People Who Care v. Rockford Bd. of Educ., School Dist. No. 205

• Decision Date: 08 October 1996
• Docket Number: 95-3493,Nos. 95-3365,s. 95-3365
• Citation: 90 F.3d 1307
• Parties: 111 Ed. Law Rep. 171 PEOPLE WHO CARE, an unincorporated association, Larry Hoarde, Chasty Hoarde, minors, by their parent and next friend, Flossie Hoarde, et al., Plaintiffs-Appellants and Cross-Appellees, v. ROCKFORD BOARD OF EDUCATION, SCHOOL DISTRICT NO. 205, Jacquelyn Confer, Avery Gage, et al., Defendants-Appellees and Cross-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1307

90 F.3d 1307

111 Ed. Law Rep. 171

PEOPLE WHO CARE, an unincorporated association, Larry Hoarde, Chasty Hoarde, minors, by their parent and next friend, Flossie Hoarde, et al Plaintiffs-Appellants and Cross-Appellees, v. ROCKFORD BOARD OF EDUCATION, SCHOOL DISTRICT NO. 205 Jacquelyn Confer, Avery Gage, et al Defendants-Appellees and Cross-Appellants.

Nos. 95-3365, 95-3493.

United States Court of Appeals Seventh Circuit.

Argued April 17, 1996.

Decided Aug. 1, 1996.

Rehearing and Suggestion for Rehearing En Banc Denied Oct. 8, 1996.

Matthew J. Piers, Jonathan A. Rothstein, Jennifer L. Fischer, Gessler, Hughes & Socol, Chicago, IL, Ronald L. Futterman, Robert C. Howard (argued), Craig B. Futterman, Kathleen M. Spoto, Futterman & Howard, Chicago, IL, for People Who Care in No. 95-3365.

Matthew J. Piers, Jonathan A. Rothstein, Jennifer L. Fischer, Gessler, Hughes & Socol, Chicago, IL, Claire T. Hartfield, Ronald L. Futterman, Robert C. Howard (argued), Kathleen M. Spoto, Futterman & Howard, Chicago, IL, Andrew Campos, Rockford Area Hispanic Coalition, Rockford, IL, Eugene Eubanks, Kansas City, MO, Janet L. Pulliam, Little Rock, AR, for People Who Care in No. 95-3493.

Matthew J. Piers, Jonathan A. Rothstein, Gessler, Hughes & Socol, Chicago, IL, Ronald L. Futterman, Robert C. Howard, Craig B. Futterman, Futterman & Howard, Chicago, IL, for Larry Hoarde, Chasty Hoarde, Johnathan Hughes, Sidney Malone, Shaheed Saleem, Anissa Tripplett, Asia Eason in No. 95-3365.

Matthew J. Piers, Jonathan A. Rothstein, Gessler, Hughes & Socol, Chicago, IL, for Larry Hoarde, Chasty Hoarde, Cindy Malone, Stephanie Burfield, Johnathan Hughes, Joshua Burfield, Brandon Burfield, Shaheed Saleem, Johnny Devereueawax, Anissa Tripplett, Asia Eason, Marie Devereueawax, Sidney Malone in No. 95-3493.

Ronald L. Futterman, Robert C. Howard, Craig B. Futterman, Futterman & Howard, Chicago, IL, for Andre Malone, James Curtin, Kelly Curtin, Leonardo Medrano in No. 95-3365.

Robert C. Howard, Futterman & Howard, Chicago, IL, for Andre Malone, James Curtin, Kelly Curtin, Leonardo Medrano in No. 95-3493.

Lawrence J. Weiner (argued), Robert H. Ellch, David P. Kula, Justino D. Petrarca, Jonathan A. Pearl, Albert L. Himes, George R. Cooper, Scariano, Kula, Ellch & Himes, Chicago, IL, William J. Quinlan, Rockford Public Schools, Rockford, IL, John M. Izzo, Anthony G. Scariano, Scariano, Kula, Ellch & Himes, Chicago Heights, IL, for Rockford Bd. of Educ., School Dist. No. 205 in No. 95-3365.

Lawrence J. Weiner (argued), Anthony G. Scariano, Justino D. Petrarca, Scariano, Kula, Ellch & Himes, Chicago, IL, William J. Quinlan, Rockford Public Schools, Rockford, IL, for Rockford Bd. of Educ, School Dist. No. 205 in No. 95-3493.

Before POSNER, Chief Judge, CUMMINGS and COFFEY, Circuit Judges.

CUMMINGS, Circuit Judge.

In 1989, plaintiffs hired the law firm of Futterman & Howard ("F & H") to file a class action challenging a reorganization plan adopted by defendant Rockford Board of Education. Two months later, the parties entered into a consent decree whereby the Board rescinded most of the plan's segregative elements. The case was not over, however, for the consent decree preserved plaintiffs' right to pursue a liability adjudication, which they did. Following the entry of the consent decree, the district court granted F & H an interim fee award relating to attorney's fees incurred in the implementation and enforcement of the consent decree. Both parties challenged the calculation of that award and Judge Roszkowski certified the question for appeal pursuant to 28 U.S.C. § 1292(b). We dismissed the appeal, however, on the ground that it was not a "final order," People Who Care v. Rockford Bd. of Education, 961 F.2d 1335, 1339 (7th Cir.1992), and F & H thus continued to accept interim fee awards while reserving their objections to those amounts until the entry of a final judgment.

The district court entered a Liability Judgment Order on August 31, 1995, requiring the Board "to eliminate root and branch, through the Rockford public school system, all vestiges of racial, ethnic and national origin segregation discrimination against African American and Hispanic students." In a Final Judgment Order entered on August 31, 1995, the court disposed of all issues regarding fees and expenses for the liability litigation, as well as reconsideration of the interim fee awards, by awarding F & H $1,827,124 in fees and $198,342 in expenses (plus interest on both). F & H appeals, and Rockford cross-appeals, the fees portion of that order on the ground that the district court's calculation was incorrect. For the following reasons, we reverse the district court's fee determination.

I.

Under 42 U.S.C. § 1988, prevailing parties are entitled to "reasonable" fees as a portion of their cost of bringing suit. Clear guidelines have been developed to aid courts in calculating the amount of those fees. The "lodestar" method--reasonable hourly rates multiplied by hours reasonably expended--is the most appropriate starting point. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40. In determining "reasonable hourly rates," the Supreme Court has repeatedly stressed that "attorney's fees awarded under [Section 1988] are to be based on market rates for services rendered." Missouri v. Jenkins, 491 U.S. 274, 283, 109 S.Ct. 2463, 2469, 105 L.Ed.2d 229; see also Pressley v. Haeger, 977 F.2d 295, 299 (7th Cir.1992). The attorney's actual billing rate for comparable work is "presumptively appropriate" to use as the market rate. Gusman v. Unisys Corp., 986 F.2d 1146, 1150 (7th Cir.1993). If the court is unable to determine the attorney's true billing rate, however (because he maintains a contingent fee or public interest practice, for example), then the court should look to the next best evidence-the rate charged by lawyers in the community of "reasonably comparable skill, experience, and reputation." Blum v. Stenson, 465 U.S. 886, 892, 895 n. 11, 104 S.Ct. 1541, 1545, 1547 n. 11, 79 L.Ed.2d 891. Once the court reaches an amount using the lodestar determination, it may then adjust that award in light of factors adopted by Congress in enacting Section 1988, known as the Hensley factors, ¹ although most of those factors are usually subsumed within the initial lodestar calculation. Hensley, 461 U.S. at 434 n. 9, 103 S.Ct. at 1940 n. 9.

II.

With these principles in mind, we must determine whether the district court's calculation in this case was an abuse of its discretion. Bankston v. State of Illinois, 60 F.3d 1249, 1255 (7th Cir.1995). We conclude that it was. The court properly began by using the lodestar method and a historical rate-plus-interest approach to compensate F & H for the delay in receiving its payments. See Smith v. Village of Maywood, 17 F.3d 219, 221 (7th Cir.1994). Where it erred, however, was in its calculation of "reasonable hourly rates" and "reasonable hours."

A.

Because the court's treatment of hourly rates was essentially the same for each of F & H's personnel, this opinion need only discuss in detail its calculation of Mr. Howard's rate. ² Initially, Mr. Howard submitted an affidavit indicating that his requested rates over the five-year period were the rates that he actually billed. For 1989-90, he presented actual statements reflecting 33.4 hours billed at $210. He further submitted evidence that he was awarded $210 per hour in similar cases during that period (see, e.g., Littlefield v. Mack, 750 F.Supp. 1395 (N.D. Ill.1990); ACLU v. City of Chicago, No. 75 C 3295 (N.D. Ill. filed Feb. 22, 1993), aff'd. sub nom. Alliance to End Repression, No. 74 C 3268, 1994 WL 86690 (N.D.Ill. March 11, 1994)). Finally, he referred the court to affidavits that he had submitted in 1990 (in reference to the Interim Fee Order) indicating that the $210 rate was in line with similarly situated attorneys. For 1991-92, Mr. Howard submitted billing statements indicating that he billed one hour at $240 and that his partner, Mr. Futterman, billed 21.9 hours at that rate. He further submitted evidence that he was awarded a $250 per hour rate in ACLU v. City of Chicago, supra. For 1992-93, he presented no statements relating to hours that he had billed paying clients because he "was required to devote substantially all of his time to [this case]." He did, however, present evidence that elsewhere his partner, Mr. Futterman, had billed 36.75 hours at $260 per hour and had been awarded rates of $275 and $280 in numerous other cases. See, e.g., Jaffee v. Redmond, 855 F.Supp. 244 (N.D.Ill.1994).

The district court acknowledged that an attorney's actual billing rate is "presumptively appropriate." Gusman, 986 F.2d at 1150. However, for each of the above years, the district court concluded that Mr. Howard's evidence failed to establish that his requested rate was his actual billing rate. It concluded that the number of hours on his billing statements was "insufficient"; that it was "not bound by [other fee award] decisions"; and that the evidence of Mr. Futterman's billing rates was "entirely irrelevant." Furthermore, looking to the next best evidence, the court considered the statements indicating Mr. Futterman's rate "not enough" to establish that it was the rate similar attorneys charged for similar work; and it concluded that the affidavits of other Chicago civil rights lawyers were relevant only to the years in which they were submitted (1989-90 and 1993-94) because the affiants spoke only in current terms. Thus the court held that "under Gusman, effectively, there is no presumption."

The court was correct that the Gusman approach requires a plaintiff's attorney to do more than merely request an hourly rate; he must present evidence to establish that the requested rate is his actual billing rate. The court erred, however, in setting the amount of evidence required at a nearly unattainable level. The evidence F & H submitted was more than...