Barrow v. Falck, 93-2004

Citation11 F.3d 729
Decision Date10 February 1994
Docket NumberNo. 93-2004,93-2004
PartiesThomas BARROW, Plaintiff-Appellee, v. Lloyd A. FALCK, individually and as Sheriff of Ford County, Illinois, and Ford County, Illinois, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Edward H. Rawles (argued), Reno, O'Byrne & Kepley, Champaign, IL, for plaintiff-appellee.

William A. Allison (argued), Timothy W. Kelly, Allison & Kelly, Bloomington, IL, for defendants-appellants.

Before CUDAHY and EASTERBROOK, Circuit Judges, and WOOD, Jr., Senior Circuit Judge.

EASTERBROOK, Circuit Judge.

After entering judgment on the jury's verdict for the plaintiff in this action under 42 U.S.C. Sec. 1983, the district court awarded attorneys' fees at the rate of $135 per hour. We reversed that decision, concluding that counsel's market rate is the fee he charges to paying clients: between $80 and $110 per hour. 977 F.2d 1100, 1105-06 (1992). We remanded so that the district court could select the appropriate rate from within that range and exclude hours that another portion of the opinion held were not compensable under 42 U.S.C. Sec. 1988. Despite our ultimate conclusion ("The market rate for [counsel's] time was not $135, and the district court may not charge his services to defendants at such a rate", 977 F.2d at 1106), the district judge once again entered a judgment based on a rate of $135 per hour. Such flouting of our instructions leads us to vacate the district court's judgment and set the fees ourselves. Cf. In re Continental Illinois Securities Litigation, 985 F.2d 867 (7th Cir.1993) (failure to carry out appellate instructions concerning the calculation of attorneys' fees leads to a writ of mandamus).

The district judge's order on remand did not mention our holding that the hourly rate for Edward Rawles, who represented the plaintiff, may not exceed $110. Instead the judge concluded that the issue is not open to dispute between the parties because in an earlier case, Upton v. Falck, the court had awarded fees at the $135 rate to a plaintiff represented by Rawles. That award, the judge believed, collaterally estopped Falck (the defendant in both cases) from denying that Rawles's market rate is $135 per hour. Such an argument comes too late. An argument bypassed by the litigants, and therefore not presented in the court of appeals, may not be resurrected on remand and used as a reason to disregard the court of appeals' decision. The district judge should have considered the possibilities: either Barrow advanced issue preclusion as an argument in support of the judgment and we thought so little of the point that we did not see a need to discuss it, or Barrow did not invoke issue preclusion and thereby waived the point. Whether the argument was rejected sub silentio or was surrendered, it was unavailable on remand.

An appellate mandate does not turn a district judge into a robot, mechanically carrying out orders that become inappropriate in light of subsequent factual discoveries or changes in the law. But the appellate decision severely limits the kinds of considerations open. Unless the parties bring to the district judge's attention the sort of circumstance that justifies modification under Fed.R.Civ.P. 60(b), the district judge must take the appellate decision as conclusive. Standard Oil Co. v. United States, 429 U.S. 17, 97 S.Ct. 31, 50 L.Ed.2d 21 (1976); Milwaukee R.R. v. Soutter, 69 U.S. (2 Wall.) 510, 17 L.Ed. 900 (1864); Cole Energy Development Co. v. Ingersoll-Rand Co., 8 F.3d 607, 609-10 (7th Cir.1993); see United States v. E.I. du Pont de Nemours & Co., 366 U.S. 316, 325, 81 S.Ct. 1243, 1249, 6 L.Ed.2d 318 (1961); Insurance Group Committee v. Denver & Rio Grande R.R., 329 U.S. 607, 612, 67 S.Ct. 583, 585, 91 L.Ed. 547 (1947); FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 140-41, 60 S.Ct. 437, 440-41, 84 L.Ed. 656 (1940); West v. Brashear, 39 U.S. (14 Pet.) 51, 10 L.Ed. 350 (1840); Sibbald v. United States, 37 U.S. (12 Pet.) 488, 9 L.Ed. 1167 (1838). Issue preclusion is not the sort of argument that justifies revision of a judgment already entered. Quite the contrary. Preclusion is a reason to avoid the toil of reaching an independent decision. Once the labor has been undertaken and the decision rendered on the merits, it is too late to invoke a prior adjudication.

Collateral estoppel would be an inadequate answer to our decision even if a district court were empowered to consider it. First, the formal conditions of claim preclusion have not been satisfied. Attorneys' fees under Sec. 1988 go to the litigant, not the lawyer. Rawles was not Sheriff Falck's adversary in Upton v. Falck and did not prevail on any issue in that case; only plaintiff Upton prevailed. Ours is not an appropriate case for offensive non-mutual issue preclusion, for preclusion applies only to issues that were actually litigated and not merely to those that could have been. CIR v. Sunnen, 333 U.S. 591, 598, 68 S.Ct. 715, 719, 92 L.Ed. 898 (1948). An issue may be "litigated" for this purpose even though one party is passive. See Harris Trust & Savings Bank v. Ellis, 810 F.2d 700, 704-05 (7th Cir.1987). But while Harris involved a "genuine evidentiary hearing", 810 F.2d at 705, at which one side remained mum, Upton was settled. d

Second, Sec. 1988 requires the court to use the market rate for a lawyer's services. Market prices may go down as well as up; many lawyers have reduced their rates during the recent period of soft demand for legal services; perhaps Rawles's market rate declined. Upton v. Falck did not settle--could not have resolved--Rawles's market rate for the indefinite future.

Third, issue preclusion does not permit judges to disregard intervening changes in the law. Sunnen, 333 U.S. at 599, 68 S.Ct. at 720. At the time of the award in Upton v. Falck (indeed, at the time of the initial decision in this case) many judges believed it appropriate to award fees in civil rights cases at a higher rate than the lawyer charges to paying clients in light of the risk of non-payment (the lawyer is compensated only if his...

To continue reading

Request your trial
32 cases
  • Moore v. University of Notre Dame
    • United States
    • U.S. District Court — Northern District of Indiana
    • 30 Septiembre 1998
    ...than being paid by court order." See Gusman, 986 F.2d 1146, 1150; Pressley v. Haeger, 977 F.2d 295, 299 (7th Cir.1992); Barrow v. Falck, 11 F.3d 729 (7th Cir.1993). However though Gusman states that "the best measure of the cost of an attorney's time is what that attorney could earn from pa......
  • E.E.O.C. v. Sears, Roebuck & Co.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 10 Agosto 2005
    ...carrying out orders that become inappropriate in light of subsequent factual discoveries or changes in the law." Barrow v. Falck, 11 F.3d 729, 731 (7th Cir. 1993). Similarly, the law of the case doctrine permits "a court to revisit an issue if an intervening change in the law, or some other......
  • Montgomery v. Aetna Plywood, Inc.
    • United States
    • U.S. District Court — Northern District of Illinois
    • 16 Julio 1998
    ...954 F.2d 1279, 1331 (7th Cir.1992); Partington v. Broyhill Furniture Industries, Inc., 999 F.2d 269, 274 (7th Cir.1993); Barrow v. Falck, 11 F.3d 729, 732 (7th Cir.1993). Also, the interest should be compounded so as to more closely put the plaintiff in the position he or she otherwise woul......
  • Carmody v. Bd. of Trs. of the Univ. of Ill.
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 19 Junio 2018
    ...factual discoveries or changes in the law." EEOC v. Sears, Roebuck & Co. , 417 F.3d 789, 796 (7th Cir. 2005), quoting Barrow v. Falck , 11 F.3d 729, 731 (7th Cir. 1993) ; see also 18B Wright & Miller, Federal Practice and Procedure § 4478.3 (2d ed.) (noting that "a compelling showing" or "c......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT