Bigby v. City of Chicago
| Decision Date | 25 March 1991 |
| Docket Number | No. 89-2194,89-2194 |
| Citation | 927 F.2d 1426 |
| Parties | 55 Fair Empl.Prac.Cas. 588, 56 Empl. Prac. Dec. P 40,646, 59 USLW 2635 William C. BIGBY, et al., Plaintiffs-Appellants, and Maurice Thoele, et al., Intervening Plaintiffs, v. CITY of CHICAGO and Chicago Police Department, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
John L. Gubbins, Gubbins & Associates, Kenneth N. Flaxman, Chicago, Ill., for plaintiffs-appellants.
Bridget Arimond, Frederick S. Rhine, ACC, Office of the Corp. Counsel, Chicago, Ill., for defendants-appellees.
Before CUDAHY, COFFEY, and KANNE, Circuit Judges.
In 1980, William Bigby, as class representative for twenty-three black police sergeants, raised a challenge under Title VII of the Civil Rights Act of 1964 to the 1977 test used by the Chicago Police Department to determine eligibility for promotion to lieutenant, alleging that the test was racially biased. The district court permitted Maurice Thoele, as class representative for 53 white and Hispanic sergeants, to intervene in the case.
Following a bench trial, the district court found for the Bigby plaintiffs on their Title VII claim and against the Thoele intervenors on their claims. The district court imposed hiring and promotion quotas, permitting the City to make its promotions from the 1977 lieutenant's list until a new non-discriminatory lieutenant's examination could be developed.
The Bigby plaintiffs, as prevailing parties in a Title VII action, sought and received attorney's fees under 42 U.S.C. Sec. 2000e-5(k). In addition, the Bigby plaintiffs received additional fees for their work with the City in developing the new lieutenant's examination.
In May 1986, the district court sua sponte entered an order barring further promotions from the 1977 lieutenant's list until the City showed marked progress in developing a new test. In May 1987, the City filed a motion seeking leave to make additional promotions from the 1977 list. The district court denied the motion finding that the City had failed to adequately demonstrate the need for additional lieutenants. The City did not appeal from the district court's order, however, the Thoele intervenors did appeal. After briefing and oral argument, this court dismissed the appeal by the Thoele intervenors for lack of jurisdiction. Bigby v. City of Chicago, 871 F.2d 54 (7th Cir.1989).
The Bigby plaintiffs filed a petition in the district court seeking compensation from the City for the hours expended in opposing the Thoele intervenors' appeal. The district court denied the fee petition and this appeal followed.
Initially, the City maintains that this case should be dismissed for lack of jurisdiction. The City asserts that because the case remains pending in the district court, the denial of the fee petition is merely a denial of an interim fee petition from which the Bigby plaintiffs cannot appeal unless the order falls within the scope of the collateral order doctrine. The City argues that the fee order is not a collateral order, in that it does not conclusively resolve a disputed question in the litigation and because the Bigby plaintiffs have not shown that the order would effectively be unreviewable in an appeal from the final judgment in the case. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978) ().
In response, the Bigby plaintiffs assert that the City misrepresents the status of the case in making the argument that the order denying fees is a denial of an interim fee petition. The Bigby plaintiffs maintain that the Title VII challenge to the 1977 lieutenant's list has long since been resolved. They further argue that the current proceedings in the district court are challenges by yet another group of intervening plaintiffs to the 1988 promotion list compiled following the administration of the newly-developed lieutenant's examination. * Thus, according to the Bigby plaintiffs this court has jurisdiction over Judge Marshall's denial of the fee petition under the collateral order doctrine.
We agree that we have jurisdiction over this appeal. We find the circumstances of this appeal analogous to the situation where a case has been resolved on the merits and a fee petition or a motion for sanctions remains pending in the district court. In each of those instances, the judgment on the merits is final and appealable despite the pendency of collateral matters in the district court. See Budinich v. Becton Dickinson & Co., 486 U.S. 196, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988) (fee petition pending); Cleveland v. Berkson, 878 F.2d 1034 (7th Cir.1989) (Rule 11 motion pending).
In this case, the fee petition associated with the appeal by the Thoele intervenors is the final matter associated with the original action, the Title VII challenge to the 1977 lieutenant's list. With its denial of the fee petition for the fees associated with the intervenors' appeal, the district court put an end to the original action. The Budinich court noted that "[a] question remaining to be decided after an order ending litigation on the merits does not prevent finality if its resolution will not alter the order or moot or revise decisions embodied in the order." 486 U.S. at 199, 108 S.Ct. at 1720 (citations omitted). Applying the "practical approach" to finality recognized in Budinich, we conclude that the pendency of the collateral challenge to the 1988 lieutenant's list does not counsel us to defer our review of this appeal until the resolution of that challenge on the merits. The disposition of the proceedings concerning the newly-created promotion list will not impact on the resolution of the fee petition now before this court. The current proceedings in the district court are separate and distinct from the original Title VII action and the fee petition associated with that action; therefore, jurisdiction is not defeated by the pendency of those proceedings.
The only question remaining in this appeal is whether the district court erred in not awarding attorney's fees against the City and in favor of the Bigby plaintiffs for the time expended in defending the appeal taken by the Thoele intervenors. In arguing that they should be awarded such fees, the Bigby plaintiffs maintain that although the City did not appeal from the decision denying the motion to make additional promotions, the appeal was nonetheless necessitated by action taken by the Title VII wrongdoer of filing the motion. The Bigby plaintiffs further assert that as between them and the wrongdoer, it is the wrongdoer who should bear the costs of defending third party interests. The City counters that the Bigby plaintiffs are not entitled to an award of fees, because they are not "prevailing parties" within the meaning of Sec. 2000e-5(k), and further, the victory on the appeal was unrelated to the benefits sought by the Bigby plaintiffs in initially filing the Title VII action.
In support of their argument, the Bigby plaintiffs rely primarily on the concurring opinion of Justice Blackmun in Independent Fed'n of Flight Attendants v. Zipes, 491 U.S. 754, 109 S.Ct. 2732, 105 L.Ed.2d 639 (1989). In that opinion, Justice Blackmun stated:
Addressing and adjusting the rights of a third party are parts of the social cost of remedying a Title VII violation. That cost, as well as the costs to the plaintiff of vindicating his or her own rights, would not have existed but for the conduct of the Title VII defendant. I see nothing in the language of the statute or in our precedents to foreclose a prevailing plaintiff from turning to the Title VII defendant for reimbursement of all the costs of obtaining a remedy, including the costs of...
To continue reading
Request your trial
-
Miller v. Holzmann
...[him] and the wrongdoer [defendant], it is the wrongdoer who should bear the costs.'"41 See id. at 1046 (quoting Bigby v. City of Chicago, 927 F.2d 1426, 1428 (7th Cir.1991)) (second alteration in original). There, as here, the defendant had no "right to participate" in relator's share nego......
-
Binta B. v. Gordon
...Sch. Dist., 284 F.3d 1163, 1168 (9th Cir.2002); Rum Creek Coal Sales v. Caperton, 31 F.3d 169, 177 (4th Cir.1994); Bigby v. City of Chicago, 927 F.2d 1426, 1428 (7th Cir.1991). Applied to the facts of this case, we conclude that Zipes discourages sticking defendant with the bill for plainti......
-
Dickinson v. Indiana State Election Bd.
...which supports a plaintiff in a multi-party case may be entitled to relief from fees and costs, see, e.g., Bigby v. City of Chicago, 927 F.2d 1426, 1428-29 (7th Cir. 1991); May v. Cooperman, 578 F.Supp. 1308, 1312-16 (D.N.J.1984), aff'd and appeal dismissed, 780 F.2d 240 (3d Cir.1985), appe......
-
Dupuy v. McEwen
...request must be evaluated "under the terms of the statute" to determine whether Defendants must pay those fees. Bigby v. City of Chicago, 927 F.2d 1426, 1428-29 (7th Cir. 1991). The statute at issue here allows a court to award "a reasonable attorney's fee" to "the prevailing party." 42 U.S......