Appendix — Illinois State Board of Elections v. Hastert

94 457 SEP -7 199

OFFICE OF THE CLERK

No.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1994

ILLINOIS STATE BOARD OF ELECTIONS, et al.,

Petitioners,

Le

DENNIS J. HASTERT, et al.,

Respondents.

Petition for Writ of Certiorari to the United

States Court of Appeals for the Seventh Circuit

APPENDIX TO THE

PETITION FOR WRIT OF CERTIORARI

ROLAND W. BURRIS

Attorney General of Illinois

ROSALYN 8. KAPLAN

Solicitor General of Illinois

Counsel of Record

DEBORAH L. AHLSTRAND

Assistant Attorney General

100 West Randolph Street

12th Floor

Chicago, Illinois 60601

(312) 814-3698

Attorneys for Petitioners

Printed by Authority of the State of Illinois (P.O. 36165—85—8-30-94)

INDEX TO APPENDIX

—_—_—_____

Slip Opinion of the United States Court of Appeals

for the Seventh Circuit, as amended, June 1,

REO Ree gr Paar Px SINS oe ree aah rn a

Slip Opinion of the United States Court of Appeals

for the Seventh Circuit, December 17, 1993 ..

Minute Order of the United States District Court

for the Northern District of Illinois, Eastern

Division, January 17, 1992.................

Memorandum Opinion and Order of the United

States District Court for the Northern District

of Illinois, Eastern Division, January 17, 1992 .

Minute Order of the United States District Court

for the Northern District of Illinois, Eastern

Division, January 21, 1992.................

Minute Order of the United States District Court

for the Northern District of Illinois, Eastern

Division, amma 7, TH voocc cc ccecus.....

Minute Order of the United States District Court

for the Northern District of Illinois, Eastern

Division, December 27, 1991...............

PAGE

30

54

67

69

IN THE

Supreme Court of the United States

OCTOBER TERM, 1994

ILLINOIS STATE BOARD OF ELECTIONS, et al.,

Petitioners,

Va

DENNIS J. HASTERT, et al.,

Respondents.

Petition for Writ of Certiorari to the United

States Court of Appeals for the Seventh Circuit

APPENDIX TO THE

PETITION FOR WRIT OF CERTIORARI

App. 1

[Dated June 1, 1994]

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Nos. 92-1397, 92-1398, 92-1399, 92-1402 and 92-1403

DENNIS J. HASTERT, HARRIS FAWELL,

JOHN E. PORTER, PHILIP M. CRANE,

HENRY J. HypDE, Ropert H. MICHEL,

and THOMAS W. EwIna,

Plaintiffs-Appellants,

and

JOHNNY Scott and BEN Howarp,

Plaintiffs-Intervenors-A ppellants,

Vv.

ILLINOIS STATE BOARD OF ELECTION

COMMISSIONERS, JOHN J. LANIGAN,

THERESA M. PETRONE, RICHARD A. COWEN,

HANNELORE HUISMAN, LAWRENCE E.

JOHNSON, Davin E. Murray, LANGDON D.

NEAL and WANDA T. REDNOUR,

Defendants-Appellees.

DENNIS J. HASTERT, HARRIS FAWELL,

JOHN E. PORTER, PHILIP M. CRANE,

HENRY J. Hype, RoBert H. MICHEL,

and THOMAS W. EwInc,

Plaintiffs-Appellants,

Vv.

(Caption continued on following page)

App. 2

STATE BOARD OF ELECTIONS, JOHN J.

LANIGAN, THERESA M. PETRONE,

RICHARD A. COWEN, LAWRENCE E.

JOHNSON, DAVID E. Murray, LANGDON D.

NEAL, WANDA T. REDNOUR and

HANNELORE HUISMAN,

Defendants-Appellees.

WILFREDO NIEVES, AL JOHNSON,

LINDA CORONADO, BOBBY RUSH,

JESUS GARCIA, REV. WILLIE BARROW,

RAFAEL BoriA, MIGUEL DEL VALLE,

RoBERT L. Lucas, LEON D. FINNEY, JR.,

ReEv. CLAY EVANS, JOSEPH GARDNER,

LUIS V. GUTIERREZ, REGNER SUAREZ,

JOSEPH BERRIOS, MIGUEL A. SANTIAGO,

and NEOMI HERNANDEZ,

Plaintiffs-Appellants,

v.

ILLINOIS STATE BOARD OF ELECTION

COMMISSIONERS, JOHN J. LANIGAN,

THERESA M. PETRONE, RICHARD A.

COWEN, HANNELORE HUISMAN, LAWRENCE E.

JOHNSON, DAvID E. MuRRAY, LANGDON D.

NEAL and WANDA T. REDNOUR,

Defendants-Appellees.

THE CHICAGO URBAN LEAGUE,

CRAIG R. COLLINS, MARK ALLEN,

and NIKOLAS C. THEODORE,

Plaintiffs-Appellants,

v.

(Caption continued on following page)

App. 3

STATE BOARD OF ELECTIONS, JOHN J.

LANIGAN, THERESA M. PETRONE,

RICHARD A. COWEN, LAWRENCE E.

JOHNSON, Davip E. Murray, LANGDON D.

NEAL and Wanpa T. REDNOUR,

Defendants-A ppellees.

ANN ROSEBROOK, DARYL BARKLOW,

AMIEL CUETO, RICHARD MARK,

JEANELLE NORMAN, CAROLYN TONEY,

LEE Bascock, RAYMOND OLIVER,

BARBARA POSHARD, WILLIAM MATTHEWS,

GERALD HAWKINS, and Eva SAVALA,

Plaintiffs-Appellants,

v.

STATE BOARD OF ELECTIONS,

JOHN J. LANIGAN, THERESA M.

PETRONE, RICHARD A. CowEN,

HANNELORE HUISMAN, LAWRENCE E.

JOHNSON, Davip E. Murray,

LANGDON D. NEAL and Wanpa T. REDNOUR,

Defendants-A ppellees.

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

Nos. 91-C-4028, 91-C-4154, 91-C-4643, 91-C-4656 and 91-C-5472

Michael S. Kanne, Circuit Judge, Charles R. Norgle, Sr. and

Suzanne B. Conlon, District Judges.

App. 4

ARGUED JANUARY 7, 1993—DEcIDED DECEMBER 17, 1993

REHEARING GRANTED and OPINION AMENDED JUNE 1, 1994*

Before CUDAHY, COFFEY and ROVNER, Circuit Judges.

CuDAHY, Circuit Judge. We are asked here to review

a decision of a three-judge district court denying attor-

neys’ fees to certain parties involved in litigation regard-

ing congressional redistricting in Illinois following the 1990

census. We initially decided that we had jurisdiction over

the appeals brought by the Hastert, Nieves, Urban League

and Scott plaintiffs, but jurisdiction over the Rosebrook

appeal only to the extent that they appealed the district

court’s denial of their Rule 60(b) motion to reconsider its

judgment. Hastert v. State Board of Election, Nos. 92-

1397, 92-1398, 92-1399, 92-1402 & 92-1403 slip op. at 11-12

(7th Cir. Dec. 17, 1993). We then affirmed the district

court’s determination that the Hastert and Nieves plain-

tiffs were prevailing parties, id. at 14, and that the Urban

League plaintiffs were not, id. at 15-17. But we reversed

the district court’s determination that the Scott plaintiffs

were not prevailing parties. Jd. at 14-15. Finally, we re-

versed the decision that there existed “special circum-

* On consideration of the petition for rehearing with suggestion

for_rehearing en banc filed by the defendants-appellees, a vote of

the active members of the court was requested, and a majority

of the judges in active service have voted to deny rehearing en

banc. Chief Judge Posner, Judge Coffey and ct Manion voted

to grant rehearing en banc. Judge Flaum and Judge Kanne did

not participate in the consideration of the suggestion for rehear-

ing en banc.

On consideration of the petitions for rehearing with suggestion

for rehearing en banc filed by the a af. se oy the panel

has voted to grant in part the petitions for rehearing, and herein

issues its amended opinion. No judge in active service has requested

a vote on the suggestion for oe en banc. Judge Flaum and

Judge Kanne did not participate in the consideration of the sug-

gestion for rehearing en banc.

App. 5

stances” precluding an awarding of fees to the prevail-

ing parties. Jd. at 17-19. The Rosebrook plaintiffs, the

State Board of Election and the Urban League have since

filed petitions for rehearing. We today grant in part the

petition filed by the Rosebrook plaintiffs and grant the

petition of the Urban League plaintiffs. As a consequence,

we issue this amended opinion.

I.

We are presented initially with some rather puzzling

jurisdictional questions. To resolve them, we must recount

the procedural history of this litigation in regrettably copious

detail.

Because Illinois’ population grew during the 1980s at

a rate slower than that of the United States as a whole,

the number of congressional seats apportioned to Illinois

was reduced from 22 to 20. The task thus fell to the IIli-

nois legislature to implement a constitutionally acceptable

congressional redistricting plan, taking into account the

fewer districts allocated to the state.’ This is not an easy

task under any circumstances, but it may be virtually im-

possible when the governor is of a different political party

than a majority of the members of both houses of the leg-

islature.? Such was the situation in Illinois in 1991. And,

quite predictably, the Illinois General Assembly failed to

enact a redistricting plan by the constitutionally mandated

June 30, 1991 deadline. Indeed, the legislature failed even

to bring a redistricting plan to the floor for debate.

Anticipating this legislative deadlock, the Republican

Party members of the Illinois congressional delegation (the

“Hastert” plaintiffs or group) filed the initial action in this

Article 4, § 3(b) of the Illinois Constitution States, “In the year

following each Federal decennial census year, the General Assembly

by law shall redistrict the Legislative and Representative Districts.”

? Redistricting plans are within the veto power of an Illinois gov-

ernor. See Williams v. Kerner, 30 Ill.2d 11, 195 N.E.2d 680 ( 1964).

App. 6

matter on June 27, 1991. The Hastert plaintiffs sought

a declaration that the present Illinois congressional dis-

tricts were unconstitutional because of changes reflected

in the 1990 census. They also sought to enjoin the Illinois

State Board of Elections from conducting the 1992 con-

gressional elections under the congressional district plan

then in effect, and submitted their own redistricting pro-

posal to replace the outdated map. The Chief Judge of

this court convened a three-judge district court to hear

the case, as 28 U.S.C. § 2284(a) requires.

On July 3, 1991, a group of Hispanic and African-American

voters (the “Nieves” plaintiffs or group) filed a similar

action. Actually, the “Nieves” plaintiffs frequently partici-

pated as two separate sub-groups—an Hispanic sub-group

and an African-American sub-group. These sub-groups were

often represented by different lawyers. In addition to the

relief requested by the Hastert group, the Nieves plain-

tiffs (both sub-groups) sought the creation of a congres-

sional district containing a majority of Hispanic voters

which, they maintained, section two of the Voting Rights

Act, 42 U.S.C. § 1973, required. The Nieves and Hastert

actions were later consolidated.

On July 24, 1991, a group of voters ostensibly acting

on behalf of certain members of the Illinois congressional

delegation affiliated with the Democratic Party (the “‘Rose-

brook”’ plaintiffs or group) filed still another similar action,

which was subsequently consolidated with the Hastert and

Nieves cases. On the same day, U.S. Representative Car-

diss Collins and U.S. Representative Charles Hayes, along

with several voters from their respective African-American

majority districts (the ‘‘Collins” plaintiffs or group), filed

a fourth action that was also consolidated with the Hastert

and Nieves cases. Finally, the Chicago Urban League, rep-

resenting the interests of voters in the existing African-

American majority congressional districts (the “Chicago

App. 7

Urban League”’ plaintiffs or group), filed its own suit on

August 29, 1991. This too was consolidated with the others.?

The district court issued its decision on the merits on

November 6, 1991, enjoining the Board from using the

existing congressional district plan and ordering it to put

into effect the plan proposed by the Hastert plaintiffs.

Hastert v. State Board of Elections, 777 F. Supp. 634

(N.D. Ill. 1991). In the final sentence of its opinion, the

district court ordered that “all parties to these consoli-

dated cases bear their own costs.” 777 F. Supp. at 662. On

November 14, 1991, the Hastert, Nieves, Chicago Urban

League and Scott groups moved the district court to alter

or amend its judgment to award them costs as prevailing

parties. They also filed a petition for an award of their re-

spective attorneys’ fees pursuant to 42 U.S.C. §§ 1973(e)

and 1988. On November 21, 1991, the Collins plaintiffs

moved the court for leave to file a petition for attorneys’

fees. Also on November 21, the Rosebrook plaintiffs filed

a Rule 5{e) motion to alter or amend the judgment.4 While

this motion was still pending, the Rosebrook plaintiffs filed,

on December 24, 1991, a motion for leave to file a peti-

tion for attorneys’ fees and expenses.

The district court denied the Rosebrook plaintiffs’ Rule

59%e) motion on December 27, 1991, and on January 7,

1992, the court denied as untimely their motion for leave

to file a petition for fees. On January 13 the Rosebrook

3 Several individuals and organizations were permitted to inter-

vene in the consolidated action, including Johnny Scott and Ben

Howard (the “Scott” plaintiffs or group), acting individually and

as representatives of local chapters of the National Association for

the Advancement of Colored People.

* The Rosebrook plaintiffs asked the court to amend its judgment

to state that the Hispanic majority district proposed by the Hastert

plaintiffs, and later adopted by the court, was substantially similar

to the Hispanic majority district proposed by the Rosebrook plain-

tiffs. The apparent purpose of this motion was to buttress the

Rosebrook plaintiffs’ claim that they were prevailing parties and

thus entitled to attorneys’ fees.

App. 8

group moved the court to reconsider its denial of their fee

motion. On January 17, 1992, the district court issued a

memorandum opinion denying the Hastert, Nieves, Collins,

Chicago Urban League and Scott groups’ motions for costs

and attorneys’ fees. Hastert v. State Board of Elections,

794 F. Supp. 255 (N.D. Ill. 1992). In the same opinion,

the court ordered that the cost of publishing notices of

the action in newspapers throughout the state be divided

equally among the Hastert, Nieves, Rosebrook and Collins

groups. 794 F. Supp. at 261. Four days later, on January

21, the court denied as moot the Rosebrook plaintiffs’ Jan-

uary 13 motion for reconsideration.

On January 28, the Nieves plaintiffs moved the district

court to reconsider its January 17 decision denying attor-

neys’ fees. The Hastert plaintiffs filed an identical motion

on January 29. On January 31, the Collins plaintiffs moved

the court to reconsider its denial of attorneys’ fees and

its allocation of the costs of publishing notice. The district

court has never ruled on these motions. Several plaintiff

groups next sought to vest jurisdiction in this court. The

Scott plaintiffs on February 13, the Hastert and Nieves

plaintiffs on February 14, and the Chicago Urban League

group on February 18, filed notices of appeal with respect

to the district court’s January 17 decision denying attor-

neys’ fees. Also on February 18, the Rosebrook plaintiffs

filed a notice of appeal with respect to the district court’s

November 6, 1991 judgment; the December 27 order deny-

ing their motion to alter or amend that judgment; the Jan-

uary 7, 1992 order denying their motion for leave to file

a petition for fees; the January 17 opinion and the January

21 order denying their motion to reconsider. The Collins

plaintiffs had not filed a notice of appeal by the time these

cases were set for argument on appeal.5

5 On February 27, 1992, the Collins plaintiffs moved the district

court to rule on its motion for reconsideration of the denial of fees.

The court has yet to dispose of this motion.

App. 9

We have jurisdiction here, if at all, pursuant to 28 U.S.C.

§ 1291, which vests in the courts of appeals jurisdiction

over “all final decisions of the district courts of the United

States.” As an initial matter, we note that we do not have

jurisdiction over the merits of this case because such ap-

peals must be made directly to the United States Supreme

Court. See 28 U.S.C. § 1253 (‘{A]ny party may appeal to

the Supreme Court from an order [pertaining to an] in-

junction in any ... action .. . required .. . to be heard

and determined by a district court of three judges’’) and

28 U.S.C. § 1291 (courts of appeals have jurisdiction of

appeals from final decisions of the district courts “except

where direct review may be had in the Supreme Court’’).®

Appeal from the district court’s denial of attorneys’ fees,

however, is properly made to this court. See Supreme Court

of Virginia v. Consumers Union, 446 U.S. 719, 737 n.16

(1980) (Supreme Court does not have jurisdiction under

§ 1253 if only attorneys’ fees questions are appealed). It

thus follows that awards of attorneys’ fees are appealable

independent of the merits and constitute separate judg-

ments for purposes of § 1291. People Who Care v. Rock- |

ford Board of Education District No. 205, 921 F.2d 132,

134, 135 (7th Cir. 1991). But such fee awards, or in this

case denials, must be final in order to trigger our § 1291

jurisdiction.

The district court’s November 6 opinion was unquestion-

ably a final decision on the merits. But there is a consid-

erable question whether it said anything, final or other-

wise, about attorneys’ fees. The only pronouncement of

the district court in its November 6 opinion that might

be construed to reach the attorneys’ fees issue is its final

sentence: “{PJarties to these consolidated cases shall bear

their own costs.” 777 F. Supp. at 662. Sections 1973/(e)

and 1988 provide that “prevailing parties” in actions to

® Accordingly, the Rosebrook plaintiffs’ notice of appeal is inef-

fective to the extent it seeks review of the merits of the district

court’s redistricting decision.

App. 10

enforce constitutional voting guarantees and certain pro-

visions of the civil rights laws are entitled to ‘‘a reason-

able attorney’s fee as part of the costs.” Thus, there is no

logical impediment to concluding that the district court’s

November 6 decision resolved, albeit swb silentio, the par-

ties’ entitlement to attorneys’ fees. However, we are not

entirely convinced that this is a correct view, and we are

quite certain that the language of the district court, if

intended to deal with attorneys’ fees (in addition to routine

court costs), was ill-chosen. Indeed, it would not be irra-

tional to conclude that the district court’s order had noth-

ing to do with attorneys’ fees.

Federal! Rule of Civil Procedure 54(d) provides that ‘‘costs

shall be allowed as of course to the prevailing party unless

the court otherwise directs.’”’ The Supreme Court has in-

structed that 28 U.S.C. § 1920 defines the term “‘costs’”’

as it is used in Rule 54(d). Crawford Fitting Co. v. J.T.

Gibbons, Inc., 482 U.S. 487, 441 (1987). Section 1920 au-

thorizes the taxation of certain rather routine litigation

expenses, including clerk, marshal and court reporter fees,

“as costs.”” Although Rule 54(d) creates a presumption

that the prevailing party will recover these costs, the deci-

sion to make the award of costs is entrusted to the sound

discretion of the district court. Soler v. Waite, 989 F.2d

251, 254-55 (7th Cir. 1993). As a result, district courts rou-

tinely direct that prevailing parties are not entitled to

Rule 54(d) costs through concise orders, frequently no longer

than a single sentence. See, e.g., Tolle v. Carroll Touch,

Inc., 813 F. Supp. 1368 (C.D. Ill. 1993); Harlan E. Moore

Charitable Trust v. United States, 812 F. Supp. 1389 (C.D.

Ill. 1993); Nalco Chemical Co. v. Hydro Technologies, Inc.,

809 F. Supp. 672 (E.D. Wis. 1992); Ridgefield Park Trans-

portation v. Uhl, 803 F. Supp. 1467 (S.D. Ill. 1992). The

district court’s November 6 “‘tag line” that the parties to

this litigation were to “bear their own costs” is arguably

an adequate exercise of its discretion to deny Rule 54(d)

a

App. 11

costs, as that term is defined by 28 U.S.C. § 1920.7 But

attorneys’ fees would seem to be “costs” of a different

sort.

Before the Supreme Court decided Alyeska Pipeline

Service Co. v. Wilderness Society, 421 U.S. 240 (1975),

many federal courts believed that they had the power in

certain cases, contrary to the so-called “American” rule

that parties are to bear their own costs of legal represen-

tation, to award attorneys’ fees to prevailing parties as

a component of Rule 54(d) costs. In Alyeska, however,

the Court disapproved this practice and held that federal

courts may order the losing party to pay the winner’s

attorneys’ fees only if Congress has authorized such fee

awards by statute. Id. at 263-64. There is no dispute that

sections 1973/(e) and 1988 are statutes of this type nor,

as a result, is there any question that the district court

had the power to decide which parties to the present liti-

gation, if any, were entitled to attorneys’ fees. There is

legitimate room for doubt, however, that the district court

exercised this power on November 6.

It is true that even after Alyeska we continued to treat

requests for attorneys’ fees under section 1988 as motions

for costs governed by Rule 54(d). See Hairline Creations,

Inc. v. Kefalas, 664 F.2d 652, 659 (7th Cir. 1981) and Bond

v. Stanton, 630 F.2d 1231, 1234 (7th Cir. 1980), cert. de-

nied sub nom. Blinzinger v. Bond, 454 U.S. 1063 (1981).

But this is the only similarity section 1988 attorneys’ fees

have to Rule 54(d) costs. While district courts have broad

discretion to award or deny Rule 54(d) costs, their “discre-

tion to deny a fee award [under section 1988] to a prevail-

ing party is narrow.” New York Gaslight Club, Inc. v.

Carey, 447 U.S. 54, 68 (1980). Indeed, we have held that

prevailing civil rights plaintiffs are entitled to their attor-

neys’ fees “as a matter of course.” Entertainment Con-

7 Hereafter, when we use the phrases “Rule 54(d) costs” or “rou-

tine Rule 54(d) costs” we will be referring to the set of costs de-

scribed by 28 U.S.C. § 1920.

App. 12

cepts, Inc. III v. Maciejewski, 631 F.2d 497, 506 (7th Cir.

1980), cert. denied, 450 U.S. 919 (1981). See also Dawson

v. Pastrick, 600 F.2d 70, 79 (7th Cir. 1979). Although a

district court may be able to dispose of routine Rule 54(d)

costs with a single, off-hand line at the end of a lengthy

decision on the merits, a denial of section 1988 attorneys’

fees would seem to require more deliberation and an ex-

plicit disposition.

Admittedly, we cannot know with any degree of certain-

ty whether the district court here considered the attor-

neys’ fee issue before issuing its November 6 opinion. We

note, however, that the district court’s January 17 decision

on this issue occupies five pages in the Federal Supple-

ment. There is something troubling about disposing of a

matter with a single line (and with no explicit reference

to fees) that later requires resolution by a thorough writ-

ten opinion. Moreover, we have found nothing in the rec-

ord to suggest that the parties put the fees issue properly

before the district court until they filed their petitions

for fees at various times after November 6. Nevertheless,

the district court stated its view that it had indeed ad-

dressed the question of attorneys’ fees in its November 6

opinion. 794 F. Supp. at 258. The district court is in the

best position to interpret its own orders, and we will not

disturb such an interpretation absent a clear abuse of dis-

cretion. In the Matter of Chicago, Rock Island & Pacific

R.R., 865 F.2d 807, 810 (7th Cir. 1988). Therefore, although

the form of the November 6 opinion creates puzzling am-

biguities and procedural difficulties and may be misleading

to litigants, the district court’s interpretation of this opin-

ion is not a clear abuse of discretion.

Characterizing the November 6 opinion as a final deci-

sion both on the merits and as an award of attorneys’

fees has important jurisdictional consequences. Specifically,

if the parties wished to challenge such a denial of attor-

neys’ fees they had only two choices. They could appeal

the decision within thirty days, Fed. R. App. P. 4(aX1),

or they could toll the time for appeal by filing a Rule 5%e)

App. 13

motion to alter or amend judgment within ten days, ex-

clusive of weekends and holidays. None of the parties in

the first instance chose to appeal the November 6 order

insofar as it pertained to attorneys’ fees. The Hastert,

Nieves, Chicago Urban League and Scott groups, how-

ever, did file a timely Rule 59(e) motion on November

14.8 The district court denied this motion on January 17.

The thirty day period for filing an appeal therefore ran

from January 17, and expired (computing time as Fed.

R. App. P. 26(a) requires) on February 18. The Hastert,

Nieves, Scott and Chicago Urban League notices of appeal

were therefore all timely filed. We thus have jurisdiction

over their appeals.

But unlike the other plaintiffs, the Rosebrook plaintiffs

did not themselves appeal the November 6 order within

30 days or file an appeal-delaying Rule 5%e) motion within

ten days. But their notice of appeal was nonetheless time-

8 Actually, these groups filed a motion to alter or amend judg-

ment and a petition for attorneys’ fees pursuant to section 19838.

Ordinarily, such a petition for attorneys’ fees would not be a proper

Rule 5Xe) motion. White v. New Hampshire Dep’t of Employment

Sec., 455 U.S. 445, 451 (1982). But because we have adopted the

district court’s view that it considered and denied attorneys’ fees

in its November 6 opinion, the later petition for such fees must

be construed as a Rule 5%e) motion. Under our cases, all substan-

tive motions served within ten days of the entry of judgment are

treated as filed under Rule 5%e). Charles v. Daley, 799 F.2d 343,

347 (7th Cir. 1986). The petition for attorneys’ fees was filed within

ten days of the November 6 entry of judgment and it was substan-

tive in the sense that it asked the district court to reverse its

earlier denial of fees.

® In addition to appealing to this court, the Hastert and Nieves

plaintiffs also moved the district court to reconsider its January

17 decision. Since the district court has not resolved these motions,

one might think that their appeals are premature. But successive

requests to alter or amend judgment, which are all these motions

amount to, do not toll the time for appeal, United States Equal

Employment Opportunity Comm’n. v. Gurnee Inns, Inc., 956 F.2d

146, 148 (7th Cir. 1992), nor do they affect the finality of the judg-

ment. Charles v. Daley, 799 F.2d 343, 347 (7th Cir. 1986).

App. 14

ly filed since Fed. R. App. P. 4(aX4) says that if a “timely

motion under the Federal Rules of Civil Procedure is filed

in the district court by any party ... under Rule 59 to

alter or amend the judgment .. . , the time for appeal

for all parties shall run from the entry of the order de-

nying . . . such motion” (emphasis added). The effect of

Rule 4(aX4) is to allow a party who neither moves the

district court to amend its judgment nor appeals in a time-

ly fashion to bootstrap onto another party’s timely filed

notice of appeal. Because the Rosebrook plaintiffs filed

their notice of appeal on February 18, we have jurisdic-

tion over their appeal from the November 6 order. And

this is true despite the fact the Rosebrook plaintiffs’ own

Rule 59(e) motion to amend the judgment—filed after the

ten day period for such motions had run—was properly

denied as untimely.

II.

Thus having ascertained our jurisdiction, we now turn

to the merits. Under 42 U.S.C. § 1978l(e), a court “‘in its

discretion, may allow the prevailing party a reasonable

attorney’s fee’’ in an action, such as this one, “‘to enforce

the voting guarantees of the fourteenth or fifteenth amend-

ments.” Pursuant to 42 U.S.C. § 1988, a court may make

a similar award of fees to a “prevailing party” in a suit to

enforce the provisions of 42 U.S.C. § 1983.1° Although the

statutes commit fee awards to the district court’s discre-

tion, Congress has nevertheless made clear that prevailing

plaintiffs “should ordinarily recover an attorney’s fee unless

special circumstances would render such an award unjust.”

S. Rep. 925, 94th Cong., lst Sess. 40 (1975), reprinted

in 1975 U.S.C.C.A.N. 774, 807 (addressing § 1973l(e)); S.

Rep. 1011, 94th Cong., 2d Sess. 4 (1976), reprinted in 1976

U.S.C.C.A.N. 5908, 5912 (addressing § 1988). In any event,

10 Because §§ 1973/(e) and 1988 contain nearly identical language

and are driven by similar congressional purposes, we construe them

similarly. Cf. Hensley v. Eckerhart, 461 U.S. 424, 433 n.7 (1983).

Ee

App. 15

our analysis begins by determining which parties, if any,

prevailed.

This is not ordinary litigation. Most notably, the under-

lying controversy in this case, i.e., the fight over the con-

figuration of Illinois’ new congressional districts, was not

between the plaintiffs and the defendant. The State Board

of Elections is truly a nominal defendant, completely dis-

interested in the outcome of that fight. The real dispute

was among the various plaintiffs. Each had a plan to offer

and the winner, at least from a lay person’s perspective,

is the litigant whose plan and objectives (usually incor-

porated in its map) the district court adopted. Convenient-

ly, this common-sense understanding of winners and losers

coincides in large part with the Supreme Court’s definition

of “prevailing party.”

A party prevails, within the meaning of the fee-shifting

statutes, “if [it] succeeds on any significant issue in litiga-

tion which achieves some of the benefit the parties sought

in bringing suit.”” Hensley v. Eckerhart, 461 U.S. 424, 433

(1983). We agree with the district court, that “the prin-

cipal issue in litigation during these proceedings involved

the determination of which proposed [congressional dis-

tricting] plan for the entire State of Illinois best met con-

stitutional and statutory criteria.” 794 F. Supp. at 259. On

this score, the Hastert group is the clear winner, as the

district court ultimately adopted its plan.

We also agree with the district court’s conclusion that

the Nieves plaintiffs prevailed. The Nieves plaintiffs brought

suit on behalf of African-American and Hispanic voters,

and sought the adoption of a map that created Illinois’

first ever Hispanic majority congressional district. This

was achieved without diluting the strength of the three

existing African-American majority districts that were es-

tablished in the 1981 redistricting. The Nieves group was

thus, as we have noted, made up of two sub-groups, de-

scribed throughout the litigation as the ‘African-American

Nieves” and “Hispanic Nieves” plaintiffs. These two groups

were at times represented separately before the district

App. 16

court and sometimes took differing positions. But the two

sub-groups acted in concert in petitioning for attorneys’

fees, and the district court did not distinguish between

them in declaring that ‘the Nieves group” prevailed. In

support of its conclusion, the district court cited the fact

that the Nieves plaintiffs played an instrumental role in

the creation of the Hispanic super-majority district, as

well as the fact that they “formally adopted” the prevail-

ing Hastert map. 794 F. Supp. at 260. We agree with the

district court’s conclusion that the Nieves group should

be considered a “prevailing party” in this litigation, pri-

marily because its fundamental objective, the creation of

an Hispanic district, was achieved by the litigation.

The district court also concluded that the Scott and Chi-

cago Urban League plaintiffs did not prevail. Jd. at 259-60.

Of course, we owe these decisions substantial deference.

Shepard v. Sullivan, 898 F.2d 1267, 1271 (7th Cir. 1990).

In fact, the district court’s determination must stand if

any reasonable person could agree with it. See Washington

v. Sherwin Real Estate Inc., 694 F.2d 1081, 1087 (7th Cir.

1982).41 But when a district court overlooks, either inten-

tionally or inadvertently, relevant, binding precedent, its

decision cannot stand. In defining “prevailing party,” the

district court relied exclusively upon Hensley v. Eckerhart,

461 U.S. 424 (1983). Although Hensley is a central case

interpreting the fee-shifting statutes, the Supreme Court

has provided additional guidance. In particular, the Court

in Texas State Teachers Association v. Garland Indepen-

dent School District, 489 U.S. 782, 790 (1989), rejected

the so-called “central issue” test that several lower courts

had adopted following Hensley. Under that test, a party

was deemed to have prevailed only if he ‘“‘prevailed on

11 Apart from its own possible inadequacies, this panel has had

difficulty reaching final conclusions on some of the issues presented

because (1) the district court offered few reasons for its results

and (2) the. parties did not initially spell out their arguments in

the detail which they furnished at the rehearing stage. We have

had to spend many hours searching for clues in the record.

App. 17

the central issue by acquiring the primary relief sought.”’

Id. at 787 (citation omitted). In rejecting this formulation,

the Court concluded that the degree of a plaintiff’s success

in relation to the other goals of the lawsuit was relevant

only to the determination of the size of a reasonable fee,

“not to eligibility for a fee award at all.’”’ Jd. at 790. The

court reiterated that success on any significant issue in

litigation conferred prevailing party status. Jd. at 791 (em-

phasis supplied).

The district court noted that the Scott plaintiffs inter-

vened “‘for the limited purpose of addressing the config-

uration of a relatively small geographic area in the vicinity

of East St. Louis, Illinois, contained in one of the pre-

trial Hastert plans.” 794 F. Supp. at 259. The court went

on to conclude that

[p]laced in the context of arduous . . . proceedings

conducted to review only redistricting plans for the

entire state, the Scott [plaintiffs’] fleeting presence

to address their concerns regarding a tiny fraction

of the state, their neutral stance regarding the merits

of the principal issue to be litigated and their absence

from the trial proceedings compel the conclusion that

they do not constitute a statutory prevailing party

Id. (internal quotation marks omitted). Certainly, the dis-

trict court is correct that, in terms of the entire redis- -

tricting process, the Scott plaintiffs’ claims were not par-

ticularly expansive. Under the “central issue” test, they

perhaps would not be entitled to fees. But the Supreme

Court has rejected that analysis. We find that the con-

figuration of any of Illinois’ 20 congressional districts was

a significant issue in the litigation, and, after Garland,

success on any such issue is enough to trigger an award of

fees. Under this standard, the Scott plaintiffs undoubtedly

prevailed. They urged that the congressional districts en-

compassing East St. Louis be configured in a particular

way. They convinced the Hastert group to incorporate

their proposed configuration into the Hastert master plan.

App. 18

When the district court adopted the Hastert plan, the Scott

group accomplished everything it set out to achieve.!?

Thus, they too prevailed.

The result with respect to the Urban League plaintiffs

is much less clear. In finding that the League plaintiffs did

not prevail, the district court observed that these plain-

tiffs, like the Scott plaintiffs, focused their attention on

a small portion of the state, in this case the four minor-

ity districts in Chicago. It further noted that while the

Urban League plaintiffs’ proposed map “closely tracked

the Hastert configuration of the minority districts,”’ they

nonetheless “chose to proceed on the basis of their own

separate map.” 794 F. Supp. at 260.

As we noted in our discussion of the Scott plaintiffs,

the fact that the Urban League group focused its atten-

tion on only a small part of the state does not preclude

it from being declared a “prevailing party,” see Hensley,

461 U.S. 424. According to the district court’s analysis,

whether the Urban League plaintiffs prevailed, then, turns

on the determination that they proceeded on the basis of

their own separate map, rather than adopting the Hastert

map.

The Chicago Urban League group entered the litigation

in order to assure that—in the context of creating an His-

panic majority district—the strength of the three African-

American majority districts not be diluted. This was the

League group’s purpose and, if they achieved it, they pre-

vailed. In first bringing suit, they submitted a proposed

map for these four districts (one Hispanic and three Afri-

can-American). But as the litigation progressed the dif-

12 It is of no consequence that the Scott group achieved its goals

without litigating to the bitter end. Indeed, the Supreme Court

has held that a party who achieves success by settling is entitled

to attorney’s fees. Maher v. Gagne, 448 U.S. 122, 129 (1980). All

that is important is for the party to obtain the “‘substance of what

[it] sought.” Hewitt v. Helms, 482 U.S. 755, 761 (1987). The Scott

plaintiffs undeniably did so.

App. 19

ferences among the various parties’ positions narrowed. In

fact, before trial it became clear that both of the proposed

state-wide maps (the ones proposed by the Rosebrook and

Hastert groups), called for the creation of an Hispanic ma-

jority district. The Hispanic Nieves plaintiffs, their goal

achieved, essentially dropped out of the litigation, and the

African-American Nieves plaintiffs joined forces with the

Urban League group. Thus, at a pre-trial hearing on Octo-

ber 3, 1991, an attorney for the African-American Nieves

plaintiffs said that “the Nieves African-American plaintiffs

and the Urban League are, have taken identical positions,”

and noted that “those two parties would merge into one”

at trial. Later in that same pre-trial hearing, an attor-

ney for the Urban League plaintiffs noted that they were

negotiating with the Hastert group, and that if those ne-

gotiations proved successful, they might, at trial, “formally

request that they adopt the Hastert amended map.”

While no such motion was made during the trial, the ne-

gotiations continued, and on October 15, 1991, the Hastert

plaintiffs filed with the court their third amended redis-

tricting plan. That plan incorporated changes worked out

with the African-American Nieves and Urban League plain-

tiffs. Following the trial, the African-American Nieves and

Urban League plaintiffs filed a joint post-trial brief, and

in it they called on the court to adopt the third amended

Hastert map. The court ultimately did so. 777 F. Supp.

at 662.

The substance of the debate at this point focused on

the identity of the congressional district in which to locate

Chicago’s Second Ward. The Second Ward had historical-

ly been part of the First Congressional District, but the

Rosebrook map would have moved it into the neighboring

Seventh District. The Hastert map, however, left the Sec-

ond Ward in the First District. In adopting the Hastert

map, the position urged by the Urban League group—that

Chicago’s Second Ward remain part of the First Congres-

sional District—prevailed.'%

13° Hon. Bobby Rush, alderman from the Second Ward, was in

1992 elected to Congress to represent the First District.

App. 20

The failure of the Urban League plaintiffs formally to

move the court to adopt the Hastert map, as their lawyer

suggested in a pre-trial conference that they might, could

conceivably constitute grounds for concluding that they

did not adopt the Hastert map and therefore that they

did not prevail. While the district court did not explain

the basis of its determination, perhaps it relied on the

failure of the Urban League plaintiffs to make such a mo-

tion in concluding that they proceeded ‘‘on the basis of

their own separate map.” 794 F. Supp. at 260. But such

a conclusion strikes us as exceedingly formalistic, and is

difficult to reconcile with the district court’s conclusion

that the Nieves plaintiffs—whose position merged with that

of the Urban League group—did adopt the Hastert map.

The issue before us is whether the district court abused

its discretion in finding that the Nieves plaintiffs prevailed

while the Urban League plaintiffs did not. We must bear

clearly in mind that there can be no abuse of discretion if

any rational person could agree with the conclusion of the

district court. Admittedly, the task of the Nieves plain-

tiffs in achieving prevailing party status is easier since

their predominant goai was to devise a district with an

Hispanic voting majority. This is a clear goal that was

clearly achieved. The Urban League plaintiffs, on the other

hand, had the more complicated goal of achieving the His-

panic district while protecting against diluting the three

pre-existing African-American districts. As the process un-

folded, the League plaintiffs (in alliance with the African-

American Nieves plaintiffs) also argued for the inclusion of

the Second Ward (where Bobby Rush—a potential congres-

sional candidate—was a resident!4) in the First Congres-

sional District. The Hayes-Collins group wanted to move

the Second Ward (and Rush) into the Seventh District.

14 While the Constitution requires only that a representative be

an “Inhabitant of that State in which he shall be chosen,” U.S.

Const., Art. I, § 2, candidates who reside in the district they are

seeking to represent surely have an electoral advantage over those

who live in other districts.

App. 21

The League plaintiffs thus “prevailed” as to the creation

of the Hispanic district, the preservation of three African-

American districts and retention of the Second Ward in

the First District. As noted, however, the Urban League

plaintiffs did not move formally to themselves adopt the

Hastert map, although they did call on the district court

to adopt that map. This is surely an extraordinarily fine

distinction, almost irrelevant to the substance of the re-

districting process. The question is whether it is a distinc-

tion that might recommend itself to at least one rational

decision-maker. After much thought we believe this dis-

tinction cannot pass even that test. We think therefore

that the Urban League must also be considered a prevail-

ing party.

That leaves the appeal by the Rosebrook plaintiffs. Be-

cause the Rosebrook plaintiffs did not timely petition the

district court to reconsider its November 6 order, we do

not have the benefit of the district court’s determination

whether they were a prevailing party.15 But we neverthe-

less affirm the district court’s November 6 order denying

them fees, because we consider it entirely clear that they

are not prevailing parties. In the end, the district court

was faced with a choice between two maps, one put for-

ward by the Hastert group (favoring Republicans) and an-

other put forward by the Rosebrook plaintiffs (favoring

Democrats). In its November 6 order, the court found that

the Hastert map better satisfied the constitutional and

statutory criteria, and thus adopted the Hastert plan. The

Rosebrook group now argues that it was a substantial fac-

tor in eradicating conduct that violates the Voting Rights

15 We know only that when the Rosebrook plaintiffs moved the

district court to reconsider its December 27 decision to deny their

Rule 5&e) motion for reconsideration as untimely filed, the district

court denied the motion as moot, in light of its January 17 order.

But we do not know for certain whether the district court con-

sidered the motion moot because, in its view, the Rosebrook plain-

tiffs did not prevail, or rather because it held in its January 17

order that even the prevailing parties were not entitled to attor-

neys’ fees.

App. 22

Act. See Maloney v. City of Marietta, 822 F.2d 1023 (11th

Cir. 1987). But redistricting cases like this one are unlike

ordinary voting rights cases. As we have noted, in the

redistricting context the touchstone for whether a party

“prevails” is simply whether that party’s map (or the map

the party ultimately embraces) is ultimately adopted. We

thus have relatively little difficulty concluding that the

Rosebrook plaintiffs are not prevailing parties, and thus

not entitled to attorneys’ fees.

In sum, we agree with the district court that the Hastert

and Nieves groups did prevail. But we disagree with its

conclusions regarding the Scott group and the Urban League

group. And we find that they too, were prevailing parties.

As a result, the Hastert, Nieves, ‘Scott and Urban League

groups are prima facie entitled to fees. The Rosebrook

plaintiffs, who did not prevail, are not entitled to fees.

Il.

Our analysis does not end here, however, since the dis-

trict court went on to find that the existence of “‘special

circumstances” precluded an award of fees even to prevail-

ing parties. Although the fee shifting statutes commit fee

awards to a district court’s discretion, such discretion is,

as previously noted, quite narrow once prevailing party

status has been determined. See, e.g., New York Gaslight

Club, Inc. v. Carey, 447 U.S. 54, 68 (1980). And we find

that the reasons given by the district court for denying

fees to prevailing parties in this case are inadequate.

The district court stated that ‘Congress’ primary pur-

pose in providing attorney’s fees in civil rights litigation

. . . was ‘to eliminate financial barriers to the vindication

of constitutional rights ... .” 794 F. Supp. at 260 (quoting

Seattle School District v. Washington, 633 F.2d 1338, 1348

(9th Cir. 1980), aff'd, 458 U.S. 457 (1982)). The court went

on to note that the plaintiffs in this case “do not appear to

be drawn from the ranks of the disempowered and finan-

cially disadvantaged citizenry that Congress had in mind

when enacting [fee-shifting statutes].”’ Jd. The district court

is wrong on this point for two reasons. First, despite the

App. 23

fact that certain of the plaintiffs in this matter were elected

officials, there is no evidence that they were particularly

wealthy. Second, and more importantly, the Supreme Court

has consistently held that a plaintiff’s ability to pay for

legal representation is not a special circumstance justify-

ing denial of attorneys’ fees. See, e.g., Venegas v. Mitchell,

495 U.S. 82, 87-88 (1990); Blanchard v. Bergeron, 489 U.S.

87, 94 (1989).

The district court also asserted that an award of fees

would be unjust because “the plaintiffs merely shifted the

legislative lobbying process that typically attends congres-

sional redistricting to a federal judicial arena.” 794 F.

Supp. at 261. This might be true, but it is hardly a reason

to deny attorneys’ fees. It is surely regrettable that the

Illinois General Assembly was unable to enact a new con-

gressional district scheme and that the taxpayers of the

State of Illinois must now pay for their dereliction. But

such is the case whenever the political branches of govern-

ment fail to vindicate important rights and the affected

parties must seek a judicial hearing. There can be no doubt,

moreover, that fee awards may issue against state and

local governments. Hutto v. Finney, 437 U.S. 678, 694

(1978). Thus, the State Board of Elections, as an agency

of the state, may properly be held accountable for the

prevailing parties’ attorneys’ fees.1®

In reviewing these thorny fees matters in this redistrict-

ing case, we recognize the perhaps peculiar circumstances

of redistricting cases generally. Here, all of the plaintiffs

“contributed” to the final result in the sense that, by tak-

ing positions that were more or less, in whole or in part,

“incorporated” into the accepted map, all parties arguably

'6 It is of no consequence that the State Board of Elections played

no active role in the proceedings and agreed to enforce whatever

plan the district court adopted, since fees may be taxed even against

entities whose role is limited to enforcement of regulations they

played no role in promulgating. Crosby v. Bowling, 683 F.2d 1068,

1073 (7th Cir. 1982). Nor is the Board’s putative “good faith” a

special circumstance justifying a refusal to award fees. Lampher

v. Zagel, 755 F.2d 99, 104 (7th Cir. 1985).

App. 24

helped move the process forward toward its eventual culmi-

nation. On the other hand, there may be greater or lesser,

formal or substantial, differences between the maps of the

“winners” and the maps of the “losers.” The Hastert,

Nieves, Scott and Urban League plaintiffs have been de-

clared the winners because exactly what they advocated

has been accepted.

The State Board of Elections, the nominal defendant,

has no interest in the eventual outcome except that there

be an outcome which it can implement. Yet the State

Board may be held liable for fees to the prevailing par-

ties, whose status as such depends upon the relative suc-

cess of their position in relation to the success of the other

plaintiffs. These configurations of claim to liability and of

success to failure are essentially unique to redistricting

cases. In such cases, liability is usually imposed on a neu-

tral (and nominal) defendant, and successful fees claims

are awarded to the relatively successful plaintiffs. In this

case, we are attempting to apply principles developed in

a wide range of civil rights cases to the sui generis cate-

gory of redistricting cases. As might be expected, these

principles do not provide a close fit to this subject mat-

ter. It might be appropriate and helpful, by statute or

otherwise, to develop a set of rules specifically govern-

ing attorneys’ fees in redistricting cases, but that is not

our task here.

For the foregoing reasons, we REVERSE the judgment

of the district court insofar as it held that the Scott group

and the Urban League group are not prevailing parties, and

AFFIRM the district court’s judgment that the Hastert and

Nieves plaintiffs are prevailing parties. We also REVERSE

the district court’s determination that special circumstances

exist so as to preclude the award of attorneys’ fees to

prevailing parties, and AFFIRM the court’s determination

that the Rosebrook group is not entitled to attorneys’ fees.

Finally, we REMAND the case with instructions to award

reasonable attorneys’ fees to the prevailing parties.

AFFIRMED IN PART, REVERSED IN PART

AND REMANDED WITH INSTRUCTIONS

App. 25

CoFFEY, Circuit Judge, dissenting. As I discuss infra at

27-29, I reiterate my previous objections filed in the original

panel opinion. See Hastert v. State Bourd of Elections,

Nos. 92-1397 et al., slip op. at 21-24 (7th Cir. Dec. 17, 1993)

(Coffey, J., dissenting). Additionally, I agree with the major-

ity’s determination in its amended opinion that the Rose-

brook plaintiffs are not prevailing parties. In litigation of

this nature, the various plaintiff's groups are competing

against each other and in this case the court determined

that the Hastert plan prevailed over the Rosebrook plan.

Based on the lower court’s selection of the Hastert plan, the

Rosebrook plaintiffs cannot be viewed as prevailing parties.

As an initial matter, I agree with the majority that the

November 6, 1991 district court opinion disposed of the

attorneys’ fees with the phrase “all parties to these con-

solidated cases bear their own costs.” Hastert v. State Bd.

of Elections, 777 F. Supp. 634, 662 (N.D. Ill. 1991) (Hastert

I). I fail to understand the need for the majority’s exten-

sive criticism of the district court in regard to the attor-

neys’ fees. In the lower court’s subsequent opinion, Hastert

v. Board of Elections, 794 F. Supp. 255 (N.D. Ill. 1992)

(Hastert IT), it treated the phrase “all parties to these

consolidated cases bear their own costs” as resolving the

attorneys’ fees question. The three-judge district court

was obviously in the best position to know whether it in-

tended to deny attorneys’ fees. Rather than criticizing the

court for its holding, we should accept the lower court’s

interpretation of its own order and proceed to the merits

of the instant appeal.

Secondly, I disagree with the majority’s determination

in the amended opinion to add the Chicago Urban League

as a prevailing party.1 The majority holds that the Urban

' In the original opinion, the majority ruled that the Urban League

was not a prevailing party because “the Chicago Urban League

plaintiffs insisted on their own map. They did not get it. On an

issue like this, where either result would have been sustainable,

the district court is in the best position to determine whether fees

are appropriate. Here the district court did not abuse its discre-

tion.”” Hastert, slip op. at 16-17 (7th Cir. Dec. 17, 1993).

App. 26

League prevailed because (1) the League indicated prior

to trial that it might adopt the Hastert plan, and (2) the

League’s goals (a Hispanic majority district and three Afri-

can-American majority districts) were achieved through

the Hastert-_plan. The district court ruled that the Urban

League had not prevailed since it failed to adopt the Hastert

plan and instead proceeded on its own separate map; the

League’s attorneys never followed through on the represen-

tation that they might “formally request that [the League]

adopt the Hastert amended map.” The majority originally

agreed with the trial court but in the amended opinion

changes course and reasons that such a distinction is too

formalistic. I disagree. Rather than being formalistic, the

district court properly refused to reward a plaintiff who

was hedging its bets. Counsel for the Urban League was

attempting to play both sides against the middle and ac-

complish the League’s goals without committing to a posi-

tion. By indicating before trial that it was contemplating

adoption of the Hastert plan, but then never formally adopt-

ing that plan, the Urban League was able to reap the

benefit of being ‘‘on board”’ the Hastert plan but if the

district court ultimately adopted the Rosebrook plan, the

Urban League attorneys had positioned themselves to pre-

sent another argument that it prevailed based in part on

the fact that it had never adopted the Hastert plan. A

court of appeals should not fall prey to trial tactics of this

nature.

The lower court ruled that the Urban League did not

prevail and who is in a better position than the trial court

to make that determination? I am unwilling to hold that

the trial court abused its discretion on this matter, more-

over, I am unaware of any case law warranting the reversal

of the district court for “/a] decision on a fee award is

left to the discretion of the district court in light of its

superior understanding of the litigation and the desiradil-

ity of avoiding frequent appellate review of what essen-

tially are factual matters. . . . A district court does not

abuse its discretion . . . if reasonable persons could differ

over the view it adopts.’”’ McNabola v. Chicago Transit

App. 27

Authority, 10 F.3d 501, 518 (7th Cir. 1993) (citations and

quotation marks omitted) (emphasis added). As far as I

know, McNabola is the law of the Seventh Circuit. The

fact that the majority has changed its mind (from the first

to the second opinion) about whether the Urban League

prevailed is certainly evidence that “reasonable persons

could differ” and mandates that the trial court did not

abuse its discretion. Id. An appellate court should be ex-

tremely reluctant to hold that the knowledgeable and ex-

perienced members of the three-judge panel abused their

discretion. Moreover, simply because the Nieves plaintiffs,

who did prevail, had some goals in common with the League

(creation of Hispanic majority district), does not warrant

the conclusion that the League also prevailed. In this in-

stance, the trial court made findings on the very same

_ factual issues the panel majority raises, i.e., the role the

Urban League played in creating the four minority congres-

sional districts, and the trial court found that the League

ultimately ‘“‘chose to proceed on the basis of their own

separate map.” Hastert II, 794 F. Supp. at 260. This find-

ing was not an abuse cf discretion.

Regardless of which parties prevailed, I continue to adhere

- to the position enunciated in my prior dissenting opinion

agreeing with the three-judge district court? that special

circumstances mitigate against an award of attorneys’

fees. Hensley v. Eckerhart, 461 U.S. 424, 429 (1983). The

district court found special circumstances render an award

of attorneys’ fees “unjust” in a case where (1) “the Board

has played no active role in these proceedings and agree{d]

to abide by the judgment of thfe] court,” Hastert I, 777

F. Supp. at 639, (2) the litigation only involves plaintiffs’

groups vying against one another and above all, (2) the

redistricting should have occurred in the state legislative

forum where attorneys’ fees were unavailable. I remain of

the opinion that this court should consider en banc whether

2 Hastert II, 794 F. Supp. at 260-61.

App. 28

the district court’s interpretation of the fee statute is im-

proper.

The amended majority opinion makes it even more clear

that special circumstances make an award of fees in this

type of case “unjust.’”’ Jd. In deciding to confer prevail-

ing party status on all but the Rosebrook plaintiffs and

then proceeding to award the prevailing parties attorneys’

fees, the majority obviously found it necessary to and did

in fact expand the parameters of the standard for deter-

mining prevailing party status. A decision of this nature

will only invite more challenges in redistricting litigation

by encouraging special interest litigants to jump on the

bandwagon (1) hire counsel, (2) draft a redistricting plan

reflecting their own special concerns, (8) join in the state-

wide plan with the greatest chance of success, and (4) sad-

dle the taxpayers with payment of their attorneys’ fees

under this newly created standard. Moreover, I am fear-

ful that the majority opinion will accomplish nothing but

to encourage groups like those before us to stonewall dur-

ing the state legislative process (preventing the legislature

from timely drafting a redistricting map) and then shift

the battle to the federal courtroom where the plaintiffs’

attorneys can receive a windfall of compensation for their

services at the taxpayers’ expense.?

Neither the State of Illinois nor any other governmental

body should be responsible for the attorneys’ fees of the

3 The majority suggests that the legislature’s inability to draft

a redistricting plan was due in part to the fact there was a Re-

publican governor and a Democratic legislature. This attempt at

assigning blame is in error because the legislature, which was con-

trolled by one party, never even passed or voted on a plan. Thus,

the Republican governor was not called _— to sign any legisla-

tion. The failure to pass redistricting legislation was likely attrib-

utable to the various plaintiff groups vying inst one another.

The fact that Illinois failed to pass redistricting legislation following

the census of 1970 and 1980 is of little consequence for in those

years, one party controlled the house and the other controlled the

senate.

App. 29

prevailing parties in litigation involving a truly nominal

defendant who played no active role in the proceedings.

Attorneys’ fees awards are especially uncalled for when

the unmeritorious claims are based primarily on the liti-

gants’ partisan interests, i.e., drawing the most favorable

redistricting boundries, as opposed to protection of rec-

ognized constitutional rights of aggrieved parties. As I

stated in my prior dissent, fee shifting in civil rights liti-

gation is not intended to result in a “windfall” for attor-

neys, yet that is precisely what occurred in this instance.

Farrar v. Hobby, 113 S. Ct. 566, 575 (1992).

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

App. 30

{Dated December 17, 1993]

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Nos. 92-1397, 92-1398, 92-1399,

92-1402 and 92-1403

DENNIS J. HASTERT, HARRIS FAWELL,

JOHN E. PORTER, PHILIP M. CRANE,

HENRY J. HYDE, and RoBert H. MICHEL,

Plaintiffs,

and

JOHNNY Scott and BEN Howarb,

Intervenor Plaintiffs-Appellants,

VU.

ILLINOIS STATE BOARD OF ELECTION

COMMISSIONERS, JOHN J. LANIGAN,

THERESA ™. PETRONE, RICHARD A. COWEN,

LAWRENCE «. JOHNSON, DAVID E. MURRAY,

LANGDON D. NEAL, WANDA L. REDNOUR and

HANNELORE HUISMAN,

Defendants-Appellees.

DENNIS J. HASTERT, HARRIS FAWELL,

JOHN E. PORTER, PHILIP M. CRANE,

HENRY J. HyDE, ROBERT H. MICHEL,

and THOMAS W. EWING,

Plaintiffs-Appellants,

v.

{Caption continued on following page)

App. 31

STATE BOARD OF ELECTIONS, JOHN J. LANIGAN,

THERESA M. PETRONE, RICHARD A. COWEN, LAWRENCE

E. JOHNSON, Davip E. MURRAY, LANGDON D. NEAL,

WANDA L. RE DNOUR and HANNELORE HUISMAN,

Defendants-A ppellees.

WILFREDO NIEVES, AL JOHNSON, LINDA CORONADO,

Boppy Rusu, JESUS GARCIA, REV. WILLIE BARROW,

RAFAEL Borla, MIGUEL DEL VALLE, ROBERT L. Lucas,

LEON D. FINNEY, JR., REV. CLAY EVANS, JOSEPH

GARDNER, LUIS V. GUTIERREZ, REGNER SUAREZ, JOSEPH

BERRIOS, MIGUEL A. SANTIAGO, and NEOMI HERNANDEZ,

Plaintiffs-Appellants,

v.

ILLINOIS STATE BOARD OF ELECTION COMMISSIONERS,

JOHN J. LANIGAN, THERESA M. PETRONE, RICHARD A.

COWEN, HANNELORE HUISMAN, LAWRENCE E. JOHNSON,

DAVID E. MuRRAY, LANGDON D. NEAL and

WANDA L. REDNOUR,

Defendants-A ppellees.

THE CHICAGO URBAN LEAGUE, CRAIG R. COLLINS,

MARK ALLEN, and NIKOLAS C. THEODORE,

Plaintiffs-Appellants,

v.

STATE BOARD OF ELECTIONS, JOHN J. LANIGAN, THERESA

M. PETRONE, RICHARD A. Cowen, JOHN P. DAILEY,

LAWRENCE E. JOHNSON, DAVID E. Murray, LANGDON D.

NEAL and WANDA L. REDNOUR,

Defendants-A ppellees.

(Caption continued on following page)

App. 32

ANN ROSEBROOK, DARYL BARKLOW,

AMIEL CUETO, RICHARD MARK,

JEANELLE NORMAN, CAROLYN TONEY,

LEE BABCOCK, RAYMOND OLIVER,

BARBARA POSHARD, WILLIAM MATTHEWS,

GERALD HAWKINS, and EVA SAVALA,

Plaintiffs-Appellants,

v.

STATE BOARD OF ELECTIONS,

JOHN J. LANIGAN, THERESA M.

PETRONE, RICHARD A. COWEN,

HANNELORE HUISMAN, LAWRENCE E.

JOHNSON, DAVID E. MURRAY,

LANGDON D. NEAL and WANDA L. REDNOUR,

Defendants-A ppellees.

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

Nos. 91-C-4028, 91-C-4154, 91-C-4643, 91-C-4656 and 91-C-5472—

Michael S. Kanne, Charles R. Norgle, Sr., and

Suzanne B. Conlon, District Judges.

ARGUED JANUARY 7, 1993—DECIDED DECEMBER 17. 1993

Before CUDAHY, COFFEY and ROVNER, Circuit Judges.

CUDAHY, Circuit Judge. We are asked here to review

a decision of a three-judge district court denying attor-

neys’ fees to certain parties involved in litigation regard-

ing congressional redistricting in Illinois following the 1990

census. We are presented initially with some rather puz-

zling jurisdictional questions. To resolve them, we must

recount the procedural history of this litigation in regret-

tably copious detail.

App. 33

Because Illinois’ population grew during the 1980s at

a rate slower than that of the United States as a whole,

the number of congressional seats apportioned to Illinois

was reduced from 22 to 20. The task thus fell to the IIli-

nois legislature to implement a constitutionally acceptable

congressional redistricting plan, taking into account the

fewer districts allocated to the state.! This is not an easy

task under any circumstances, but it may be virtually im-

possible when the governor is of a different political party

than a majority of the members of both houses of the leg-

islature.2 Such was the situation in Illinois in 1991. And,

quite predictably, the Illinois General Assembly failed to

enact a redistricting plan by the constitutionally mandated

June 30, 1991 deadline. Indeed, the legislature failed even

to bring a redistricting plan to the floor for debate.

Anticipating this legislative deadlock, the Republican

Party members of the Illinois congressional delegation (the

“Hastert” plaintiffs or group) filed the initial action in this

matter on June 27, 1991. The Hastert plaintiffs sought

a declaration that the present Illinois congressional dis-

tricts were unconstitutional because of changes reflected

in the 1990 census. They also sought to enjoin the Illinois

State Board of Elections from conducting the 1992 con-

gressional elections under the congressional district plan

then in effect, and submitted their own redistricting pro-

posal to replace the outdated map. The Chief Judge of

this court convened a three-judge district court to hear

the case, as 28 U.S.C. § 2284(a) requires.

On July 3, 1991, a group of Hispanic and African-Ameri-

can voters (the “Nieves” plaintiffs or group) filed a similar

1 Article 4, § 3(b) of the Illinois Constitution states, “In the year

following each Federal decennial census year, the General As-

sembly by law shall redistrict the Legislative and Representative

Districts.”

2 Redistricting plans are within the veto power of an Illinois

overnor. See Williams v. Kerner, 30 Ill. 2d 11, 195 N.E.2d 680

1964).

App. 34

action. In addition to the relief requested by the Hastert

group, the Nieves plaintiffs sought the creation of a con-

gressional district containing a majority of Hispanic voters

which, they maintained, section two of the Voting Rights

Act, 42 U.S.C. § 1978, required. The Nieves and Hastert

actions were later consolidated.

On July 24, 1991, a group of voters ostensibly acting

on behalf of certain members of the Illinois congression-

al delegation affiliated with the Democratic Party (the

“Rosebrook”’ plaintiffs or group) filed still another simi-

lar action, which was subsequently consolidated with the

Hastert and Nieves cases. On the same day, Represen-

tative Cardiss Collins and Representative Charles Hayes,

along with several voters from their respective African-

American majority districts (the ‘‘Collins” plaintiffs or

group), filed a fourth action that was also consolidated

with the Hastert and Nieves cases. Finally, the Chicago

Urban League, purporting to represent the interests of

voters in the existing African-American majority congres-

sional districts (the “Chicago Urban League’”’ plaintiffs or

group), filed its own suit on August 29, 1991. This too

was consolidated with the others.

The district court issued its decision on the merits on

November 6, 1991, enjoining the Board from using the

existing congressional district plan and ordering it to put

into effect the plan proposed by the Hastert plaintiffs.

Hastert v. State Board of Elections, 777 F. Supp. 634

(N.D. Ill. 1991). In the final sentence of its opinion, the

district court ordered that ‘‘all parties to these consoli-

dated cases bear their own costs.” 777 F. Supp. at 662.

On November 14, 1991, the Hastert, Nieves, Chicago Ur-

ban League and Scott groups moved the district court to

3 Several individuals and organizations were permitted to inter-

vene in the consolidated action, including Johnny Scott and Ben

Howard (the “Scott” plaintiffs or group), acting individually and

as representatives of local chapters of the National Association for

the Advancement of Colored People.

App. 35

alter or amend its judgment to award them costs as pre-

vailing parties. They also filed a petition for an award

of their respective attorneys’ fees pursuant to 42 U.S.C.

$§ 1973(e) and 1988. On November 21, 1991, the Collins

plaintiffs moved the court for leave to file a petition for at-

torneys’ fees. Also on November 21, the Rosebrook plain-

tiffs filed a Rule 59%e) motion to alter or amend the judg-

ment.* While this motion was still pending, the Rosebrook

plaintiffs filed, on December 24, 1991, a motion for leave

to file a petition for attorneys’ fees and expenses.

The district court denied the Rosebrook plaintiffs’ Rule

59e) motion on December 27, 1991, and on January 7,

1992, the court denied as untimely their motion for leave

to file a petition for fees. On January 13 the Rosebrook

group moved the court to reconsider its denial of their

fee motion. On January 17, 1992, the district court issued

a memorandum opinion denying the Hastert, Nieves, Col-

lins, Chicago Urban League and Scott groups’ motions for

costs and attorneys’ fees. Hastert v. State Board of Elec-

tions, 794 F. Supp. 255 (N.D. Ill. 1992). In the same opin-

ion, the court ordered that the cost of publishing notices

of the action in newspapers throughout the state be di-

vided equally among the Hastert, Nieves, Rosebrook and

Collins groups. 794 F. Supp. at 261. Four days later, on

January 21, the court denied as moot the Rosebrook plain-

tiffs’ January 13 motion for reconsideration.

On January 28, the Nieves plaintiffs moved the district

court to reconsider its January 17 decision denying attor-

neys’ fees. The Hastert plaintiffs filed an identical motion

on January 29. On January 31, the Collins plaintiffs moved

* The Rosebrook plaintiffs asked the court to amend its judgment

to state that the Hispanic majority district proposed by the Has-

tert plaintiffs, and later adopted 4 the court, was substantially

similar to the Hispanic majority district proposed by the Rose-

brook plaintiffs. The apparent purpose of this motion was to but-

tress the Rosebrook plaintiffs’ claim that they were prevailing par-

ties and thus entitled to attorneys’ fees.

App. 36

the court to reconsider its denial of attorneys’ fees and

its allocation of the costs of publishing notice. The district

court has never ruled on these motions. Several plaintiff

groups next sought to vest jurisdiction in this court. The

Scott plaintiffs on February 13, the Hastert and Nieves

plaintiffs on February 14, and the Chicago Urban League

group on February 18, filed notices of appeal with respect

to the district court’s January 17 decision denying attor-

neys’ fees. Also on February 18, the Rosebrook plaintiffs

filed a notice of appeal with respect to the district court’s

November 6, 1991, judgment, as well as from the Decem-

ber 27 order denying their motion to alter or amend that

judgment, the January 7, 1992, order denying their mo-

tion for leave to file a petition for fees, the January 17

opinion and the January 21 order denying their motion

to reconsider. The Collins plaintiffs had not filed a notice

of appeal by the time these cases were set for argument

on appeal.5

We have jurisdiction here, if at all, pursuant to 28 U.S.C.

§ 1291, which vests in the courts of appeals jurisdiction

over “all final decisions of the district courts of the United

States.” As an initial matter, we note that we do not have

jurisdiction over the merits of this case because such ap-

peals must be made directly to the United States Supreme

Court. See 28 U.S.C. § 1253 (“{Alny party may appeal to

the Supreme Court from an order [pertaining to an] in-

junction in any .. . action. . . required. . . to be heard

and determined by a district court of three judges.”) and

28 U.S.C. § 1291 (courts of appeals have jurisdiction of

appeals from final decisions of the district courts “except

where direct review may be had in the Supreme Court”’).®

5 On February 27, 1992, the Collins’ plaintiffs moved the district

court to rule on its motion for reconsideration of the denial of fees.

The court has yet to dispose of this motion.

6 Accordingly, the Rosebrook plaintiffs’ notice of appeal is inef-

fective to the extent it seeks review of the merits of the district

court’s redistricting decision.

App. 37

Appeal from the district court’s denial of attorneys’ fees,

however, is properly made to this court. See Supreme

Court of Virginia v. Consumers Union, 446 U.S. 719, 737

n.16 (1980) (Supreme Court does not have jurisdiction un-

der § 1253 if only attorneys’ fees questions are appealed).

It thus follows that awards of attorneys’ fees are appeal-

able independent of the merits and constitute separate

judgments for purposes of § 1291. People Who Care v.

Rockford Board of Education District No. 205, 921 F.2d

132, 134, 135 (7th Cir. 1991). But such fee awards, or in

this case denials, must be final in order to trigger our

§ 1291 jurisdiction.

The district court’s November 6 opinion was unquestion-

ably a final decision on the merits. But there is a consider-

able question whether it said anything, final or otherwise,

about attorneys’ fees. The only pronouncement of the dis-

trict court in its November 6 opinion that might be con-

strued to reach the attorneys’ fees issue is its final sen-

tence: “{PJarties to these consolidated cases shall bear

their own costs.” 777 F. Supp. at 662. Sections 1973/(e)

and 1988 provide that “prevailing parties” in actions to

enforce constitutional voting guarantees and certain pro-

visions of the civil rights laws are entitled to “a reason-

able attorney’s fee as part of the costs.” Thus, there is no

logical impediment to concluding that the district court’s

November 6 decision resolved, albeit sub silentio, the par-

ties’ entitlement to attorneys’ fees. However, we are not

entirely convinced that this is a correct view, and we are

quite certain that the language of the district court, if

intended to deal with attorneys’ fees (in addition to routine

court costs) was ill-chosen. Indeed, it would not be irra-

tional to conclude that the district court’s order had nothing

to do with attorneys’ fees.

Federal Rule of Civil Procedure 54(d) provides that “costs

shall be allowed as of course to the prevailing party unless

the court otherwise directs.” The Supreme Court has in-

structed that 28 U.S.C. § 1920 defines the term “costs”

as it is used in Rule 54(d). Crawford Fitting Co. v. J.T.

Gibbons, Inc., 482 U.S. 437, 441 (1987). Section 1920 au-

App. 38

thorizes the taxation of certain rather routine litigation

expenses, including clerk, marshal and court reporter fees,

“as costs.’’ Although Rule 54(d) creates a presumption

that the prevailing party will recover these costs, the deci-

sion to make the award of costs is entrusted to the sound

discretion of the district court. Soler v. Waite, 989 F.2d

251, 254-55 (7th Cir. 1993). As a result, district courts rou-

tinely direct that prevailing parties are not entitled to

Rule 54(d) costs through concise orders, frequently no

longer than a single sentence. See, e.g., Tolle v. Carroll

Touch, Inc., 813 F. Supp. 1868 (C.D. Ill. 1993); Harlan

E. Moore Charitable Trust v. United States, 812 F. Supp.

130 (C.D. Ill. 1993); Nalco Chemical Co. v. Hydro Tech-

nologies, Inc., 809 F. Supp. 672 (E.D. Wis. 1992); Ridge-

field Park Transportation v. Uhl, 803 F. Supp. 1467 (S.D.

Ill. 1992). The district court’s November 6 ‘“‘tag line” that

the parties to this litigation were to “bear their own costs”

is arguably an adequate exercise of its discretion to deny

Rule 54(d) costs, as that term is defined by 28 U.S.C.

§ 1920.7 But attorneys’ fees would seem to be “costs” of

a different sort.

Before the Supreme Court decided Alyeska Pipeline

Service Co. v. Wilderness Society, 421 U.S. 240 (1975),

many federal courts believed that they had the power in

certain cases, contrary to the so-called “American” rule

that parties are to bear their own costs of legal represen-

tation, to award attorneys’ fees to prevailing parties as

a component of Rule 54(d) costs. In Alyeska, however,

the Court disapproved this practice and held that federal

courts may order the losing party to pay the winner’s

attorneys’ fees only if Congress has authorized such fee

awards by statute. Jd. at 263-64. There is no dispute that

sections 1973/(e) and 1988 are statutes of this type nor,

as a result, is there any question that the district court

7 Hereafter, when we use the phrases “Rule 54(d) costs” or “rou-

tine Rule 54(d) costs” we will be referring to the set of costs de-

scribed by 28 U.S.C. § 1920.

App. 39

had the power to decide which parties to the present liti-

gation, if any, were entitled to attorneys’ fees. There is

legitimate room for doubt, however, that the district court

exercised this power on November 6.

It is true that even after Alyeska we continued to treat

requests for attorneys’ fees under section 1988 as motions

for costs governed by Rule 54(d). See Hairline Creations,

Inc. v. Kefalas, 664 F.2d 652, 659 (7th Cir. 1981) and Bond

v. Stanton, 630 F.2d 1231, 1234 (7th Cir. 1980), cert. de-

nied sub nom. Blinzinger v. Bond, 454 U.S. 1063 (1981).

But this is the only similarity section 1988 attorneys’ fees

have to Rule 54(d) costs. While district courts have broad

discretion to award or deny Rule 54(d) costs, their “discre-

tion to deny a fee award [under section 1988] to a prevail-

ing party is narrow.” New York Gaslight Club, Inc. v.

Carey, 447 U.S. 54, 68 (1980). Indeed, we have held that

prevailing civil rights plaintiffs are entitled to their attor-

neys’ fees ‘‘as a matter of course.” Entertainment Con-

cepts, Inc. III v. Maciejewski, 631 F.2d 497, 506 (7th Cir.

1980), cert. denied, 450 U.S. 919 (1981). See also Dawson

v. Pastrick, 600 F.2d 70, 79 (7th Cir. 1979). Although a

district court may be able to dispose of routine Rule 54(d)

costs with a single, off-hand line at the end of a lengthy

decision on the merits, a denial of section 1988 attorneys’

fees would seem to require more deliberation.

Admittedly, we cannot know with any degree of certain-

ty whether the district court considered the attorneys’

fee issue before issuing its November 6 opinion. We note,

however, that the district court’s January 17 decision on

this issue occupies five pages in the Federal Supplement.

There is something troubling about disposing of a mat-

ter with a single line (and with no explicit reference to

fees) that later requires resolution by a thorough written

opinion. Moreover, we have found nothing in the record

to suggest that the parties put the fees issue properly

before the district court until they filed their petitions

for fees at various times after November 6. Nevertheless,

the district court stated its view that it had indeed ad-

dressed the question of attorneys’ fees in its November

App. 40

6 opinion. 794 F.Supp. 258. The district court is in the

best position to interpret its own orders, and we will not

disturb such an interpretation absent a clear abuse of dis-

cretion. In the Matter of Chicago, Rock Island & Pacific

R.R., 865 F.2d 807, 810 (7th Cir. 1988). Therefore, although

the form of the November 6 opinion creates puzzling am-

biguities and procedural difficulties and may be misleading

to litigants, the district court’s interpretation of this opin-

ion is not a clear abuse of discretion.

Characterizing the November 6 opinion as a final deci-

sion both on the merits and as an award of attorneys’

fees has important jurisdictional consequences. Specifically,

if the parties wished to challenge such a denial of attor-

neys’ fees they had only two choices. They could appeal

the decision within thirty days, Fed. R. App. P. 4(aX1),

or they could toll the time for appeal by filing a Rule 5%e)

motion to alter or amend judgment within ten days, exclu-

sive of weekends and holidays. None of the parties chose

to appeal the November 6 order insofar as it pertained

to attorneys’ fees. The Hastert, Nieves, Chicago Urban

League and Scott groups, however, did file a timely Rule

5&e) motion on November 14.8 The district court denied

this motion on January 17. The Hastert, Nieves, Scott

and Chicago Urban League plaintiffs all filed timely no-

8 Actually, these groups filed a motion to alter or amend judg-

ment and a petition for attorneys’ fees pursuant to section 1988.

Ordinarily, such a petition for attorneys’ fees would not be a proper

Rule 5Xe) motion. White v. New Hampshire Dep’t of Employment

Sec., 455 U.S. 445, 451 (1982). But because we have adopted the

district court’s view that it considered and denied attorneys’ fees

in its November 6 opinion, the later petition for such fees must

be construed as a Rule 59e) motion. Under our cases, all substan-

tive motions served within ten days of the entry of judgment are

treated as filed under Rule 5X%e). Charles v. Daley, 799 F.2d 343,

347 (7th Cir. 1986). The petition for attorneys’ fees was filed within

ten days of the November 6 entry of judgment and it was substan-

tive in the sense that it asked the district court to reverse its

earlier denial of fees.

App. 41

tices of appeal from this denial.? We thus have jurisdic-

tion over their appeals.

The Rosebrook group, however, waited until December

24 to file a petition for attorneys’ fees, well past the ten

day limit for filing an appeal-delaying Rule 59e) motion.

The district court properly denied this petition as untime-

ly.1° The Rosebrook group may well have been misled by

the terse nature of the district court’s ruling on “fees”

as we have indicated above. But, by deciding to honor

the district court’s characterization of its own order of

November 6, we must correspondingly rule that the Rose-

brook group was late. Those plaintiffs moved the district

court to reconsider this motion. The court denied the mo-

tion to reconsider on January 21, and the Rosebrook plain-

tiffs filed a notice of appeal on February 18. We thus have

jurisdiction over the Rosebrook’s appeal only to the ex-

tent that it requests review of the district court’s January

21 decision. Such review is, of course, exceedingly narrow.

We are only permitted to consider whether the district

court erred in denying the Rosebrook group’s motion to

reconsider the denial of a Rule 60(b) motion.

Thus having ascertained our jurisdiction, we now turn

to the merits. Under 42 U.S.C. § 1973l(e), a court “‘in its

discretion, may allow the prevailing party a reasonable

* In addition to appealing to this court, the Hastert and Nieves

plaintiffs also moved the district court to reconsider its January

17 decision. Since the district court has not resolved these motions,

one might think that their appeals are premature. But successive

requests to alter or amend judgment, which are all these motions

amount to, do not toll the time for appeal, United States Equal

Employment unity Comm'n. v. arnve Inns, Inc., 956 Pod

146, 148 (7th Cir. 1992), nor do they affect the finality of the judg-

ment. Charles v. Daley, 799 F.2d 343, 347 (7th Cir. 1986).

10 Because the Rosebrook’s petition for attorneys’ fees was filed

almost two months after the entry of judgment, it cannot be a

Rule 5&e} motion. Under United States v. Deutsch, 981 F.2d 299,

301 (7th Cir. 1992), it must be construed as a motion for relief

from judgment filed pursuant to Fed. R. Civ. P. 60(b).

App. 42

attorney’s fee” in an action, such as this one, ‘“‘to enforce

the voting guarantees of the fourteenth or fifteenth amend-

ments.” Pursuant to 42 U.S.C. § 1988, a court may make

a similar award of fees to a “prevailing party” in a suit

to enforce the provisions of 42 U.S.C. § 1983.1! Although

the statutes commit fee awards to the district court’s

discretion, Congress has nevertheless made clear that

prevailing plaintiffs ‘‘should ordinarily recover an attor-

ney’s fee unless special circumstances would render such |

an award unjust.” S. Rep. 925, 94th Cong., Ist Sess. 40

(1975), reprinted in 1975 U.S.C.C.A.N. 774, 807 (address-

ing § 1973l(e)); S. Rep. 1011, 94th Cong., 2d Sess. 4 (1976),

reprinted in 1976 U.S.C.C.A.N. 5908, 5912 (addressing

§ 1988). In any event, our analysis begins by determin-

ing which parties, if any, prevailed.

This is not ordinary litigation. Most notably, the under-

lying controversy in this case, i.e., the fight over the con-

figuration of Illinois’ new congressional districts, was not

between the plaintiffs and the defendant. The State Board

of Eiections is truly a nominal defendant, completely dis-

interested in the outcome of that fight. The real dispute

was between the various plaintiffs. Each had a plan to

offer and the winner, at least from a lay person’s perspec-

tive, is the litigant whose map the district court adopted.

Conveniently, this common-sense understanding of winners

and losers coincides in large part with the Supreme Court’s

definition of “prevailing party.”

A party prevails, within the meaning of the fee-shifting

statutes, “if [it] succeeds on any significant issue in litiga-

tion which achieves some of the benefit the parties sought

in bringing suit.”’ Hensley v. Eckerhart, 461 U.S. 424, 433

(1983). We agree with the district court, that “the principal

issue in litigation during these proceedings involved the

11 Because §§ 1973/(e) and 1988 contain nearly identical language

and are driven by similar congressional purposes, we construe

them similarly. Cf. Hensley v. Eckerhart, 461 U.S. 424, 433 n.7

(1983).

App. 43

determination of which proposed [congressional districting]

plan for the entire State of Illinois best met constitutional

and statutory criteria.” 794 F. Supp. 259. On this score,

the Hastert and Nieves groups are clear winners. The dis-

trict court ultimately adopted the plan submitted by the

Hastert plaintiffs, a plan which the Nieves plaintiffs for-

mally adopted. Jd. at 260. Thus, we find, as did the dis-

trict court, that the Hastert and Nieves groupe are “pre-

vailing parties.”

The district court concluded that the Scott and Chicago

Urban League plaintiffs did not prevail. Jd. at 259-60. We

owe these decisions some discretion. Shepard v. Sullivan,

898 F.2d 1267, 1271 (7th Cir 1990). But when a district

court overlooks, either intentionally or inadvertently, rele-

vant, binding precedent, its decision cannot stand. In de-

fining “prevailing party,” the district court relied exclu-

sively upon Hensley v. Eckerhart, 461 U.S. 424 (1983).

Although Hensley is a central case interpreting the fee-

shifting statutes, the Supreme Court has provided addi-

tional guidance. In particular, the Court in Texas State

Teachers Association v. Garland Independent School Dis-

trict, 489 U.S. 782, 790 (1989), rejected the so-called ‘‘cen-

tral issue” test that several lower courts had adopted fol-

lowing Hensley. Under that test, a party was deemed to

have prevailed only if he “prevailed on the central issue

by acquiring the primary relief sought.” Jd. at 787 (cita-

tion omitted). In rejecting this formulation, the Court con-

cluded that the degree of a plaintiff's success in relation

to the other goals of the lawsuit was relevant only to

the determination of the size of a reasonable fee, “not

to eligibility for a fee award at all.” Jd. at 790. The court

reiterated that success on any significant issue in litiga-

tion conferred prevailing party status. Jd. at 791 (emphasis

supplied).

The district court noted that the Scott plaintiffs inter-

vened “for the limited purpose of addressing the config-

uration of a relatively small geographic area in the vicinity

of East St. Louis, Illinois, contained in one of the pre-

App. 44

trial Hastert plans.” 794 F. Supp. at 259. The court went

on to conclude that

{pjlaced in the context of arduous . . . proceedings

conducted to review only redistricting plans for the

entire state, the Scott [plaintiffs’] fleeting presence

to address their concerns regarding a tiny fraction

of the state, their neutral stance regarding the merits

of the principal issue to be litigated and their absence

from the trial proceedings compel the conclusion that

they do not constitute a statutory prevailing party

Id. (internal quotation marks omitted). Certainly, the dis-

trict court is correct that, in terms of the entire redis-

tricting process, the Scott plaintiffs’ claims were not par-

ticularly expansive. Under the “central issue” test, they

perhaps would not be entitled to fees. But the Supreme

Court has rejected that analysis. We find that the con-

figuration of any of Illinois’ 20 congressional districts was

a significant issue in the litigation, and, after Garland,

success on any such issue is enough to trigger an award of

fees. Under this standard, the Scott plaintiffs undoubtedly

prevailed. They urged that the congressional districts en-

compassing East St. Louis be configured in a particular

way. They convinced the Hastert group to incorporate

their proposed configuration into the Hastert master plan.

When the district court adopted the Hastert plan, the Scott

group accomplished everything it set out to achieve.!? Thus,

they too prevailed.

The Chicago Urban League group, representing the pur-

ported interests of various African-American voters, sub-

12 It is of no consequence that the Scott group achieved its goals

without litigating to the bitter end. Indeed, the Supreme Court

has held that a party who achieves success by settling is entitled

to attorney’s fees. Maher v. Gagne, 448 U.S. 122, 129 (1980). All

that is important is for the party to obtain the “substance of what

[it] sought.” Hewitt v. Helms, 482 U.S. 755, 761 (1987). The Scott

plaintiffs undeniably did so.

App. 45

mitted its own proposed minority district plan. It now

claims to have been “at the forefront in both achieving

settlement and in ensuring adoption of its [own] proposed

configuration in the Hastert plan.” Chicago Urban League’s

Br. at 11. These claims present close and difficult ques-

tions, and we will make several observations in attempting

to determine their validity.

First, although some groups representing minority of-

ficials and voters, including the Scott group, did compro-

mise and settle their differences with the Hastert group,

see 777 F. Supp. 640, the Chicago Urban League plain-

tiffs did not. But, by remaining in the litigation with a

position paralleling that of the Hastert plaintiffs, the Chi-

cago Urban League group did help to bring about a set-

tlement along those lines. Second, although the Chicago

Urban League group’s proposed minority districts “closely

tracked” the Hastert plan’s configuration for the same

districts, the Chicago Urban League plaintiffs ‘chose to

proceed on the basis of their own separate map.” 794 F.

Supp. at 260. The district court did not adopt the League’s

plan as such, but the plan adopted was certainly very

close to that advocated by the League. Some might say

that the League is in the position of a party that refused

a generous settlement offer only to come up a bit short

after the trial. But this point of view may place too much

emphasis on a particular procedure, like formal settlement.

On the other hand, congressional redistricting is a precise

business, and battles often rage over slight changes in

district boundaries. For example, in this litigation the

Hastert group’s (winning) plan contained a population de-

viation of 0.00017% while the Rosebrook group’s (losing)

plan contained a similar deviation of 0.00297%. 794 F.

Supp. at 644. This case was ultimately fought along the

margins. Moreover, the redistricting process is, at some

level, a zero-sum affair, one plan is adopted and the rest

are rejected. To the end, the Chicago Urban League plain-

tiffs insisted on their own map. They did not get it. On

an issue like this, where either result would have been

sustainable, the district court is in the best position to

App. 46

determine whether fees are appropriate. Here, the district

court did not abuse its discretion.

In sum, we agree with the district court that the Has-

tert and Nieves groups did prevail. We find, however,

that the district court applied the wrong legal criteria in

ascertaining the Scott plaintiffs’ status. Measured by the

correct standard, they too prevailed. As a result, the Has-

tert, Nieves and Scott groups are prima facie entitled to

fees. We believe that the Chicago Urban League has a

strong claim to entitlement. However, its insistence on

its own map in formal opposition to the winning Hastert-

Nieves map removes it sufficiently from complete ‘‘suc-

cess” to support the district court’s determination that

it was not a prevailing party.

Our analysis does not end here, however, since the dis-

trict court went on to find that the existence of “‘special

circumstances”: precluded an award of fees even to prevail-

ing parties. Although the fee shifting statutes commit fee

awards to a district court’s discretion, such discretion is,

as previously noted, quite narrow once prevailing party

status has been determined. See, e.g., New York Gaslight

Club, Inc. v. Carey, 447 U.S. 54, 68 (1980). And we find

that the reasons given by the district court for denying

fees to prevailing parties in this case are inadequate.

The district court stated that “Congress’ primary pur-

pose in providing attorney’s fees in civil rights litigation

. . . was ‘to eliminate financial barriers to the vindica-

tion of constitutional rights ....’”’ 794 F. Supp. at 260

(quoting Seattle School District v. Washington, 633 F.2d

1338, 1348 (9th Cir. 1980), aff'd, 458 U.S. 457 (1982)). The

court went on to note that the plaintiffs in this case “do

not appear to be drawn from the ranks of the disempow-

ered and financially disadvantaged citizenry that Congress

had in mind when enacting [fee-shifting statutes].” Jd. The

district court is wrong on this point for two reasons. First,

despite the fact that certain of the plaintiffs in this mat-

ter were elected officials, there is no evidence that they

were particularly wealthy. Second, and more important-

App. 47

ly, the Supreme Court has consistently held that a plain-

tiff’s ability to pay for legal representation is not a special

circumstance justifying denial of attorneys’ fees. See, e.g.,

Venegas v. Mitchell, 495 U.S. 82, 87-88 (1990); Blanchard

v. Bergeron, 489 U.S. 87, 94 (1989).

The district court also asserted that an award of fees

would be unjust because “the plaintiffs merely shifted the

legislative lobbying process that typically attends congres-

sional redistricting to a federal judicial arena.” 794 F.

Supp. 261. This might be true, but it is hardly a reason

to deny attorneys’ fees. It is surely regrettable that the

Illinois General Assembly was unable to enact a new con-

gressional district scheme and that the taxpayers of the

State of Illinois must now pay for their dereliction. But

such is the case whenever the political branches of govern-

ment fail to vindicate important rights and the affected

parties must seek a judicial hearing. There can be no doubt,

moreover, that fee awards may issue against state and

local governments. Hutto v. Finney, 437 U.S. 678, 694

(1978). Thus, the State Board of Elections, as an agency

of the state, may properly be held accountable for the

prevailing parties’ attorneys’ fees.!*

In reviewing these thorny fees matters in this redistrict-

ing case, we recognize the perhaps peculiar circumstances

of redistricting cases generally. Here, all of the plaintiffs

“contributed” to the final result in the sense that, by tak-

ing positions that were more or less, in whole or in part,

“incorporated’’ into the accepted map, all parties arguably

helped move the process forward toward its eventual cul-

mination. On the other hand, there may be greater or

13 It is of no consequence that the State Board of Elections played

no active role in the proceedings and agreed to enforce whatever

plan the district court adopted, since fees may be taxed even against

entities whose role is limited to enforcement of regulations they

played no role in promulgating. Crosby v. Bowling, 683 F.2d 1068,

1073 (7th Cir. 1982). Nor is the Board’s putative “good faith” a

special circumstance justifying a refusal to award fees. Lampher

v. Zagel, 755 F.2d 99, 104 (7th Cir. 1985).

App. 48

lesser, formal or substantial, differences between the maps

of the “winners” and the maps of the “losers.” The Has-

tert, Nieves and Scott plaintiffs have been declared the

winners because exactly what they advocated has been

accepted. Although the presence of the Chicago Urban

League undoubtedly contributed to the final result, the

district court—with our reluctant approval—decided against

these plaintiffs because the map sought was not precise-

ly the one adopted.

The State Board of Elections, the nominal defendant,

has no interest in the eventual outcome except that there

be an outcome which it can implement. Yet the State Board

may be held liable for fees to the prevailing parties plain-

tiff, whose status as such depends urvn the relative suc-

cess of their position in relation to the success of the other

plaintiffs. These configurations of claim to liability and of

success to failure are essentially unique to redistricting

cases. In such cases, liability is usually imposed on a neu-

tral (and nominal) defendant, and successful fees claims

are awarded to the relatively successful plaintiffs. In this

case, we are attempting to apply principles developed in

a wide range of civil rights cases to the sui generis cate-

gory of redistricting cases. As might be expected, these

principles do not provide a close fit to this subject mat-

ter. It might be appropriate and helpful, by statute or

otherwise, to develop a set of rules specifically govern-

ing attorneys’ fees in redistricting cases, but that is not

our task here.

Finally, we turn to the Rosebrook plaintiffs’ appeal. If

we were to address this group’s claims on the merits, it

might be a close call, since the pro’s and con’s are similar

to the factors affecting the Chicago Urban League plain-

tiffs (although the Rosebrook’s map, overall, is in marked

contrast to the winning Hastert map). But we cannot ad-

dress the merits of the Rosebrook plaintiffs’ claim since

they filed their petition for fees late. We have acceded to

the district court’s conclusion that its November 6, 1991,

decision addressed attorneys’ fees. Under United States

App. 49

v. Deutsch, 981 F.2d 299, 301 (7th Cir. 1992), substantive

motions filed more than ten days after entry of final judg-

ment are construed as motions filed under Federal Rule

of Civil Procedure 60(b). The Rosebrook plaintiffs did not

file their petition for fees until December 24, 1991, con-

siderably more than ten days after the entry of final judg-

ment on the fees issue. As a result, we construe their

petition as a Rule 60(b) motion, or, more precisely, as an

attempted Rule 60(b) motion.

The bases for relief specified in Rule 60(b) are indeed

broad, encompassing “any . . . reason justifying relief from

the operation of the judgment.” We warned in Deutsch,

however, that parties should not expect to use the prin-

ciple announced there as “a Trojan horse for sneaking

what are actually tardy Rule 59%e) motions into the court-

room under the guise of Rule 60(b).” 981 F.2d at 302. The

Rosebrook plaintiffs’ petition for fees can reasonably be

considered as nothing other than a belated Rule 59%e) mo-

tion. The district court thus properly denied it as untimely

in the first instance and did not abuse its discretion in re-

fusing to reverse that decision upon the Rosebrook group’s

motion for reconsideration.

For the foregoing reasons, we REVERSE the judgment

of the district court insofar as it held that the Scott group

is not a prevailing party. We also REVERSE the district

court’s determination that special circumstances exist so

as to preclude the award of attorneys’ fees to prevailing

parties. We AFFIRM the district court’s judgment that

the Hastert and Nieves plaintiffs are prevailing parties

and that the Chicago Urban League plaintiffs are not pre-

vailing parties. We also AFFIRM the court’s denial of the

Rosebrook group’s petition for fees as untimely filed. F'i-

nally, we REMAND the case with instructions to award

reasonable attorneys’ fees to the prevailing parties.

AFFIRMED IN PART, REVERSED IN PART

AND REMANDED WITH INSTRUCTIONS

App. 50

CorFEY, Circuit Judge, dissenting. I concur with the

majority opinion on the issue of which parties prevailed

in the litigation, i.e., the Hastert plaintiffs, the Nieves

plaintiffs and the Scott plaintiffs, however, I am of the

opinion that the district court did not abuse its discre-

tion in denying fees to the prevailing parties because of

the presence of special circumstances. See Hastert v. State

Bd. of Elections, 794 F. Supp. 254, 260-61 (N.D. Ill. 1992).

It is well-settled that prevailing parties “should ordinar-

ily recover_an attorney’s fee unless special circumstances

would render such an award unjust.” Hensley v. Ecker-

hart, 461 U.S. 424, 429, 103 S. Ct. 1933, 1937 (1983) (quot-

ing S. Rep. No. 94-1011, 2d Sess. 4, in 1976 U.S.C.C.A.N.

5908, 5912 (quoting Newman v. Piggie Park Enterprise,

390 U.S. 400, 402, 88 S. Ct. 964, 966 (1968))). Congress

clearly provided this exception for special circumstances

because it was cognizant that an award of attorneys’ fees

is not always warranted. See S. Rep. No. 94-1011 at 1

in 1976 U.S.C.C.A.N. at 5909 (declaring the oe of

the Attorney’s Fees Awards Act as “giv[ing] the ederal

courts discretion to award attorneys’ fees to prevailing

parties in suits brought to enforce the civil mghts acts

...); see also Seattle School Dist. v. Washington, 633

F.2d 1338, 1348 (9th Cir. 1980), affd 458 U.S. 457, 102

S. Ct. 3187 (1982) (special circumstances render an award

unjust when “allowing attorney’s fees in a particular case

would [not] further the congressional purpose in adopting

the [fee] Acts” or when an award is contrary to “the bal-

ance of the equities”).

I agree with the majority that both the indigent civil

rights plaintiff and the civil rights plaintiff who has the

financial means to afford legal representation are entitled

to attorneys’ fees, see, e.g., Venegas v. Mitchell, 495 U.S.

82, 87-88 (1990), and thus it would be inap ropriate to

deny attorneys’ fees to the prevailing plaintiffs in this ac-

tion merely because they may have some economic means.

However, it is evident that the three-judge district court

panel denied the attorneys’ fees in part because of the

“balance of the equities,’ Seattle School Dist., 633 F.2d

App. 51

at 1348, and not simply because the plaintiffs were not

“drawn from the ranks of the disempowered and finan-

cially disadvantaged.” Hastert, 794 F. Supp. at 260-61.

In regard to the balance of the equities, my primary

concern is that if parties can obtain attorneys’ fees under

the particular set of facts in this case then we are inviting

future plaintiffs to stonewall during the legislative redis-

tricting process and once the deadline for the legislature

to adopt a redistricting plan passes, the parties may shift

the debate into the federal court arena where they will

be entitled to attorneys’ fees. The majority dismisses this

concern by stating that the fee award is justified because

of the legislature’s “dereliction,” i.e., the political branch

of government failed to pass redistricting legislation before

the statutory deadline. We are hardly in a position to

make an assessment of this factual situation for we have

before us neither a record of the legislative hearings nor

any live witnesses much less a tape of the proceedings.

Thus, while it is obvious that fee awards may issue against

state governments, e.g. Hutto v. Finney, 437 U.S. 678,

694 (1978), it is far from obvious that such an award is

mandated in the case before us.

The posture of this case dictates that we deny the pre-

vailing parties attorneys’ fees. If this case had remained

in the legislative forum the parties would not be entitled

to attorneys’ fees. The only reason they now qualify for

an award of attorneys’ fees is because the legislature,

possibly due to a lack of leadership or many and/or sun-

dry other potential reasons, failed to draft a redistricting

plan within the statutorily imposed deadline. Significantly,

we have no knowledge of what role the prevailing parties

played if any in preventing the legislature from adopting

a redistricting a rior to the deadline. The plaintiffs

might have interfered with the legislative process through

stonewalling the legislature from timely passing a redis-

trieting plan. Thus, I am of the opinion that neither the

purpose of the fee-shifting statute nor the balance of the

equities favors a grant of attorneys’ fees.

App. 52

In addition, and perhaps most importantly, it is evident

that throughout the redistricting process the State Board

of Elections at all times made it eminently clear that it

was willing to conduct the 1992 congressional elections ac-

cording to whatever plan was adopted. The Board’s un-

qualified acquiescence is proof that the State was not ac-

tively involved in denying the plaintiffs’ voting rights and

thus the State of Illinois through its Board of Elections

should not be penalized and ordered to pay the plaintiffs’

legal fees. This must not be read to indicate that prevail-

ing parties are not entitled to attorneys’ fees in any re-

districting cases, but under this particular set of facts,

where there was a complete lack of adversarial activity

on the part of the State Board of Elections, I am con-

vinced that attorneys’ fees should be denied as a special

circumstance.

Because the majority is intent on awarding attorneys’

fees, I can only suggest to the district court that on re-

mand they heed to the Third Circuit case of Daggett v.

Kimmelman, 864 F.2d 1122 (8d Cir. 1989), which contains

a thorough and thoughtful analysis on what constitutes

reasonable attorneys’ fees. Daggett prohibits plaintiffs from

receiving attorneys’ fees for “time spent on political con-

siderations, even if interwoven with services that are com-

pensable.” Jd. at 1128. Additionally, in Daggett, the court

was unwilling to accept prevailing parties attorneys’ affi-

davits as proof positive of reasonable fees. The court of

appeals directed the trial court to make an inquiring search

into the billable hours to assure that “the New Jersey

taxpayers, would not be required to pay fees for anything

other than the time reasonably spent to devise a constitu-

tional plan.”’ Jd. at 1127. Because of the holding in the

majority opinion, the district court will be required to con-

duct a fact finding hearing to determine what, if any, at-

torneys’ fees are compensable. I would encourage the trial

court to make an in-depth inquiry into the award of at-

torneys’ fees to assure that they are not recompensed for

time that was commingled with political considerations

because fee shifting in civil rights litigation is not meant

App. 53

a oe Cee

to produce a “windfall” for attorneys. Farrar v. Hobby,

113 S. Ct. 566, 575 (1992).

For the reasons stated herein, I respectfully DISSENT.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

App. 54

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

Case Number: 91 C 4028 (Consolidated)

Date: January 17, 1992

Name of Assigned Judge: KANNE/NORGLE/CONLON

Case Title: Dennis J. Hastert, et al. v.

State Board of Elections, et al.

MOTION: Plaintiffs’ Motions to Amend or Alter Judgment

DOCKET ENTRY:

* * Ke eK *

(10) & [Other docket entry]

Plaintiffs’ Fed.R.Civ.P. 59%e) motions to amend

or alter judgment to permit an award of attor-

ney’s fees is denied. The costs of notice of publi-

cation ordered by this court on July 31, 1991

shall be divided equally among the Hastert,

Nieves, Rosebrook and Collins plaintiffs.

ENTER MEMORANDUM OPINION AND ORDER.

/s/ SUZANNE B. CONLON

(11) & [For further detail see & order attached to the

original minute order form.|

** * KK *

App. 55

[Dated January 17, 1992]

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Consolidated Cases

DENNIS J. HASTERT, HARRIS FAWELL, JOHN

E. PORTER, PHILIP M. CRANE, HENRY J. HYDE,

AND ROBERT H. MICHEL. ey

Plaintiffs,

No. 91 C 4028 yy.

STATE BOARD OF ELECTIONS, JOHN J. LANIGAN,

THERESA M. PETRONE, RICHARD A. COWEN,

LAWRENCE E. JOHNSON, DAVID E. MURRAY,

LANGDON D. NEAL, WANDA L. REDNOUR, AND

HANNELORE HUISMAN,

Defendants.

WILFREDO NIEVES, AL JOHNSON, LINDA D.

CORONADO, BOBBY RUSH, JESUS GARCIA,

REV. WILLIE BARROW, RAFAEL BORIA, MIGUEL

DEL VALLE, ROBERT L. LUCAS, LEON D. FINNEY,

JR., REV. CLAY EVANS, JOSEPH GARDNER, LUIS

V. GUTIERREZ, REGNER SUAREZ, JOSEPH BERRIOS,

MIGUEL A. SANTIAGO, NEOMI HERNANDEZ,

Plaintiffs,

No. 91C 4154 sy.

ILLINOIS STATE BOARD OF ELECTION

COMMISSIONERS, JOHN J. LANIGAN, THERESA

M. PETRONE, RICHARD A. COWEN, HANNELORE

HUISMAN, LAWRENCE BE. JOHNSON, DAVID

E. MURRAY, LANGDON D. NEAL, AND WANDA

J. REDNOUR, Defendants.

—

App. 56

CARDISS COLLINS, CHARLES HAYES, REV. WILBUR

N. DANIELS, REV. CLAUDE S. WYATT, HOWARD B.

BROOKINS, DONALD L. WILLIAMS, PERCY GILES,

AND RICKY HENDON, on

Plaintiffs,

No. 91 C 4643 _ sv. i

STATE BOARD OF ELECTIONS, JOHN J. LANIGAN,

THERESA M. PETRONE, RICHARD A. COWEN,

JOHN P. DAILEY, LAWRENCE E. JOHNSON, DAVID

E. MURRAY, LANGDON D. NEAL, AND WANDA

EDN ;

R OUR, Defendants.

ANN ROSEBROOK, DARYL BARKLOW, AMIEL CUETO,

RICHARD MARK, JEANELLE NORMAN, CAROLYN

TONEY, LEE BABCOCK, RAYMOND OLIVER, BARBARA

POSHARD, WILLIAM MATHEWS, GERALD HAWKINS,

AND EVA SAVALA, aoe

- Plaintiffs,

No. 91 C 4656 _ sv.

STATE BOARD OF ELECTIONS, JOHN J. LANIGAN,

THERESA M. PETRONE, RICHARD A. COWEN,

LAWRENCE E. JOHNSON, DAVID E. MURRAY,

LANGDON D. NEAL, WANDA L. REDNOUR, AND

HANNELORE HUISMAN, Defendants.

THE CHICAGO URBAN LEAGUE, CRAIG R. COLLINS,

MARK ALLEN, AND NIKOLAS C. THEODORE,

Plaintiffs,

No. 91 C 5472 sv.

STATE BOARD OF ELECTIONS, JOHN J. LANIGAN,

THERESA M. PETRONE, RICHARD A. COWEN, JOHN

P. DAILEY, LAWRENCE E. JOHNSON, DAVID

E. MURRAY, LANGDON D. NEAL, AND WANDA

L.

REDNOUR, Defendants.

App. 57

MEMORANDUM OPINION AND ORDER

Before KANNE, Circuit Judge, NORGLE, District Judge,

and CONLON, District Judge.

Per Curiam. Various plaintiffs and intervenors in this

consolidated action regarding the remapping of Illinois con-

gressional districts following the 1990 census now move

pursuant to Fed. R. Civ. P. 59e) to modify judgment to

permit the awarding of attorneys’ fees and costs under

42 U.S.C. §§ 1973l(e) and 1988.

BACKGROUND

On November 7, 1991, final judgment was entered in

these consolidated cases. Hastert v. State Board of Elec-

tions, No. 91 C 4028, slip op. (November 7, 1991), Judgment

was entered in favor of the Hastert, Nieves, Collins, Rose-

brook, and Chicago Urban League plaintiffs to the extent

those parties requested that the then-existing Illinois con-

gressional district plan be declared null and void. Id. slip

op. at 64. Although each of the parties named the Illinois

State Board of Elections and its members as the sole de-

fendants in the separately filed actions, the Board did not

possess the authority to provide plaintiffs with the relief

they sought. Additionally, the Board did not dispute plain-

tiffs’ contentions that population changes represented in

the 1990 census rendered unconstitutional the existing con-

gressional district plan implemented by federal court order

following the 1980 census. See In re Congressional Dist.

Reapportionment Cases, No. 81 C 3915, slip op. (N.D. Ill.

Nov. 23, 1981). However, because the Board of Elections

remained bound to implement the terms of the federal

court order that had created the outmoded congressional

district plan, the Board remained a necessary party to

App. 58°

the present actions. The Board thus served only as a

nominal party and played no active role in the proceed-

ings.

The adversarial circumstances requiring trial before this

three-judge district court panel arose solely from com-

peting redistricting plans submitted by the plaintiffs them-

selves. Thus, this court served as the arena for the prin-

cipally legislative task of redrawing Illinois’ congressional

districts. Only two statewide redistricting plans, the so-

called Hastert and Rosebrook plans, were placed in evi-

dence before the court during the two-day trial held in

early October 1991. The court ultimately ordered the

acoption of the Hastert plan to govern Illinois congres-

sional elections until Illinois congressional districts are

otherwise reapportioned in accordance with law. Hastert,

slip op. at 65. The court also directed that “all parties

to these consolidated cases shall bear their own costs.”

November 6, 1991 Memorandum Opinion and Order at 66.

On November 20, 1991, the Hastert, Nieves and Chicago

Urban League plaintiffs and Scott intervenors moved pur-

suant to Fed. R. Civ. P. 5%e) to modify the judgment

and requested that the court award them fees and costs

as prevailing parties under 42 U.S.C. §§ 1973l(e) and 1988.

The Collins plaintiffs filed a similar motion on November

21, 1991. On November 27, 1991, the Harold Washington

Party/Savage intervenors separately moved to become ad-

ditional parties to the Hastert motion to modify judgment.

DISCUSSION

Various plaintiffs and intervenors move pursuant to Fed.

R. Civ. P. 59%e) to amend the November 7, 1991 judg-

meat of the court to permit the award of attorney’s fees

App. 59

under 42 U.S.C. §§ 1973l(e) and 1988: Ordinarily, a re-

quest for fees is a collateral issue to the main cause of

action. See White v. New Hampshire Dep’t of Employ-

ment Security, 455 U.S. 445, 451 (1982). However, this

court’s express order directing the parties to bear their

own costs means that plaintiffs’ requests for fees neces-

sarily constitute a Rule 59e) motion to alter or amend

judgment. To be valid, a Rule 5X%e) motion must be served

“not later than 10 days after entry of the judgment.” Fed.

R. Civ. P. 59e). The Harold Washington Party/Savage

intervenors moved to join the present Rule 5%e) motions

on the thirteenth working day, exclusive of weekends and

holidays, after entry of judgment. Accordingly, the mo-

tion of the Harold Washington Party/Savage plaintiffs is

denied as untimely. The court does have jurisdiction over

the timely-filed Rule 59%e) motions of the remaining mov-

ing plaintiffs.

Under 42 U.S.C. § 1973l(e), a court “‘in its discretion,

may allow the prevailing party ...a reasonable attor-

ney’s fee as part of costs” in “any action or proceeding

to enforce the voting guarantees of the fourteenth or

fifteenth amendment.” 42 U.S.C. § 1973l(e). Under 42

U.S.C. § 1988, which was patterned in part upon the fee

provision contained in § 1973U(e), see Hanrahan v. Hamp-

ton, 446 U.S. 754, 758, n.4 (1980), a court may permit a

similar award to a “prevailing party” in a suit to enforce

the provisions of 42 U.S.C. § 1988. 42 U.S.C. § 1988. In

enacting both of these statutes, Congress directed that

prevailing parties “should ordinarily recover an attorney’s

fees unless special circumstances would render such an

award unjust.” S. Rep. 925, 94th Cong., Ist Sess. 40

(1975), reprinted in 1975 U.S. Code Cong. & Admin. News

774, 807 (citation omitted) (addressing § 1973l(e)) (“S. Rep.

925”); S. Rep. 1011, 94th Cong., 2d Sess. 4 (1976), re-

App. 60

printed in 1976 U.S. Code Cong. & Admin. News 5908,

5912 (citation omitted) addressing § 1988) (“‘S. Rep. 1101’).

See also Hensley v. Eckerhart, 461 U.S. 424, 429 (1983)

(citation omitted).!

The first question to be answered in considering plain-

tiffs’ motions is whether the various movants are pre-

vailing parties within the meaning of the fee statutes.

‘“‘ {Pllaintiffs may be considered “prevailing parties” for

attorney’s fees purposes if they succeed on any signifi-

cant issue in litigation which achieves some of the bene-

fit the parties sought in bringing suit.’ ”” Hensley, 461 U.S.

at 433, quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79

(1st Cir. 1978). All of the movants contend that they pre-

vailed on what they characterize as the significant issue

of the unconstitutionality of the 1981 congressional dis-

tricting plan due to population changes reflected in the

1990 census.

The moving plaintiffs are correct only in the technical

sense that this court declared the previous congressional

districts null and void. However, the issue of the constitu-

tionality of the previous congressional districts was never

in dispute. Indeed, after filing their respective complaints,

none of the plaintiffs offered more than a passing refer-

ence to this subject; the unconstitutionality of the 1981

plan was dispensed with in a perfunctory footnote in the

court’s memorandum opinion. See Hastert, slip op. at 14

n.7. Fee claims cannot be reasonably justified on this

basis. Thus, we turn to the various alternative arguments

offered by the respective plaintiffs.

1 Because §§ 1973U(e) and 1988 contain nearly identical language

and are driven by similar congressional purposes, courts construe

the two statutes similarly. See e.g., Kirksey v. Danks, 608 F. Supp.

ar at (S.D. Miss. 1985); cf. Hensley v. Eckerhart, 461 Us.

at n.7.

waa. tiled

App. 61

The principal issue in litigation during these proceed-

ings involved the determination of which proposed plan

for the entire State of Illinois best met constitutional and

statutory criteria. All parties agreed that the new con-

gressional district map should contain four minority dis-

tricts—one Hispanic and three African-American super-

majority districts. However, no prior Illinois congressional

district map had contained an Hispanic super-majority con-

gressional district. The creation of a super-majority dis-

trict for the Hispanic “language minority” community

residing in the Chicago area therefore required special

consideration despite the agreement among the parties.

Thus, the determination of an Hispanic super-majority dis-

trict is also properly viewed as a significant issue in litiga-

tion.

The Collins plaintiffs assert prevailing party status in

part because the configuration of the First and Seventh

Congressional Districts contained in the Hastert plan

adopted by the court closely approximated the configura-

tion of those same districts advanced by the Collins plain-

tiffs. This assertion entirely disregards the fact that the

Collins plaintiffs ultimately adopted the losing plan ad-

vanced by the Rosebrook plaintiffs. Moreover, the Col-

lins plaintiffs devoted their efforts at trial exclusively to

the issue of the placement of the small geographical area

comprising Chicago’s Second Ward. Not only were the

Collins plaintiffs’ arguments on this issue ultimately re-

jected, but they also were found to be tangential to the

proper scope of the court’s inquiry. Hastert, slip op. at

64. The Collins plaintiffs therefore do not constitute a

“prevailing party” for the purposes of §§ 1973U(e) and

1988.

The Scott intervenors introduced themselves to these

proceedings on September 30, 1991, just over a week be-

App. 62

fore trial, for the limited purpose of addressing the con-

figuration of a relatively small geographic area in the

vicinity of East St. Louis, Illinois, contained in one of the

pre-trial Hastert plans. The Scott intervenors had barely

finished introducing themselves to these proceedings when

they stated at the October 3, 1991 pre-trial conference

that they had reached an accommodation with the Hastert

plaintiffs. The Scott intervenors further stated that they

would neither participate in these subsequent proceedings

nor would they formally endorse or object to the plans

to be offered in evidence at trial. Placed in the context

of arduous and complicated expedited proceedings con-

ducted to review only redistricting plans for the entire

state, the Scott intervenors’ fleeting presence to address

their concerns regarding a tiny fraction of the state, their

neutral stance regarding the merits of the principal issue

to be litigated and their absence from the trial proceed-

ings compel the conclusion that they do not constitute a

statutory “prevailing party” with respect to a “signifi-

cant issue in litigation.” Hensley, 461 U.S. at 433.

The Chicago Urban League plaintiffs, like the Collins

plaintiffs and Scott intervenors, focused their attention on

a small portion of the state. In addition to seeking the

perfunctory declaration voiding and nullifying the 1981

congressional districts, the Chicago Urban League plain-

tiffs sought implementation of their own proposed plan

for the four minority districts. The Chicago Urban League

plan closely tracked the Hastert configuration of the mi-

nority districts. However, similarities to the final Hastert

plan notwithstanding, the Chicago Urban League plain-

tiffs chose to proceed on the basis of their own separate

map. Moreover, the Chicago Urban League did not ad-

dress the merits of their proposal within the larger con-

text of the adoption of a new state-wide plan, the prin-

App. 63

cipal issue before the court. Thus, although the court char-

acterized the Chicago Urban League map as effectively

adopting the Hastert configuration of certain African-

American super-majority districts, see Hastert, slip op. at

62, the court did not adopt the separate Chicago Urban

League plan. Therefore, the Chicago Urban League plain-

tiffs are not a “prevailing party” on any significant issue.

The remaining movants, the Hastert and Nieves plain-

tiffs, are “‘prevailing parties” for purposes of § 1973l(e)

and 1988. This court ultimately adopted the congressional

district plan submitted by the Hastert plaintiffs. The

Nieves plaintiffs formally adopted the Hastert plan and

clearly played a critical role in its development. Indeed,

the pre-trial activities of both the Hastert and Rosebrook

plaintiffs involved attempts to satisfy the Nieves plain-

tiffs’ goal of establishing Illinois’ first Hispanic super-

majority district. Additionally, the Nieves plaintiffs pro-

vided the only truly substantive evidence and legal analysis

regarding the establishment of an Hispanic super-majority

district. Thus, the adoption of the Hastert plan rendered

both the Hastert and Nieves plaintiffs prevailing parties

on the significant issues in litigation.

As noted above, prevailing parties should ordinarily

recover fees except where “special circumstances” would

render a fee award “unjust.” Hensley, 461 U.S. at 429.

Two factors have been considered in determining “‘if a

case involves ‘special circumstances’ that would make an

award ‘unjust’: (1) whether allowing attorney’s fees in a

particular case would further the congressional purpose

in adopting the [fee] Acts, and (2) the balance of the

equities.” Seattle School Dist. v. Washington, 633 F.2d

1338, 1348 (9th Cir. 1980) (citations omitted), aff'd, 458

U.S. 457 (1982).

App. 64

The principal congressional purpose behind the enact-

ment of the attorneys’ fees provision of §§ 1973/(e) and

1988 is reflected in Congress’ observation that “(iin many

cases arising under our civil rights laws, the citizen who

must sue to enforce the law has little or no money with

which to hire a lawyer.” S. Rep. 1011 at 2, reprinted in 1976

U.S. Code Cong. & Admin. News at 5910; see also S. Rep.

925 at 43 & n.47, reprinted in 1975 U.S. Code Cong. &

Admin. News at 809-10. As a result, fee awards are often

“an essential remedy if private citizens are to have a

meaningful opportunity to vindicate the important Con-

gressional policies” embodied in civil rights legislation. Jd.;

see also S. Rep. 925 at 41, reprinted in 1975 U.S. Code

Cong. & Admin. News at 808. Congress’ primary purpose

in providing attorney’s fees in civil rights litigation,

therefore, was “to eliminate financial barriers to the vindi-

cation of constitutional rights” and thereby “stimulate

voluntary compliance with the law.” Seattle School Dist.,

633 F.2d at 1348 (citation omitted). Awarding fees to the

Hastert and Nieves plaintiffs would not advance this con-

gressional purpose.

The Hastert plaintiffs collectively comprise the entire

Republican Party contingent of the current Illinois con-

gressional delegation. The Nieves plaintiffs include in their

ranks two Chicago aldermen, an Illinois state senator and

other community leaders. Plaintiffs therefore do not ap-

pear to be drawn from the ranks of the disempowered

and financially disadvantaged citizenry that Congress had

in mind when enacting §§ 1973/(e) and 1988. The same

observation applies to various other plaintiffs in these con-

solidated proceedings. For instance, the principal Collins

plaintiffs are two Democratic Party members of the IIli-

nois congressional delegation. Additionally, it appeared

that the Rosebrook plaintiffs acted as nominal plaintiffs

App. 65

on behalf of the Democratic Party and various other

Democratic members of the current Illinois congressional

delegation.

The identity of the plaintiffs in this consolidated action,

particularly the principal plaintiffs, suggests that plain-

tiffs merely shifted the legislative lobbying process that

typically attends congressional redistricting to a federal

judicial arena. To the extent this move was necessary,

blame must be traced in part to the unwillingness of many

of the parties to this action, in addition to their state leg-

islative counterparts, to grapple with the issue of congres-

sional redistricting in its intended arena, the state legisla-

ture. The present action did not involve a review of the

constitutionality of a state-endorsed plan. Instead, the real

issues in dispute involved arguments over how Illinois’

congressional district lines should be drawn. That issue

often involved parochial interests and partisan political

concerns that are typically legislative matters.

Plaintiffs would have had to bear their own costs had

they fully pursued the redistricting process in the state

legislature. It would be inequitable to shift the burden

of bearing the costs for plaintiffs’ lobbying efforts to the

State of Illinois and thus the taxpayers merely because

the parties moved the pursuit of their political interests

to a federal court under the civil rights laws. According-

ly, the balance of equities presents special circumstances

warranting a denial of a fee award.

These observations are not meant to detract from the

admirable efforts undertaken by the various plaintiffs once

the issue of congressional redistricting was moved to this

forum. We merely point out the consequences of the IIli-

nois legislature’s failure to formulate congressional redis-

tricting plans over the years. See Hastert, slip op. at 13

& n.6. The admirable work of the parties in the present

App. 66

action more appropriately should have been carried out

in the halls of the state legislature. The prevailing par-

ties should not now receive a fee award for expenses that

they would not have been able to recoup had they re-

solved their differences in the legislative forum.

One final administrative matter requires our attention.

On July 31, 1991, the court ordered the immediate publi-

cation of notice of these proceedings in daily newspapers

around the State of Illinois. The published notice invited

participation by any interested group or individual. At the

time the court issued its order, the Hastert and Nieves

actions had been filed and consolidated. The Rosebrook

and Collins plaintiffs had filed their separate related ac-

tions, with consolidation following soon after. To achieve

immediate compliance with the court’s notice order, the

Hastert plaintiffs undertook the administrative and finan-

cial burden of publish> g the required notice. The Hastert

plaintiffs now seek p irtial reimbursement for the costs

of the necessary courtesy it extended to the other plain-

tiffs. The costs of the required notice should be divided

equally among the Hastert, Nieves, Rosebrook and Collins

parties. Publication of notice was ordered to advance the

disposition of the claims of these plaintiffs who had filed

the only claims at the time notice of publication was

ordered.

CONCLUSION

Plaintiffs’ Fed. R. Civ. P. 59(e) motions to amend or

alter judgment to permit an award of attorney’s fees is

denied. The costs of notice of publication ordered by this

court on July 31, 1991 shall be divided equally among the

Hastert, Nieves, Rosebrook and Collins plaintiffs.

January 17, 1992

App. 67

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

Case Number: 91 C 4028 Date: January 21, 1992

Name of Assigned Judge: SUZANNE B. CONLON

Case Title: HASTERT et al -v- STATE BOARD

OF ELECTIONS et al

* KK Ke K *

DOCKET ENTRY:

* * K K KX *

(10) & [Other docket entry] The Rosebrook plaintiffs’

motion to reconsider is denied as moot. See memo-

randum opinion and order dated January 17,

1992.

/s/ SUZANNE B. CONLON

* * KK K

App. 68

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Case Number: 91 C 4028 Date: January 7, 1992

Name of Assigned Judge: Judge Suzanne Conlon

Case Title: Dennis J. Hastert v. State

Board of Elections, et al.

MOTION: Plaintiff, Rosebrook’s Motion for Leave to File

Their Petition for Attorney’s Fees and Expenses and Sup-

porting Brief Pursuant to Local Rule 46

DOCKET ENTRY:

* * Ke Ke K *

(2) & [Other docket entry:]

Motion is denied as untimely.

/s/ SUZANNE B. CONLON

* * * * K *

App. 69

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

Case Number: 91 C 4028 Date: December 27, 1991

Name of Assigned Judge: Suzanne B. Conlon

Case Title: Dennis J. Hastert, et al. v.

State Board of Elections

MOTION: Rosebrook Plaintiffs’ Motion to Alter or Amend

Judgment

DOCKET ENTRY:

* * KK *K *

(10) & [Other docket entry]

The Rosebrook plaintiffs’ motion to alter or

amend judgment is denied as moot. See Hastert,

et al. v. State Board of Elections, 91 C 4028,

Memorandum Opinion and Order of November

6, 1991 at 37 (“The difference between the two

plans is minimal’ with respect to the proposed

Hispanic districts).

/s/ SUZANNE B. CoNLON

* * * K * *