Opinion
Nos. 74 C 3268, 75 C 3295
March 29, 2002
ORDER
After more than two decades of litigation, which saw two § 1983 class actions filed against the City of Chicago ("City) in 1974 and 1975, a consent decree in 1982, numerous petitions for enforcement, and a Seventh Circuit modification of the decree in 2001, the parties in these two cases now ask the court to award them costs and/or attorney's fees for their legal work since 1994. There are two classes of plaintiffs: one represented by the Alliance to End Repression ("Alliance plaintiffs") and the other represented by the ACLU ("ACLU plaintiffs"). The Alliance plaintiffs seek attorney's fees totaling $1,532,763.49 as well as $35,422.84 in costs for their attorneys' work from 1994 to 2001. The ACLU plaintiffs seek payment for the legal work performed during the same time period, amounting to $341,497.50 in attorney's fees and $9,555.23 in costs and expenses. On the other hand, defendant City has submitted two bills of costs: one for its successful defense of plaintiffs' petition for enforcement in 1997, totaling $18,388.38; and another for its successful motion to modify the consent decree in 2001, totaling $1,528.91. The issues raised in each party's requests for payment are quite similar. Therefore, the court will consider them together.
Background
In 1982, the parties entered into a consent decree, which regulated intelligence activity by the Chicago Police Department. In 1997, the City filed a motion to modify the decree, claiming that it had fully complied with its provisions and that the scope of the decree should be diminished. Both the Alliance and ACLU plaintiffs opposed modification. In response to the City's claim of full compliance, the Alliance plaintiffs also filed an enforcement petition ("DNC petition"), alleging that the City violated the decree in 1996 because of police misconduct during the 1996 Democratic National Convention ("DNC"). After a motion for summary judgment by the City and a bench trial, the Alliance plaintiffs lost on each count in their petition. On March 2, 2001, after then-District Judge Williams had denied the City's motion to modify the consent decree, the Seventh Circuit reversed, granting the motion in its entirety.
The parties have each filed a bill of costs and/or a petition for attorney's fees with respect to some or all of the following legal actions: (1) Alliance plaintiffs' failed DNC petition; (2) the City's motion to modify the consent decree; (3) "other monitoring"; and (4) the attorney's fees litigation. The Alliance plaintiffs seek fees and costs regarding all four actions. The ACLU plaintiffs seek fees and costs with respect to all but the DNC petition. Defendant City has submitted bills of costs regarding only its motion to modify and the Alliance plaintiffs' DNC petition.
Discussion
The Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, provides that in federal civil rights actions, "the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." Rule 54(d) provides that unless otherwise prohibited by statute, "costs other than attorney's fees shall be allowed as of course to the prevailing party unless the court otherwise directs." Fed.R.Civ.P. 54(d)(1). In addition, the Supreme Court's decision in Pennsylvania v. Delaware Valley Citizen's Council for Clean Air, 478 U.S. 546, 559 (1986), sanctions the award of reasonable attorney's fees under § 1988 for certain post-judgment monitoring of consent decrees. See also Alliance to End Repression v. City of Chicago, No. 74 C 3268, 1994 WL 86690, at *2 (N.D.Ill. Mar. 15, 1994) (Alliance I).
It is clear that each of plaintiffs' disputed legal efforts was ultimately unsuccessful in court. Therefore, defendants argue, plaintiffs should be awarded no attorney's fees at all. If the court viewed plaintiffs' recent litigation failures in isolation, defendants would be correct. However, in post-consent decree litigation, courts reject arguments that "would have us scalpel out attorney's fees for every set-back, . . . regardless of its relationship to the ultimate disposition of the case." Jenkins v. Missouri, 127, F.3d 709, 718 (8th Cir. 1997). "If the plaintiffs' attorneys in extended civil rights cases must succeed on every matter they litigate, they are likely to be less vigorous in their representation of the class." Id. Thus, plaintiffs' lack of success on specific post-consent decree legal proceedings does not necessarily bar them from recovering attorney's fees. Joseph A. v. New Mexico Dep't of Human Servs., 28 F.3d 1056, 1059 (10th Cir. 1994). However, plaintiffs must still meet certain threshold requirements to establish their entitlement to fees.
The Supreme Court essentially set forth a two-step process for determining attorney's fees under § 1988: (1) determine who is the prevailing party; and (2) determine the reasonable fees to be awarded. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). However, with respect to attorney's fees sought for legal work performed by a prevailing party after a consent decree is issued, these requirements are applied differently. In Delaware Valley, 478 U.S. at 559, the Supreme Court held that "the work must be `useful and of a type ordinarily necessary' to secure the final result obtained from the litigation." See also Alliance I, 1994 WL 86690, at *3. In other words, post-decree monitoring and enforcement must be useful and necessary to ensure compliance with the consent decree. Id. Some courts refer to this as the "useful and necessary" standard.
Some courts find it necessary to draw a legal distinction between "monitoring" and "enforcement" of a consent decree in this context, see Rolland v. Cellucci, 151 F. Supp.2d 145 (D.Mass. 2001), but that is often when "the settlement agreement [or consent decree] draws a clear line between monitoring and enforcement." Id. at 156. In this case, the consent decree makes no distinction between monitoring and enforcement. Rather, the decree remains silent on the issue of plaintiffs' rights and obligations with respect to monitoring the decree, except to say that "[a]pplication to enforce such provisions or to impose punishment for any such violation may be presented to the Court by any person affected by the conduct complained of." (Consent Decree, Alliance Pls.' Ex. 31 at 36 ¶ II.A.1.) This court finds this silence relevant, but does not conclude that it means that the parties therefore intended no monitoring by plaintiffs, no enforcement by the court, and no reimbursement by the City. The past litigation in this case, along with the numerous attorney's fee awards, indicates otherwise. Cf. Alliance II, 2000 WL 1367999, at *5 (observing that plaintiffs are entitled to attorney's fees for enforcement petitions against the FBI).
The Seventh Circuit has not discussed the "useful and necessary" standard as articulated in Delaware Valley. The handful of courts in other circuits that have applied it seem to approach the standard variously. Nevertheless, this court has managed to glean some common principles. It appears that in post-decree cases such as this one, the "useful and necessary" standard articulated in Delaware Valley overlaps with the "reasonable fees" requirement set forth in Hensley. See, e.g., Jenkins, 127 F.3d 709 (holding that necessity and usefulness is a factor in assessing the reasonableness of a fee for post-judgment litigation in desegregation case); Joseph A., 28 F.3d at 1059 (same). However, it is clear that the standard is a threshold requirement; the court must conclude that each post-decree litigation effort was useful and necessary in order for plaintiffs to receive attorney's fees at all. Delaware Valley, 478 U.S. at 559; Assoc. for Retarded Citizens v. Schafer, 83 F.3d 1008, 1010-11 (8th Cir. 1996).
As discussed below, more than just "reasonableness" must be considered when deciding whether plaintiffs' efforts were useful and necessary. See, e.g., Jenkins, 127 F.3d at 718. Rather, the court should also consider what benefit, if any, plaintiffs' counsel achieved in taking the position that they did. See, e.g., Joseph A., 28 F.3d at 1061; cf. Stewart v. Gen. Motors Corp., 756 F.2d 1285, 1294 (7th Cir. 1985). In addition, the court should consider whether plaintiffs' counsel's efforts were "defensive, seeking to preserve relief obtained earlier, or offensive, seeking to augment what had already been approved." Jenkins, 127 F.3d at 719 (citing Ustrak v. Fairman, 851 F.2d 983, 990 (7th Cir. 1988)). If plaintiffs clear the hurdles these tests represent, they are entitled to at least some attorney's fees.
The court then determines the reasonable amount of fees to be awarded. In this determination, the court considers plaintiffs' degree of success, both overall and on each particular legal matter. See, e.g., Jenkins, 127 F.3d at 718. Therefore, in this case, for each disputed substantive legal action (i.e., motion to modify, DNC petition, and other monitoring), this court will determine: (1) who is the prevailing party; (2) if plaintiffs are the prevailing party, whether their post-decree legal efforts were useful and necessary so that they are entitled to attorney's fees at all; and (3) if plaintiffs are so entitled, the amount of reasonable fees that should be awarded. The court will discuss the litigation surrounding attorney's fees when it determines the amount of reasonable fees to award.
I. Prevailing Party Status
Under both § 1988 and Rule 54(d), a party is not entitled to fees or costs from the other party unless the party seeking fees is the "prevailing party." See also Hensley, 461 U.S. at 433. There is no dispute that both the Alliance and ACLU plaintiffs are the prevailing parties in this litigation as a result of the 1982 consent decree. However, the City argues that neither plaintiff can be considered a prevailing party for any of their unsuccessful legal work since the entry of the consent decree.
The specific issue is whether, fifteen years after the parties entered into a consent decree, in which the plaintiff was the prevailing party in the litigation that gave rise to the consent decree, a plaintiff is still a "prevailing party" in its unsuccessful litigation efforts in connection with issues of enforcing and modifying the consent decree. "The question is whether the nature of the post-decree litigation warrants a separate analysis of the otherwise established `prevailing party' status." Plyler v. Evatt, 902 F.2d 273, 280 (4th Cir. 1990). The threshold test is similar to that set forth in Hensley: whether the unsuccessful legal work is related to the litigation that made plaintiffs prevailing parties. 461 U.S. at 440. On the specific issue of unsuccessful post-decree litigation, the question is "whether the issues in the post-judgment litigation are inextricably intertwined with those on which the plaintiff prevailed in the underlying suit or whether they are distinct." Jenkins, 127 F.3d at 717. Put another way, the issues presented by the two proceedings must "involve the same common core of facts or related legal theories." Plyler, 902 F.2d at 280. Post-decree efforts are not related to the underlying litigation when they involve issues and claims "distinctly different from" those in the original litigation. Willie M. v. Hunt, 732 F.2d 383, 386 (4th Cir. 1984). "Ultimately, determinations of relatedness of claims and the quality of the overall results are not reached through application of any precise rules or formulae, but rather through an equitable judgment of the district court exercising discretion in light of the concerns expressed in Hensley." Plyler, 902 F.2d at 280.
At the outset, the court notes that any litigation brought under the consent decree is presumably related to the litigation that gave rise to the decree in the first place. In the decree, the parties agreed to specific restrictions on the Chicago Police Department's investigation of First Amendment conduct. Any actions brought pursuant to the decree that involve those legal issues are therefore related, because they are "directed toward the protection of rights originally and unambiguously vindicated in the consent decree." Id. If plaintiffs' enforcement petitions or the City's motion to modify were unrelated to the consent decree, those claims would have to have been brought as independent actions. Indeed, the court has found very few cases in which courts have concluded that unsuccessful litigation brought pursuant to a consent decree was unrelated. See, e.g., Schafer, 83 F.3d at 1011 (holding that because plaintiffs "had every reason to know" that the State was in compliance with the decree, but still "fought the State at every turn," their enforcement petition constituted an "assertion of new claims for relief"); Willie M. v. Hunt, 732 F.2d 383, 386 (4th Cir. 1984) (holding that plaintiffs' unsuccessful litigation regarding the scope of the plaintiff class was unrelated to the underlying civil rights litigation).
A. Alliance Plaintiffs' DNC Petition
Defendant City initially argues that the Alliance plaintiffs deserve no fees or costs regarding the DNC enforcement petition because they were not even named parties to that litigation. The Alliance plaintiffs vehemently disagree, arguing that they were, in fact, named parties. The court agrees with plaintiffs; a brief review reveals that the Alliance plaintiffs, not just their counsel, were listed as parties to the enforcement petition. Alliance to End Repression v. City of Chicago, Nos. 74 C 3268, 75 C 3295, 2000 WL 1898594, at *1 (N.D.Ill. Dec. 22, 2000) (Alliance III) (noting that the enforcement petition was filed by plaintiffs including the Alliance named plaintiffs). Thus, the court will consider whether the DNC petition was related to the consent decree.
The Eleventh Circuit addressed a similar issue in Turner v. Orr, 785 F.2d 1498 (11th Cir. 1986), a Title VII case. The court held that the plaintiff remained a prevailing party as defined by 42 U.S.C. § 2000e-5k even on its unsuccessful efforts to enforce a previously entered consent judgment. "Efforts to monitor compliance with a consent judgment cannot be severed from the matters upon which the plaintiff prevailed by obtaining the consent judgment." Id. at 1503. The court concluded that "the post-judgment efforts of the [plaintiffs] were directed toward the protection of those rights originally vindicated by the consent judgment, and these efforts of monitoring and enforcement qualify the [plaintiffs] as a `prevailing party' for purposes of receiving payment for expenses reasonably incurred in these efforts regardless of the outcome of each individual post-judgment effort involving litigation." Id. at 1504; cf. Miller v. Carson, 628 F.2d 346 (5th Cir. 1980) (holding that plaintiffs, who were prevailing parties after an initial injunction, remained prevailing parties on unsuccessful post-judgment motions "directed towards remedying the constitutional wrongs [that were the subject of the injunction]").
Likewise, this court concludes that the Alliance plaintiffs' post-decree DNC petition, although unsuccessful, was directed toward the protection of those rights originally vindicated by the 1982 consent decree. Apparently, the Alliance plaintiffs filed the DNC petition in response to the City's motion to modify the consent decree. Specifically, when the City filed its motion to modify the decree on March 12, 1997, it cited as one of four grounds for modification the fact that the Chicago Police Department had not violated the decree. The Alliance plaintiffs then filed the DNC enforcement proceeding to counter the City's claim, "based on numerous eye-witness accounts of recent, repeated substantive violations." (Alliance Pls.' Reply at 11.) This is not a situation, as described in Ass'n for Retarded Citizens of North Dakota v. Schafer, in which the plaintiffs "fought the [City] at every turn," despite having every reason to know that the City was in full compliance with the decree. 83 F.3d at 1011.
For the court's discussion of the motion to modify, see infra Section I.B.
The court cannot conclude that the DNC enforcement petition was "distinct in all respects from [plaintiffs'] successful claims." Hensley, 461 U.S. at 440. Both actions involved accusations of police interference with First Amendment activity. More importantly, both actions contained questions of whether the Chicago Police Department violated the rights specifically protected by the ultimate consent decree. Of course, plaintiffs must concede that the facts which gave rise to the DNC petition cannot be the same facts on which the consent decree was based years ago. However, this does not render the proceedings "distinct in all respects," Hensley, 461 U.S. at 440. The enforcement petition's entire focus was to measure recent police conduct according to the dictates of the consent decree. The court holds that the Alliance plaintiffs maintain their prevailing party status with regard to their unsuccessful DNC enforcement petition. It follows inexorably that the City was not the prevailing party, and the court therefore denies its bill of costs with respect to that proceeding. See Fed.R.Civ.P. 54(d).
B. The City's Motion to Modify
The court must initially determine what arguments defendant City is permitted to raise in opposition to the Alliance plaintiffs' fee petition regarding their unsuccessful opposition to the motion to modify. On February 20, 2001, the Alliance plaintiffs and the City signed a Stipulated Agreement Regarding Attorneys' Fee Lodestar ("Lodestar Agreement") in order to expedite resolution of the attorney's fees issue. However, the parties now disagree as to the meaning of the Agreement. The second paragraph of the Agreement provides that the "City's position remains that the Alliance Plaintiffs are not legally entitled to attorney's fees." (Lodestar Agreement at 1.) Thus, the City argues, it is entitled to raise any argument to support this position during the attorney's fees litigation. However, the Agreement also provides that, with respect to part of the Alliance plaintiffs' legal work in opposition to the modification, "the City may argue in opposition to Alliance Plaintiffs' request for attorneys fees . . . only that the lodestar should be reduced or eliminated because of the Alliance Plaintiffs' lack of success." (Id. at 2-3 (emphasis added).) Therefore, plaintiffs argue, the City has relinquished all other arguments, such as whether plaintiffs' opposition was related to the underlying consent decree litigation and whether it was useful and necessary. The City vigorously disagrees. The court agrees with the City on this threshold question, but the victory is short-lived because, as discussed below, the court rejects both of the City's substantive arguments.
For reasons similar to those regarding the DNC petition, the court concludes that plaintiffs' opposition to modification was, in fact, related to the consent decree litigation. The Fourth Circuit considered a remarkably similar issue in Plyler v. Evatt, 902 F.2d 273. In that case, the plaintiff was a prevailing party in civil rights litigation that culminated in a consent decree. The defendant later moved to modify the consent decree. After the district court denied the defendant's motion, the Fourth Circuit reversed, modifying the decree. See id. at 276-77. The plaintiff then requested attorney's fees, to which the defendant objected. The Fourth Circuit held that the plaintiff class remained the prevailing party because the "decision permitting the modification rested substantially on a judgment that the plaintiffs had received `the essence of their bargain' in that the general conditions now exceeded constitutional standards." Id. at 281.
In Balark v. City of Chicago, 81 F.3d 658 (7th Cir. 1996), the Seventh Circuit rejected an argument that plaintiffs who enjoyed a consent decree for ten years should be stripped of prevailing party status when their decree was dissolved. There the City had asked the court to deny all plaintiffs' attorney's fees leading up to the consent decree. "How can one say that the plaintiffs did not prevail when their decree governed the parties' behavior for ten years, and the termination is prospective only?" Id. at 665. Likewise, in this case, the City would have the court deprive plaintiffs of prevailing party status now that the decree has been modified, but after fifteen years of protecting the rights of the plaintiff classes.
In Plyler, 902 F.2d at 281, the Fourth Circuit distinguished a case in which problems in the language of the original settlement prompted plaintiffs to attempt to cure the deficiencies. Willie M., 732 F.2d 383. When the plaintiffs did not succeed, the court refused to award attorney's fees, because the plaintiffs were responsible for the problems in the settlement. Id. In Plyler, on the other hand, "plaintiffs' counsel, obviously successful in negotiating the consent decree, are not seeking to cure its revealed deficiencies, but to preserve its fruits." 902 F.2d at 281. In addition, "plaintiffs' counsel were under clear obligation to make the defensive effort." Id.
The same is true in this case. Plaintiffs' counsel were successful in negotiating a consent decree in 1982 that gave them prevailing party status. Fifteen years later, the City moved to modify that decree, claiming that it was in full compliance. After concluding that modification of the decree was not appropriate, plaintiffs' counsel were "under a clear obligation to make the defensive effort." Id. Plaintiffs were, in fact, successful in the district court, only to lose the battle in the Seventh Circuit. Nevertheless, plaintiffs' position opposing modification was "essential to the preservation of the integrity of the consent decree as a whole." Id.
Defendant City argues that based on the Seventh Circuit's decision to modify the decree, as well as the frequent independent audits of the City's compliance with the consent decree, plaintiffs' monitoring has been rendered unnecessary. Therefore, the City requests this court to eliminate the plaintiffs' role as monitors, which has heretofore been funded by the City, citing Brewster v. Dukakis, 786 F.2d 16, 19 (1st Cir. 1986) (where the circumstances underlying a decree have stabilized, the defendant "should petition the [district] court to relieve it of the burden of paying for private party monitoring"). The court will not decide this issue in this opinion, because the City's request has not been properly filed or briefed by the parties.
In addition, the motion to modify was related to the litigation underlying the consent decree because both actions involved the same legal issues, namely, whether the City had complied with the provisions of the consent decree, and plaintiffs' position was not "distinct in all respects" from the consent decree. Hensley, 461 U.S. at 440. The court concludes that both the Alliance and ACLU plaintiffs are prevailing parties with respect to the City's successful motion to modify the consent decree. The court also concludes that defendant City is not a prevailing party, and therefore denies its bill of costs regarding the modification. See Fed.R.Civ.P. 54(d).
C. Other Monitoring
The parties' references to "other monitoring" generally concern two separate petitions to enforce the consent decree, known by the parties as the Risley petition and the Kass petition. Both plaintiff classes were parties to the Risley petition, but only the ACLU plaintiffs were parties to the Kass petition.
The City argues that neither party should be awarded attorney's fees for its work on the Risley petition because that petition was unsuccessful. In fact, this court dismissed the petition in its entirety because petitioner Risley failed to allege that the City harassed him based on his First Amendment conduct, as required by the consent decree. However, as discussed above, the relevant question is whether the Risley petition was related to the litigation underlying the consent decree. The court concludes that it was. Although the Risley petition was based on new facts, the legal question was whether the City violated Risley's First Amendment rights in the manner prohibited by the consent decree. The fact that plaintiffs failed to prevail on their legal theory does not render the petition "distinct in all respects" from consent decree litigation. Hensley, 461 U.S. at 440. The court holds that plaintiffs remain prevailing parties with respect to the Risley petition.
The City contends that the ACLU plaintiffs deserve no attorney's fees for their work on the Kass petition. The petition was dismissed by the district court because plaintiffs failed to show that Kass suffered injury in fact. Nevertheless, the court holds that the petition was related to the consent decree, in light of the First Amendment issues involved.
II. Necessity and Usefulness of Plaintiffs' Legal Work
The parties disagree as to what is required to show that plaintiffs' post-decree work was useful and necessary. Plaintiffs argue that the question is whether, at the time plaintiffs decided to proceed with their legal work, a reasonable attorney would have done the same thing. The City argues, on the other hand, that the governing standard for the recovery of fees for post-judgment monitoring is not reasonableness, but whether the post-decree monitoring produced "something of benefit to the class." (Defs.' Resp. to Alliance Pls.' Pet. at 14.) Neither party hits the mark, but each comes close. Reasonableness and benefit to the class are each factors to consider when determining whether post-decree legal efforts are necessary and useful.
First, the court should indeed consider the reasonableness of plaintiffs' efforts. The Supreme Court explicitly stated that the post-decree monitoring should be "useful and of a type ordinarily necessary" to secure the final results obtained from the litigation, or to ensure compliance with the consent decree. Delaware Valley, 478 U.S. at 561 (emphasis added). This language suggests that at the time of plaintiffs' legal work, their efforts should have been in the category of those things "ordinarily necessary" to ensure compliance, not that the plaintiffs' efforts must prove "actually necessary." The Eighth Circuit has noted that "courts have not interpreted [the useful and necessary] requirement tautologically, to mean that any unsuccessful efforts were perforce unnecessary, but rather have asked whether the plaintiff's attorneys would have been expected or obliged to take the position they took." Jenkins, 127 F.3d at 718. Indeed, this court considered reasonableness when applying the "useful and necessary" standard in determining attorney's fees in plaintiffs' case against the FBI. Alliance to End Repression v. City of Chicago, Nos. 74 C 3268, 75 C 3295, 2000 WL 1367999 (N.D.Ill. Sept. 21, 2000) (Alliance II). This court held that for post-decree work, plaintiffs were entitled to fees that were reasonable and necessary. Id. at *5; see also Eirhart v. Libbey-Owens-Ford Co., 996 F.2d 846, 851 (7th Cir. 1993) (affirming district court's decision to award attorney's fees for work that "represents a reasonable effort on the part of the class to monitor the decree") (emphasis added); cf. People Who Care v. Rockford Bd. of Educ., Sch. Dist. No. 205, 90 F.3d 1307, 1314 (7th Cir. 1996) ("A court's focus should . . . be upon whether [the attorneys'] actions [in a post-judgment setting] were reasonable.") (emphasis added).
Next, complete success is not a requirement in post-decree proceedings. In an earlier proceeding in this case, then-District Judge Williams rejected a requirement "that a prevailing party prove that all of the work performed was `successful.'" Alliance I, 1994 WL 86690, at *5. Instead, the court held that fees should be awarded if the disputed work was "reasonably related to the claims upon which plaintiffs were definitely successful." Id. (internal quotation marks omitted). Additionally, this court held in plaintiffs' case against the FBI that "plaintiffs' right to fees is not restricted to enforcement petitions on which they are successful." Alliance II, 2000 WL 1367999, at *5.
On the other hand, the court should look for at least some benefit before determining that plaintiffs' efforts were useful and necessary to ensure compliance with the decree or otherwise protect rights. Indeed, in Bond v. Stanton, 630 F.2d 1231 (7th Cir. 1980), the defendants argued that the plaintiffs' efforts in post-summary judgment litigation accomplished nothing of substantial benefit to the class. The Seventh Circuit disagreed, recognizing that "plaintiffs' diligent efforts to secure compliance with the district court's order were effectively catalytic to the state's eventual submission of an acceptable . . . plan." Id. at 1233; see also Joseph A., 28 F.3d at 1061 (recognizing that despite the plaintiffs' failure to secure a contempt order against the defendants, "it may be that the litigation of the contempt motion resulted in auxiliary or overall benefits to plaintiffs that were apparent at the time of the [fees] award"); Stewart v. Gen. Motors Corp., 756 F.2d 1285, 1294 (7th Cir. 1985) (dictum) (rejecting plaintiff's request for attorney's fees for work on meritless contempt petition that provided no benefit to the class). In the previous opinion against the FBI in this case, Judge Williams allowed attorney's fees in part because plaintiffs' efforts proved to be beneficial to the class. Alliance I, 1994 WL 86690, at *6.
This is not to say that the Seventh Circuit or this court subscribes to the "catalyst theory" in determining prevailing party status, as rejected by the Supreme Court in Buckhannon v. West Virginia Dep't of Health and Human Servs., 532 U.S. 598, 610 (2001). Rather, the "catalyst" at issue here aids the court in concluding that already-prevailing plaintiffs have achieved a benefit to the class.
In this case, as discussed below, plaintiffs achieved some success with each of their legal efforts, but that success was very limited. While that may suggest the possibility of unreasonableness, it need not altogether bar recovery. If the court were to withhold fees for all unsuccessful post-decree litigation, then plaintiffs' attorneys would be "likely to be less vigorous in their representation of the class." Jenkins, 127 F.3d at 718. Rather, plaintiffs' lack of success should be more significant when the court determines the reasonable amount of attorney's fees to award.
A. Alliance Plaintiffs' DNC Petition
In the present case, the Alliance plaintiffs' DNC petition did, in fact, create some benefit, despite plaintiffs' ultimate loss at the trial phase. Plaintiffs point out that "the DNC enforcement proceeding resulted in an interpretation of the decree, favored by the Alliance plaintiffs and opposed by the City, that the decree applied to information that is gathered but not recorded, filed or used by the police." (Alliance Pls.' Reply at 12.) Thus, plaintiffs achieved a modest victory. This was not the only benefit, however. In addition, the very filing of the petition had an impact. Plaintiffs point to this court's December 21, 2000 memorandum opinion and order denying plaintiffs' petition. After finding that plaintiffs failed to prove any violation of the consent decree by clear and convincing evidence, this court stated: "This ruling should not be interpreted as a finding that plaintiffs' witnesses did not testify truthfully, or that the incidents underlying their claims did not in fact happen. The ruling is simply a recognition that the conflicting but credible evidence on both sides precludes plaintiffs from establishing their claims by clear and convincing evidence." Alliance III, 2000 WL 1898594, at *16.
The court concludes that the Alliance plaintiffs' enforcement petition was reasonable, useful, and necessary. In the City's motion to modify the decree, the City claimed that it was in total compliance with the 1982 consent decree, and plaintiffs had substantial evidence indicating otherwise, albeit not clear and convincing when considered in light of the City's substantial evidence to the contrary. Therefore, they brought the enforcement action in order to preserve the rights originally protected by the decree. At the time plaintiffs' attorneys were faced with the decision to proceed with the petition, it was reasonable for them to do so. Cf. People Who Care, 90 F.3d at 1314 ("[T]he decision to appeal was not unreasonable at the time it was made.") (emphasis added). Plaintiffs presented a wealth of evidence, including several credible eyewitnesses, whose testimony suggested that the City may have violated the consent decree. The fact that plaintiffs failed to prevail does not bar their entitlement to attorney's fees, although this will be a factor when the court determines the reasonable amount of the fee award, discussed below.
B. The City's Motion to Modify
Both plaintiffs' efforts opposing modification were useful and necessary. First, by successfully opposing the modification in the district court, plaintiffs were able to extend the life of the consent decree. This was a clear, concrete benefit to the class, as plaintiffs were protecting those rights recognized in the original consent decree.
"Another factor that has been considered in deciding whether post-judgment fees were necessary and useful is whether the attorney's activity was defensive, seeking to preserve relief obtained earlier, or offensive, seeking to augment what had already been approved." Jenkins, 127 F.3d at 719 (citing Ustrak, 851 F.2d at 990); see also Schafer, 83 F.2d at 1012 ("A prevailing party who aggressively seeks a greater victory and fails is entitled to a proportionally lesser fee award than a prevailing party who merely defends its victory even if the defense is less than completely successful."). Like the plaintiff class in Plyler, in this case "plaintiffs' counsel were under clear obligation to make the defensive effort." 902 F.2d at 281. One of the City's grounds for modification was that it was in full compliance with the consent decree. Plaintiffs had substantial evidence indicating otherwise. Thus, at the time that the City filed its motion, plaintiffs had an ethical duty to oppose it both in the district court and on appeal. This is so especially in light of plaintiffs' success at the district court level. Therefore, the court holds that plaintiffs' opposition was useful and necessary and that they are entitled to reasonable attorney's fees. Their ultimate lack of success is best considered in the court's determination of the reasonable amount of fees to be awarded.
C. Other Monitoring
The court concludes that in both the Risley and Kass petitions, the plaintiffs' efforts were reasonable and necessary to ensure compliance with the consent decree. First, both actions provided at least some benefit to plaintiffs. In the Risley petition, the district court established a two-year statute of limitations for alleged violations of the decree, and held that the decree governs "investigative activity that `does or foreseeably will' include the collection of information about First Amendment conduct. . . ." Alliance to End Repression v. City of Chicago, Nos. 74 C 3268, 75 C 3295, 2000 WL 1368004, at *3 (N.D.Ill. Sept. 21, 2000). In the Kass petition, despite the district court's dismissal, there was some benefit to plaintiffs, including the district court's holding that (1) law enforcement activity directed toward First Amendment conduct is a sufficient predicate for an enforcement action; (2) the ACLU may participate in any action alleging a decree violation, regardless of harm; and (3) the actual injured party need not join the proceedings as a plaintiff. Although the court dismissed both petitions in their entirety, at the time it was not unreasonable for plaintiffs to file the petitions. Of course, as with the other legal actions, plaintiffs' significant lack of success in each petition is relevant to the court's consideration of the reasonable amount of fees to be awarded.
The City also argues that the Alliance plaintiffs are statutorily limited in the types of expenses they may recover. However, as the Seventh Circuit has noted, "the case law overwhelmingly supports the proposition that `attorney's fee' includes out-of-pocket expenses in preparation for trial." Henry v. Webermeier, 738 F.2d 188, 192 (7th Cir. 1984). The City's argument therefore fails. The court will consider the reasonableness of plaintiffs' expenses when it determines the amount of the fee award.
III. Reasonable Award
"The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley, 461 U.S. at 433. This is called the "lodestar." In this case, plaintiffs must provide evidence supporting the hours worked and the rates claimed. Id. This court must then "exclude from this initial fee calculation hours that were not `reasonably expended.'" Id. at 434 (quoting S.Rep. No. 94-1011, p. 6 (1976)). In requesting attorney's fees, "billing judgment" is just as important as it is in the private sector. Hensley, 461 U.S. at 434 (quotation marks omitted). "Hours that are not properly billed to one's client also are not properly billed to one's adversary pursuant to statutory authority." Id. (quotation marks omitted). Once the lodestar is determined, "[t]here remain other considerations that may lead the district court to adjust the fee upward or downward." Id. One of these considerations is "results obtained," or degree of success. Id.
A. Results Obtained
Despite plaintiffs' arguments, this court cannot ignore the fact that they achieved only nominal, if any, success in each of their post-decree legal efforts. Plaintiffs contend that they should receive all of their attorney's fees, even in their failed efforts to enforce the consent decree or oppose its modification. The court disagrees. This case is not exactly like those found in Plyler and Turner, where plaintiffs were entitled to most or all of their attorney's fees, even for unsuccessful legal efforts, because in those cases the consent decrees expressly provided that plaintiffs' counsel should be awarded attorney's fees for such activities. That is not the case here. Rather, the consent decree in this case is silent on the issue of whether the City should reimburse plaintiffs for fees incurred in either monitoring or enforcing the decree.
The Supreme Court in Hensley held that in complex civil rights litigation, the court must consider "whether the expenditure of counsel's time was reasonable in relation to the success achieved." 461 U.S. at 436. "The district court may attempt to identify specific hours that should be eliminated, or it may simply reduce the award to account for the limited success." Id. at 436-37. There is no reason that these principles should not also apply to plaintiffs' lack of success in post-decree litigation.
In Eirhart, the Seventh Circuit affirmed the district court's award of attorney's fees to the prevailing plaintiff because there was "a reasonable effort on the part of the class to monitor the decree." 996 F.2d at 851. However, earlier in the opinion, the Seventh Circuit observed that "[t]he district court had continuing discretion to award the class attorneys' fees, at least for class counsel's successful efforts to implement the decree." Id. at 850 (emphasis added). In Ustrak, the Seventh Circuit held that "[a] civil rights plaintiff is entitled to fees for successfully defending in the court of appeals a favorable judgment (or fee award) obtained in the district court." 851 F.2d at 990 (emphasis added). Furthermore, "[s]ince the reasonableness of a fee is a function in part of the success achieved by the expenditure, lack of success in obtaining fees or in defending a fee award is certainly material in deciding how large the reimbursement should be." Id. In Dawson v. Pastrick, 600 F.2d 70 (7th Cir. 1979), the Seventh Circuit noted that "[a] party seeking to enforce the rights protected by the [civil rights] statutes . . ., if successful, should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust." Id. at 79 (emphasis added).
Therefore, plaintiffs' success, or lack thereof, during post-decree litigation is still relevant in determining the amount of an attorney's fee award, despite their prevailing party status. See also Jenkins, 127 F.3d at 718 (in post-judgment litigation, "success or failure on the particular matter in question (as opposed to overall success) is still a factor in deciding the reasonableness of the attorney's efforts"); Schafer, 83 F.3d at 1012 ("[T]he relative success factor in the Hensley equation suggests that plaintiffs' fee award must be reduced to an amount that would compensate for [plaintiffs' limited success]."); Joseph A., 28 F.3d at 1060 (rejecting plaintiffs' argument that "because the fees here arose in a post-decree monitoring setting, they are immune from the possibility of reduction under the principles of Hensley").
Plaintiffs argue that as a result of the 1982 consent decree, they have achieved "excellent results," as contemplated by the Supreme Court in Hensley, 461 U.S. at 435. In such a situation, the Supreme Court held, the plaintiff's "attorney should recover a fully compensatory fee." Id. The fee "should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit." Id. Plaintiffs argue that this describes the present case: they achieved excellent results, and so their attorneys should receive all of their reasonable fees, regardless of the outcome of any post-decree litigation. The court disagrees. The reasoning behind the Supreme Court's recognition of "excellent results" was that a prevailing plaintiff "may raise alternative legal grounds for a desired outcome." Id. When the plaintiff receives an excellent result, "the court's rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee. The result is what matters." Id. A petition seeking to enforce a fifteen-year-old consent decree cannot be considered an alternative ground for a desired outcome, which the court may reject or altogether fail to reach. To extend the benefit of achieving an "excellent result" to subsequent enforcement actions would give the successful party an incentive to work inefficiently. Indeed, this court has seen no cases that apply the "excellent results" rationale to post-decree litigation. The court will not do so here.
Plaintiffs' degree of success was different in each of the disputed legal actions. In addition, the reasonableness of plaintiffs' efforts in those actions varied depending on whether plaintiffs were attempting to enforce the consent decree (albeit unsuccessfully) or defending it from an attack by the City. Therefore, after calculating the lodestar, the court will reduce plaintiffs' fee awards due to their lack of success in each legal action, while remaining mindful of the admonition not to induce plaintiffs' attorneys "to be less vigorous in their representation of the class." Jenkins, 127 F.3d at 718.
1. DNC petition
In Alliance I, Judge Williams relied in part on the fact that plaintiffs achieved some benefit in their post-decree efforts in deciding to allow attorney's fees. The court declined to decrease the fees award at all, because the plaintiffs realized some success in their efforts. Specifically, the court found that the parties' negotiations were "productive" and that the plaintiffs' participation in a 1984 audit "resulted in the City rejecting its incorrect `primary focus' analysis." Alliance I, 1994 WL 86690, at *6. The court, in fact, characterized the result of the litigation as "limited success" for the plaintiffs. Id.
This court, however, cannot make the same characterization. Plaintiffs' claims failed. Any auxiliary benefits — the favorable interpretations of the consent decree — resulting from the litigation were minimal. That must be relevant. Indeed, this court has found no case in this circuit in which the plaintiffs achieved such minimal success in a post-consent decree litigation effort and received full compensation for their attorneys' efforts. Cf. Young v. City of Chicago, No. 96 C 4554, 1999 WL 104405, at *1 (N.D.Ill. Feb. 24, 1999) (holding that plaintiff's efforts monitoring a civil rights injunction were not unnecessary because "[w]hile plaintiff did not obtain all that he wished, he was significantly accommodated") (emphasis added), aff'd, 202 F.3d 1000 (7th Cir. 2000). On the other hand, the court has already concluded that it was reasonable for plaintiffs to bring the petition, and that their efforts created at least some benefit to the class. Therefore, the court concludes that the Alliance plaintiffs are entitled to 30% of the lodestar for the DNC petition.
2. The City's motion to modify the decree
In this case, plaintiffs' lack of success opposing the City's motion to modify is less significant than it was with regard to the failed 1997 enforcement petition because plaintiffs were "defending the remedy against attacks." Jenkins, 127 F.3d at 717. This is not a case like the DNC petition, in which the plaintiff "asks for remedial measures that are ultimately denied." Id.; see also Schafer, 83 F.2d at 1012 ("A prevailing party who aggressively seeks a greater victory and fails is entitled to a proportionally lesser fee award than a prevailing party who merely defends its victory even if the defense is less than completely successful."). In addition, plaintiffs were in fact successful at the district court phase of the litigation. This created at least some benefit for the plaintiff class, namely, the preservation of the consent decree's protection, if only until the Seventh Circuit's reversal. Therefore, the court concludes that plaintiffs are entitled to a significantly higher percentage of the lodestar for their efforts opposing the City's motion to modify.
With respect to plaintiffs' efforts on appeal, the Seventh Circuit has recognized the plight of "[a] civil rights plaintiff who[has] won a judgment in the district court" and is faced with defending it on appeal. Ustrak, 851 F.2d at 990. "[W]hen the defendant appeals and the plaintiff incurs expenses in defending against the appeal that are reasonable even though they are not crowned by complete success, ordinarily he should be entitled to reimbursement of those fees; he had no choice but to incur them or forfeit his victory in the district court." Id. In Ustrak, the plaintiff was entitled, prima facie, to reimbursement of his entire fees in the appellate court, "given Ustrak's status as an appellee defending with substantial although not complete success a district court's judgment in his favor." Id. (emphasis added).
In this case, it cannot be said that plaintiffs defended the City's appeal with "substantial" success, since the Seventh Circuit granted the City's motion in its entirety. However, the court is mindful, in this unique post-decree setting, not to discourage plaintiffs' vigorous representation of the class. For these reasons, the court concludes that plaintiffs are entitled to 75% of the lodestar for both their work in the district court and on appeal in opposing the City's motion to modify the consent decree.
3. Other monitoring
Both the Kass petition and the Risley petition were dismissed by the court. Although this court found earlier that plaintiffs did not act unreasonably in bringing the petitions, they achieved little success. Therefore, the court concludes that plaintiffs are entitled to 10% of the lodestar for their work on these petitions. Any work in the monitoring category that did not involve the failed petitions should be reimbursed entirely after the lodestar is calculated.
4. Attorney's fees litigation
"[P]revailing plaintiffs under [Section 1988] are properly entitled to fee awards for time spent litigating their claim to fees." Bond, 630 F.2d at 1235. "[D]enying attorney's fees for time spent obtaining them would dilute the value of a fees award by forcing attorneys into extensive, uncompensated litigation in order to gain any fees." Id. (internal quotation marks omitted). The court concludes that plaintiffs are prevailing parties with respect to the attorney's fees issue. Muscare v. Quinn, 680 F.2d 42, 44, (7th Cir. 1982) ("[Plaintiff] was declared the prevailing party when this court held that he was entitled to an award of attorneys' fees, albeit a smaller one than he had sought."). However, courts also consider limited success, or the "results obtained" factor from Hensley, when determining the fee award resulting from attorney's fees litigation. K.L. v. Edgar, No. 92 C 5722, 2001 WL 184974, at *3 (ND. Ill. Feb. 21, 2001); see also Muscare, 680 F.2d at 45 (holding that the district court did not abuse its discretion in refusing to award attorney's fees for time spent litigating civil rights plaintiff's original claim for attorney fees, where in underlying litigation, plaintiff asked for $41,000 in fees and was awarded only $8,000). On the other hand, the court must remember that the "results" at issue are the plaintiffs' success in establishing their right to attorney's fees, not the results on the merits. K.L., 2001 WL 184974, at *3 (distinguishing Wallace v. Mulholland, 957 F.2d 333, 339 (7th Cir. 1992)). For the reasons discussed above, plaintiffs have not achieved complete success with respect to their attorney's fees litigation. However, they will be awarded a significant fee even after the various lodestar figures are reduced. Thus, the court concludes that plaintiffs are entitled to 50% of the lodestar for their work litigating attorney's fees. The court now turns to the respective lodestars.
B. Lodestar
A problem arises here. The Alliance plaintiffs have submitted voluminous briefs and exhibits to support their petitions for attorneys fees, but they have failed to provide information that would aid this court in determining the lodestar for each of the disputed legal actions. As evidence of their attorneys' reasonable hours, plaintiffs provided declarations by each attorney, complete with a billing sheet for dates ranging from 1996 to the present. (See Decls. of Richard Gutman, Edward Koziboski, Lawrence Jackowiak, Alliance Pls.' Atts. B, C, D.) In addition, each attorney provided a notation next to each billing entry indicating a category of work. The categories, as stipulated by the parties, are: (1) work applicable only to the City of Chicago's motion to modify the consent decree; (2) work applicable to both the City of Chicago's motion to modify and the DNC enforcement petition; (3) work applicable only to the DNC enforcement petition; (4) work on other monitoring; and (5) work on attorney's fees. (Lodestar Agreement at 1-2.)
However, neither Mr. Gutman nor Mr. Jackowiak provided subtotals of their hours for any of the categories. Presumably, plaintiffs expected this court to sift through their entries (52 pages in Mr. Gutman's case) and add up their subtotals in order to determine the lodestar for each category. Or, plaintiffs did not expect that this court would deem it necessary to determine separate lodestars for each category. Plaintiffs are wrong in either case. Because this court has concluded that it must consider plaintiffs' lack of success in each particular legal action and reduce accordingly, the court must have a starting lodestar figure for each category. The City attempted to provide its own determinations of plaintiffs' subtotals. While the City is to be commended for its effort, this does not completely solve the problem, as explained below.
Significantly, the City did not raise all of its objections to the reasonable expenditure of the attorneys' hours listed for Category 2, work applicable to both the motion to modify and the DNC petition. An explanation of the Lodestar Agreement is necessary here. The Agreement states: "Each Alliance Plaintiffs' time entry designated Category 2 . . . shall be divided into two equal parts, one of which shall be recategorized as Category 1 (work applicable only to the City of Chicago's motion to modify the consent decree) and the other shall be recategorized as Category 3 (work applicable only to the [DNC] enforcement petition)." (Lodestar Agreement at 2.) This is an important point because in the Agreement, the City relinquished its right to object to Category 1 work performed through December 28, 1999 on any basis other than "lack of success." As a result, those Category 2 hours reassigned to Category 1, which involved work through December 28, 1999, would be immune from any arguments by the City that the hours billed were "excessive, redundant, or otherwise unnecessary." Hensley, 461 U.S. at 434.
The City seems to have misinterpreted the Lodestar Agreement, apparently assuming that the Category 2 time entries were to be randomly divided into two equal groups, with some assigned to Category 1 and the others to Category 3. But this is not so. Rather, the Agreement provides that each time entry must be divided. The City's misinterpretation is significant because the City believed (mistakenly) that it was "impossible to discern what hours of the hours initially categorized as Category 2 and added to Category 3" were vulnerable to an argument that they were not reasonably expended. (Defs.' Resp. to Alliance Pls.' Pet. at 20.) Thus, the City failed to raise any objections to plaintiffs' Category 2 billing entries. Although the City was wrong, the mistake is understandable, especially in light of its attempts to interpret the Alliance plaintiffs' jumbled billing statements. Plaintiffs' lack of organization played at least some role in the City's error.
Furthermore, the ACLU plaintiffs provided even less help than the Alliance plaintiffs. On the billing sheets provided by the ACLU plaintiffs, there is absolutely no attempt to categorize their work into the separate legal actions recognized in this opinion. From this record, the court is unable to calculate the starting lodestar figures for each disputed legal action. Despite the Supreme Court's warning that "[a] request for attorney's fees should not result in a second major litigation," Hensley, 461 U.S. at 437, more is required, as specified below.
Another issue is whether and how much interest should be awarded. The City filed a Motion to Cite Additional Authority on November 30, 2001. In the motion, the City cites People Who Care v. Rockford Bd. of Educ., 272 F.3d 936 (7th Cir. 2001), and objects to the Alliance plaintiffs' request to compound interest on their attorney's fees award. Specifically, the City claims that "the interest calculations asserted by Alliance Plaintiffs are unsupported and contrary to the reasoning in People Who Care." (City's Mot. Cite Additional Authority ¶ 4.) The City is too late in raising this argument. L.R. 54.3(f) ("Unless otherwise allowed by the court, the motion and any supporting or opposing memoranda shall limit their argument and supporting evidentiary matter to disputed issues."). On the other hand, People Who Care was decided November 30, 2001, exactly eight months after the parties' joint statement of disputed issues was filed. In its discretion, the court may consider the arguments that the parties have made on this issue. The issue relates to what constitutes a reasonable attorney's fee, so the court will consider it in determining the appropriate lodestar figures. See Missouri v. Jenkins, 491 U.S. 274, 284 (1989) ("An adjustment for delay is, we hold, an appropriate factor in the determination of what constitutes a reasonable attorney's fee under § 1988."). The City is given leave, if it desires, to file a reply brief, within the time specified below, on the issue of how to reconcile People Who Care and Missouri v. Jenkins.
Conclusion
For the foregoing reasons, the ACLU and Alliance plaintiffs' petitions for awards of attorney's fees are granted. Defendant City's bills of costs are both denied. However, on this record the court is unable to determine the amount of reasonable fees and costs that should be awarded. Therefore, plaintiffs are requested to submit, within 20 days of this order, a billing statement or other document that clearly indicates the following: (1) the total number of hours, per attorney and per year, spent working only on the plaintiffs' opposition to the City's motion to modify the consent decree through December 28, 1999; (2) the total number of hours, per attorney and per year, spent working only on the plaintiffs' opposition to the City's motion to modify after December 28, 1999; (3) the total number of hours, per attorney and per year, spent working only on the Alliance plaintiffs' DNC petition; (4) the total number of hours, per attorney and per year, spent working on both the DNC petition and the opposition to the City's motion to modify (not including those hours spent working exclusively on only one of the proceedings, as specified above) through December 28, 1999; (5) the total number of hours, per attorney and per year, spent working on both the DNC petition and the opposition to the City's motion to modify (not including those hours spent working exclusively on one of the proceedings, as specified above) after December 28, 1999; (6) the total number of hours, per attorney and per year, spent working on other monitoring, distinguishing if possible those hours relating to the Risley or Kass petitions and any other monitoring; and (7) the total number of hours, per attorney and per year, spent working on attorney's fees litigation. In addition, the statement should clearly indicate the rate requested for each attorney per year, should indicate where the Lodestar Agreement provisions apply, and should include a proposed interest calculation, as used by the parties and the court in past fee awards in this case.
If the City desires, it may object, within 10 days of plaintiffs' submissions, to plaintiffs' figures and provide its objections to the reasonableness of plaintiffs' billing entries relating to work on both the DNC petition and the opposition to the City's motion to modify. The City is also permitted to provide an argument in reply to the Alliance Plaintiffs' Response to City of Chicago's Citation of Additional Authority. After the parties have filed their documents, the court will determine the reasonable amount of attorney's fees and costs to be awarded to plaintiffs. In determining the lodestar for each legal action, the court will address the City's numerous objections to the reasonableness of plaintiffs' billing entries and rates (including whether the Alliance and ACLU plaintiffs' work was duplicative and whether and how much interest should be awarded) at that time. The court will then reduce each lodestar, according to the percentages herein, based on plaintiffs' lack of success.