CHA.
43a
The financial limitations of a party cannot justify denial of
a reasonable fee. Entertainment Concepts, Inc. III v. Macie-
jJewski, 631 F.2d 497, 507 (7th Cir. 1980); Witherspoon v.
Sielaff, 507 F.Supp. 667, 670 (N.D.II1.1981). Yet because
plaintiffs have submitted even their lowest figure as a reason-
able rate, awarding that amount in recognition of CHA’s
limitations does not deny plaintiffs a reasonable fee. Unques-
tionably, $375,375 is a substantial amount of money that might
otherwise be used to provide the relief on plainuffs’ substantive
claims. However, because the plaintiffs are prevailing parties
the court has virtually no discretion to deny an award. Addi-
tionally, the simple fact is, without the services of Mr. Polikoff
and the other attorneys (for whom no fees were sought) the
plaintiffs may never have obtained the housing that only now is
beginning to materialize, fifteen years after the complaint was
filed.
Accordingly, plaintiffs’ motion for an award of attorneys’
fees is granted in the amount of $375,375. Payment shall be
made directly to the Illinois Division of the American Civil
Liberties Union and Business and Professional People for the
Public Interest.
44a
UNITED STATES COURT OF APPEALS
For the Seventh Circuit
Chicago, Illinois 60604
November |, 1982
Before
Hon. WALTER J. CUMMINGS, Chief Judge
Hon. WILBUR F. PELL, JR.. Circuit Judge
Hon. OSCAR H. DAVIS, Circuit Judge*
DOROTHY GAUTREAUX, et al.,
Plaintiffs-Appellees,
No, 81-2223 VS.
THE CHICAGO HOUSING
AUTHORITY,
Defendant-Appellant.
ORDER
On consideration of the petition for rehearing and sugges-
tion for rehearing en banc filed in the above-entitled cause by
defendant-appellant The Chicago Housing Authority, a vote of
the active members of the Court was requested. and a major-
ity** of the active members of the Court has voted to deny a
rehearing en banc. A majority of the judges on the original
panel has voted to deny the petition for rehearing. Accord-
ingly,
IT IS ORDERED that the aforesaid petition for rehearing
be, and the same is hereby, DENIED.
*The Honorable Oscar H. Davis. Circuit Judge of the
United States Court of Appeals for the Federal Circuit, is sitting
by designation.
** Judge Pell voted to grant the petition for rehearing.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.