Ustrak v. Fairman

• Decision Date: 13 July 1988
• Docket Number: No. 87-2057,87-2057
• Parties: Stephen USTRAK, Plaintiff-Appellee, v. James W. FAIRMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 983

851 F.2d 983

Stephen USTRAK, Plaintiff-Appellee, v. James W. FAIRMAN, Defendant-Appellant.

No. 87-2057.

United States Court of Appeals, Seventh Circuit.

Argued April 6, 1988.

Decided July 13, 1988.

Deborah L. Ahlstrand, Chicago, Ill., for defendant-appellant.

Gregory E. Pelini, Pelini & Sheffler, Champaign, Ill., for plaintiff-appellee.

Before POSNER, FLAUM, and EASTERBROOK, Circuit Judges.

POSNER, Circuit Judge.

In 1980 Stephen Ustrak, who was then an inmate of an Illinois state prison, brought a civil rights suit against the warden. At the request of the district court, see 28 U.S.C. Sec. 1915(d), the law firm of Pelini & Sheffler undertook to represent Ustrak, and in 1981 filed an amended complaint seeking almost $1 million in compensatory and punitive damages. The complaint was in six counts. Two were dismissed on motion for summary judgment; the other four were tried in a three-day jury trial in 1984. The counts that were tried concerned three incidents: (1) the denial in June 1979, allegedly on racial grounds (Ustrak is white), of Ustrak's request for a job in the prison library; (2) alleged racial discrimination in a disciplinary matter in July 1980; and (3) the denial in October 1980, alleged to be in retaliation for the exercise of free speech, of Ustrak's request to be transferred to a less restrictive part of the prison. The jury found liability and awarded Ustrak almost $50,000 in compensatory and punitive damages, but we reversed on all but the retaliation count and reduced his damages to $1 in compensatory damages and $1,000 in punitive damages. 781 F.2d 573 (7th Cir.1986).

The inevitable attorney's fee proceeding followed. Ustrak sought an award of more than $50,000 in attorney's fees, based on 561.40 hours of lawyers' time at $90 per hour and 139.15 hours of "law clerk" time (a "law clerk" being a law student working for the firm part time) at $30 per hour. The district court reduced the fee to $75 an hour for the lawyers and $25 for the students, and reduced the number of hours by one-third to reflect the modest results of the litigation. The upshot was an award of some $30,000 in fees, from which the warden appeals under 28 U.S.C. Sec. 636(c)(3). He argues that the district court erred both in failing to exclude hours that were clearly excessive in relation to work performed and in failing to reduce the total number of hours by five-sixths rather than one-third, to reflect the fact that Ustrak had prevailed on only one count of a complaint that contained six unrelated counts.

Fee litigation has become a heavy burden on the federal courts. It can turn a simple civil case into two or even more cases--the case on the merits, the case for fees, the case for fees on appeal, the case for fees for proving fees, and so on ad infinitum, or at least ad nauseam. See Muscare v. Quinn, 680 F.2d 42 (7th Cir.1982). There are alternatives to requiring the courts to determine a reasonable fee on an ad hoc basis in every case. The courts of Alaska--the first state to abandon the "American rule" (each party bears his own expenses of litigation) in favor of a rule requiring the losing party in (virtually) every civil case to reimburse the winner's attorney's fees--use in most cases a schedule of fixed fees rather than determining fees on an ad hoc, case-by-case basis. Countries that have long shifted the costs of litigation to the loser have learned how to do so with a minimum of satellite litigation and other travail; England, for example, uses taxing masters rather than ordinary judicial personnel to assess fees. The English and Alaskan experiences are described in Tomkins & Willging, Taxation of Attorneys' Fees: Practices in English, Alaskan, and Federal Courts 5-47 (Federal Judicial Center 1986); see also Pfennigstorf, The European Experience with Attorney Fee Shifting, 47 Law & Contemp.Prob. 37 (Winter 1984).

But for now we must continue to slog our way through these fee cases as best we can. And in the present case that means considering not only the interesting general question of the proper treatment of cases where the plaintiff wins half a loaf (or less), but also specific challenges to the details of the district court's order--though, of course, only those challenges that the defendant raised in the district court. Another interesting question, discussed at the end of this opinion, concerns the award of fees on appeal where the judgment is modified rather than affirmed in its entirety.

In reviewing the specific challenges we naturally give great deference to the views of the district court. If ever there was a case for reviewing the determinations of a trial court under a highly deferential version of the "abuse of discretion" standard, it is in the matter of determining the reasonableness of the time spent by a lawyer on a particular task in a litigation in that court. Not only is the trial court in a much better position than the appellate court to make this determination, but neither the stakes nor the interest in uniform determination are so great as to justify microscopic appellate scrutiny. Nevertheless certain items in the list of challenged allowances leap out at us and cannot be upheld even under the most deferential standard of review.

1. The district court allowed 38 hours of attorney time for preparation for the oral argument of the appeal. Almost a week's work is far too much for preparing to argue an appeal in a case involving simple facts, a three-day trial, and legal issues of limited (though not trivial) scope and novelty. The law firm's excuse is that the lead counsel (Pelini) was unable to argue the appeal because of a previously scheduled trial, so that another member of his firm had to be gotten up to speed for the argument. Pelini should have informed us of any potential conflicts in his schedule before we set the case for argument; he knew the trial date before then. Our Circuit Rule 34(b)(3) states that "requests by counsel, made in advance of the scheduling of an appeal for oral argument, that the court avoid scheduling the oral argument for a particular day or week will be respected, if possible." No such request was made, bringing into play Rule 34(b)(4): "Once an appeal has been scheduled for oral argument, the court will not ordinarily reschedule it. Requests under [Rule 34(b)(3) ] should therefore be made as early as possible." Counsel either was careless or gambled on our setting the case on a day when he would be free. We shall knock 22 hours off this request.

2. The district court allowed 108.5 hours of attorney time and 31.95 hours of student time for the preparation of the plaintiff's two fee petitions. This is the tail wagging the dog, with a vengeance. For every hour spent litigating the merits the plaintiff's attorneys devoted almost 15 minutes to preparing a petition requesting fees for that hour. An even higher fraction of the law students' time was spent on the fee petitions--18 minutes for every hour of work on the merits. The fee petitions are marvels of misplaced ingenuity and thoroughness, rehearsing in great detail basic principles well known to the district court (compare Lightfoot v. Walker, 826 F.2d 516, 522 (7th Cir.1987)), and reinforcing our impression that lawyers litigate fee issues with greater energy and enthusiasm than they litigate any other type of issue. (The briefs on the merits in this case were greatly inferior to the briefs on the fee issues.) We shall disallow two-thirds of the lawyer and student hours allowed for the preparation of the fee petitions. The allowance is still a generous one; compare Kurowski v. Krajewski, 848 F.2d 767, 776 (7th Cir.1988), where the prevailing party submitted a bill for only 1.6 hours for the preparation of his request for an award of attorney's fees.

3. The plaintiff concedes that 1.3 hours of student time were inadvertently allowed. He does not confess error on the point, however; we shall do so for him.

4. The district court allowed 8.3 hours for review by a law student of this court's rules. The purpose of the review is nowhere disclosed. We cannot imagine what purpose is served by sitting a student down in front of our rules for a day, unless to torture him. We shall disallow this item in its entirety.

We conclude that only 467.1 hours of attorney time, and 108.2 hours of student time, should have been allowed, and move to the question what further reduction if any should have been made to reflect the fact that Ustrak lost on five of his six counts and recovered damages that were modest both absolutely and in relation to what he had sought in his complaint. The Supreme Court prescribed the basic approach to be taken in such cases in Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); see also Lenard v. Argento, 808 F.2d 1242, 1245-46 (7th Cir.1987). Factually unrelated claims are treated as separate lawsuits, and therefore if the plaintiff loses on such a claim he is not to be reimbursed for the attorney's fees allocable to it. But where "the plaintiff's claims of relief ... involve a common core of facts or [are] based on related legal theories," so that "much of counsel's time will be devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis, ... the district court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation." 461 U.S. at 435, 103 S.Ct. at 1940. Unfortunately the present case straddles the Court's two classes. The only claim on which Ustrak prevailed is legally and factually distinct from his other claims, yet much of counsel's time necessarily was devoted to the litigation as a whole--a good example being the time taken to pick a jury. The procedure suggested by the defendant, of dividing the fee request by six because Ustrak prevailed on one of six unrelated grounds, implies that the...