Alliance to End Repression v. Chicago

• Decision Date: 28 January 2004
• Docket Number: No. 02-3982.,No. 02-3981.,02-3981.,02-3982.
• Citation: 356 F.3d 767
• Parties: ALLIANCE TO END REPRESSION, et al., Plaintiffs-Appellees/Cross-Appellants, v. CITY OF CHICAGO, Defendant-Appellant/Cross-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

356 F.3d 767

ALLIANCE TO END REPRESSION, et al., Plaintiffs-Appellees/Cross-Appellants, v. CITY OF CHICAGO, Defendant-Appellant/Cross-Appellee.

No. 02-3981.

No. 02-3982.

United States Court of Appeals, Seventh Circuit.

ARGUED December 11, 2003.

DECIDED January 28, 2004.

Rehearing and Rehearing En Banc Denied February 27, 2004.^*

Richard M. Gutman (argued), Montclair, NJ, Edward Koziboski, Harvey M. Grossman, Adam D. Schwartz (argued), Roger S. Hutchinson, Chicago, IL, for Plaintiffs-Appellees.

Myriam Zreczny (argued), Office of the Corporation Counsel, Chicago, IL, for Defendant-Appellant.

Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.

POSNER, Circuit Judge.

In 1974 and 1975, two classes of plaintiffs, represented by the Alliance to End Repression and the American Civil Liberties Union respectively, brought suit under 42 U.S.C. § 1983 against the United States and the City of Chicago. The suit charged that the FBI's Chicago office and the Chicago Police Department's intelligence division were violating the class members' First Amendment rights by overly intrusive and improperly motivated investigations of alleged subversive activities. In 1981, before a trial could be held, the defendants agreed to a consent decree, which was approved by the district court the following year, imposing detailed restrictions on the defendants' investigative authority. 561 F.Supp. 537 (N.D.Ill.1982). The decree did not, however, vest monitoring or other responsibilities in the plaintiffs or their lawyers.

In 1997, long after this court had interpreted the decree as imposing fewer restrictions on the FBI than the district court had thought it did, 742 F.2d 1007 (7th Cir.1984) (en banc), the City asked the district court to modify it to make the restrictions on the City less onerous. The district court refused even though the judge who had approved the decree in the first place had said it was so strict that she wouldn't have awarded the plaintiffs such draconian relief even if they had proved all their allegations in a trial. 561 F.Supp. at 551.

The City appealed from the refusal to modify the decree. It pointed out that it had complied with the decree throughout the entire period of almost two decades in which it had been in force, that during this period the Supreme Court and this court had become ever more emphatic that the federal judiciary must endeavor to return the control of local governmental activities to local government at the earliest possible opportunity compatible with achievement of the objectives of the decree that transferred that control to the federal courts, and that the culture of law enforcement in Chicago and the character of the threats to public safety by ideologically motivated criminals had so far changed as to make much of the decree obsolete. We agreed with the City and ordered that its motion be granted in its entirety. 237 F.3d 799 (7th Cir.2001). We pointed out that the decree was frustrating the efforts of the police to cope with the problems of today because earlier generations of police had coped improperly with the problems of yesterday. Because of what the police department's "Red Squad" had done many years ago, the Chicago police would, unless the decree was modified, labor indefinitely under severe handicaps from which other police forces were free. Under the modified decree, which forbids investigations intended to impede freedom of expression and requires the City to commission independent periodic audits to determine the City's compliance, First Amendment rights would, we held, be secure, while under the original decree the public safety was insecure and the prerogatives of local government scorned. And this was before the terrorist attacks on the United States of September 11, 2001, brought about a renewed appreciation of the weight of security considerations in determining the point of balance between safety and liberty that we call our civil liberties.

All this is by way of background to the present appeal (and cross-appeal, in which the ACLU, however, does not join), which is by the City from an award by the district court to the class representatives of more than $1 million in attorneys' fees. That is on top of at least $450,000 in fees awarded (and paid) for legal services rendered earlier in the proceedings; the true figure is undoubtedly higher but the parties' records are incomplete, doubtless because of the great age of the case.

The $1 million award is for the following legal services rendered between 1994 and 2001: two proceedings for contempt of the decree, which failed; the opposition, just described, which also failed, to the modification of the decree; and efforts, which also bore no fruit so far as anyone can say, to monitor the City's compliance with the decree — no fruit, that is, except the failed contempt proceedings. The order is appealable now because the activities for which the fees were awarded are complete in a sense that will become clearer in our discussion of the merits.

The awarding of attorneys' fees under 42 U.S.C. § 1983 is governed by 42 U.S.C. § 1988(b), which authorizes such awards only to the prevailing party. See Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health & Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). The plaintiffs argue that by virtue of obtaining the consent decree in the first place they became the prevailing party for the entire life of the decree (which contains no sunset provision) — indeed, beyond, for they contend that even if the decree had been dissolved in 2001, rather than just being modified, they would be entitled to the legal fees they incurred in opposing that result, provided only that the fees were reasonable in amount and the opposition to dissolution not frivolous. They base this claim primarily on the Supreme Court's decision in Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 557-61, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986), which allowed the reimbursement of attorneys' fees for postjudgment proceedings brought by the plaintiffs' lawyers. But those postjudgment proceedings were at least partly successful. These plaintiffs' postjudgment proceedings were not. They argue that they shouldn't be penalized for failure because they were duty-bound to oppose the modification of the decree, to monitor compliance with the decree before and after it was modified, and to bring contempt proceedings against anyone who they thought might be violating it. In support of the argument they cite our decision in Ustrak v. Fairman, 851 F.2d 983, 990 (7th Cir.1988), where we said that the plaintiff, having won a judgment in the district court, "had no choice" but to incur attorneys' fees to defend the judgment in our court. But in that case, too, the plaintiff was successful — not entirely, but enough to make him the prevailing party. Had he lost on appeal he would not have been entitled to any award of fees.

In only two classes of case governed by section 1988(b) or similar fee-shifting provisions (see Hensley v. Eckerhart, 461 U.S. 424, 433 n. 7, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)) has a plaintiff who obtained no relief in postdecree proceedings nevertheless been awarded fees for those proceedings. The first class consists of cases in which the consent decree itself authorized the court to award fees to the plaintiff that would be incurred in disputes brought to the court in the wake of the decree. Plyler v. Evatt, 902 F.2d 273, 276 n. 1, 279 n. 4 (4th Cir.1990); Turner v. Orr, 785 F.2d 1498, 1500 nn. 2, 3 (11th Cir.1986). The contractual entitlement (there is none in our case) supplemented or superseded the statutory one. Granted, Plyler contains language suggesting that the case would probably have been decided the same way without benefit of the decretal provision. Similar dicta can be found in other cases as well, such as Cody v. Hillard, 304 F.3d 767, 773 (8th Cir.2002); San Francisco NAACP v. San Francisco Unified School District, 284 F.3d 1163, 1166 (9th Cir. 2002), and Jenkins v. Missouri, 127 F.3d 709, 716-19 (8th Cir.1997). But partly by its approving reference (902 F.2d at 281) to our decision in Ustrak, where, to repeat, the plaintiff had some success, and partly by its observing that the plaintiffs had merely not been "successful in detail," id., the court in Plyler indicated that it thought the plaintiffs' efforts had contributed to compliance with the decree, and thus had not been fruitless after all. Indeed, the court noted that the defendant hadn't even appealed part of the district court's order in favor of the plaintiffs. Id. at 276, 279. This statement may have been erroneous, see Plyler v. Evatt, 846 F.2d 208, 210, 215-16 (4th Cir.1988) (an earlier round, in which the court vacated the district court's order in its entirety), but it shows the court's thinking.

And likewise in Turner the court made clear its belief that the postdecree efforts had been valuable in inducing compliance with the decree, even though they, too, had failed in detail. 785 F.2d at 1504; cf. Bond v. Stanton, 630 F.2d 1231, 1233-34 (7th Cir.1980); Miller v. Carson, 628 F.2d 346, 347-49 (5th Cir.1980). These cases can be thought of as extensions of the principle that a plaintiff is not to be denied full attorneys' fees merely because he lost some interim rulings en route to ultimate success. Jaffee v. Redmond, 142 F.3d 409, 414 (7th Cir.1998); Jenkins v. Missouri, supra, 127 F.3d at 714-16. Such setbacks are well-nigh inevitable, and a lawyer who nevertheless was sedulous to avoid them might lose a good case through an excess of caution. Likewise in postdecree litigation there may be inevitable setbacks en route to victory, partial or complete. But in the present case there has for a decade now been nothing but loss — a million dollars' worth of legal services poured down the drain. There was not even a disappointing partial success, as there would...