Bond v. Stanton

• Decision Date: 19 September 1980
• Docket Number: Nos. 79-1759,79-1799 and 79-1800,s. 79-1759
• Citation: 630 F.2d 1231
• Parties: Louise BOND, Individually and on behalf of her minor children, et al., Plaintiffs-Appellants, Cross-Appellees, v. Wayne A. STANTON, Individually and in his capacity as Administrator of the Indiana State Department of Public Welfare, et al., Defendants-Appellees, Cross-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1231

630 F.2d 1231

Louise BOND, Individually and on behalf of her minor children, et al., Plaintiffs-Appellants, Cross-Appellees, v. Wayne A. STANTON, Individually and in his capacity as Administrator of the Indiana State Department of Public Welfare, et al Defendants-Appellees, Cross-Appellants.

Nos. 79-1759, 79-1799 and 79-1800.

United States Court of Appeals Seventh Circuit.

Argued Jan. 4, 1980.

Decided Sept. 19, 1980.

Ivan E. Bodensteiner, Valparaiso, Ind., for plaintiffs-appellants, cross-appellees.

Ronald J. Semler, Indianapolis, Ind., for defendants-appellees, cross-appellants.

Before FAIRCHILD, Chief Circuit Judge, CUDAHY, Circuit Judge, and McGARR, District Judge. ^*

CUDAHY, Circuit Judge.

The instant appeal in this lengthy litigation concerns a prevailing plaintiff's entitlement to attorney's fees under the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988.

Plaintiffs, representing the class of persons under 21 years of age residing in Indiana who are eligible for Medicaid, originally brought this class action in 1973 pursuant to 42 U.S.C. § 1983, challenging the failure of various Indiana state officials to adopt and implement an early and periodic screening, diagnosis and treatment ("EPSDT") program for needy children as mandated by federal law, 42 U.S.C. § 1396 et seq. The district court granted summary judgment for plaintiffs and ordered defendants to submit a plan for implementation of an EPSDT program. 372 F.Supp. 872 (N.D.Ind.1974). This court affirmed, 504 F.2d 1246 (7th Cir. 1974) ("Bond I "), and the United States Supreme Court denied certiorari. 420 U.S. 984, 95 S.Ct. 1415, 43 L.Ed.2d 666 (1975).

Subsequently, in an unpublished order, the district court assessed attorney's fees against defendants in their official capacities for time spent by plaintiffs in obtaining the summary judgment in the district court. The fee award was based, inter alia, on defendants' bad faith. ¹ This court affirmed the award, agreeing that the district court's finding of bad faith was amply supported by the record, and holding that the award was not barred by the eleventh amendment. 528 F.2d 688 (7th Cir. 1976) ("Bond II "). The Supreme Court, however, vacated our judgment and remanded the case to us "for further consideration in light of Pub.L.No.94-559, 90 Stat. 2641 (Oct. 19, 1976)." 429 U.S. 973, 97 S.Ct. 479, 50 L.Ed.2d 581 (1976). Pub.L.No.94-559 is the Civil Rights Attorney's Fees Awards Act (the "Fees Act" or the "Act"), which amended 42 U.S.C. § 1988. On remand, we again affirmed the award of attorney's fees, this time on the basis of the Fees Act. 555 F.2d 172 (7th Cir. 1977) ("Bond III "). ² Certiorari was denied by the Supreme Court on July 3, 1978. 438 U.S. 916, 98 S.Ct. 3146, 57 L.Ed.2d 1161 (1978).

On January 23, 1979, plaintiffs filed a motion in the district court seeking 1) supplemental fees for the work included in the original award, 2) fees for time spent in the trial court on the merits of the case subsequent to the entry of summary judgment and prior to the district court's decision approving the state's plan on August 6, 1976, 3) fees for hours spent on the appellate aspects of the merits of the case and 4) fees for time spent litigating entitlement to attorney's fees before the district court, this court and the Supreme Court. In an unpublished order dated June 6, 1979, the district court 1) declined to supplement the original fee award, 2) awarded fees for the time spent on the merits of the case between the issuance of summary judgment and approval of the state's plan, 3) denied fees for appellate work on the merits of the case and 4) denied fees for time spent litigating entitlement to fees.

Plaintiffs argue on this appeal that they are entitled to an award for their appellate work on the merits and for time spent litigating the fee question. They have not appealed from the district court's refusal to supplement the original award. On their cross-appeal, defendants contest the awarding of fees for time spent by plaintiffs' attorneys subsequent to the granting of summary judgment. We affirm this post-summary judgment award of the district court, and we hold that plaintiffs' attorneys are also entitled to compensation for their appellate work on the merits and for time expended in establishing their entitlement to fees.

The Civil Rights Attorney's Fees Awards Act declares that:

In any action or proceeding to enforce a provision of §§ 1977, 1978, 1979, 1980, and 1981 of the Revised Statutes (42 U.S.C. §§ 1981-1983, 1985, 1986), . . . the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.

90 Stat. 2641, 42 U.S.C. § 1988. Although the Act on its face provides that the decision to award attorney's fees is a matter committed to the discretion of the court, we observed in Dawson v. Pastrick, 600 F.2d 70, 79 (7th Cir. 1979), that:

(T)he history of the provision makes it clear that the trial court's discretion is narrow: "It is intended that the standards for awarding fees be generally the same as under the fee provisions of the 1964 Civil Rights Act. A party seeking to enforce the rights protected by the statutes covered by S. 2278, if successful, 'should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust.' Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968). S.Rep.No.94-1011, 94th Cong., 2d Sess. 4, reprinted in (1976) U.S.Code Cong. & Admin.News 5912."

Thus, "a prevailing plaintiff should receive fees (under the Act) almost as a matter of course." Davis v. Murphy, 587 F.2d 362, 364 (7th Cir. 1978); Dawson, 600 F.2d at 79. Plaintiffs' status as the prevailing party in this case has already been established in Bond I. 504 F.2d at 1251.

Turning first to the district court's fee award for the period subsequent to the entry of summary judgment and prior to approval of the state's plan, defendants argue that while plaintiffs incontestably prevailed in the district court's summary judgment order of March 22, 1974, they only "tilted at windmills" thereafter, accomplishing nothing of substantial benefit to the class which would entitle them to an award of fees. This argument, not raised below, is without merit. The record reveals that plaintiffs' diligent efforts to secure compliance with the district court's order were effectively catalytic to the state's eventual submission of an acceptable EPSDT plan. The precise plan approved by the district court on August 6, 1976, was not submitted by the state until July 16, 1976, over two years after the entry of summary judgment. During that period, plaintiffs obtained an order establishing a timetable and method for implementation, engaged in extensive discovery with respect to defendants' initially proposed plan and filed comments and objections concerning that plan which eventually resulted in defendants' submission of the revised plan, which the court approved. We agree with the district court that plaintiffs' efforts in this regard were "precisely the type of work for which Congress anticipated attorneys would be remunerated under 42 U.S.C. § 1988." Were we to conclude otherwise, plaintiffs' perseverance at the remedial stage of this litigation, as crucial to the obtaining of adequate relief for the class as plaintiffs' success at the liability stage, would go uncompensated, in clear contravention of the policy of the Act that the prevailing party's attorneys be compensated for their time so as to encourage the bringing of meritorious suits of this nature.

Defendants also maintain that the district court erred in granting plaintiffs' request for fees incurred in securing compliance with the summary judgment because the fee request was not made within the 10-day period allowed for motions to alter or amend a judgment by Fed.R.Civ.P. 59(e). However, in contrast to the usual case where attorney's fees are not provided for by statute and are sought as part of the litigation itself, e. g. Stacy v. Williams, 446 F.2d 1366 (5th Cir. 1971), 42 U.S.C. § 1988 provides for the award of attorney's fees "as part of the costs." Thus, as the Fifth Circuit remarked in Knighton v. Watkins, 616 F.2d 795, 797 (5th Cir. 1980):

(A) motion for attorney's fees (pursuant to 42 U.S.C. § 1988) is unlike a motion to alter or amend a judgment. It does not imply a change in the judgment, but merely seeks what is due because of the judgment. It is, therefore, not governed by the provisions of Rule 59(e). Cf. Fed.R.Civ.P. 58 ("(e)ntry of the judgment shall not be delayed for the taxing of costs").

Fed.R.Civ.P. 54(d), which governs the awarding of costs, does not impose a time limit within which a motion for costs must be made. Thus, plaintiffs' fee request for time spent securing compliance with the summary judgment was properly entertained, and granted, by the district court.

Plaintiffs also sought attorney's fees in the district court for time spent successfully defending the district court's decision on the merits on appeal. While recognizing that it possessed the authority to grant fees for appellate work, the district court declined to do so, almost exclusively on the basis of this court's order of June 3, 1975. That order denied the requested fees because, inter alia, the defendants were not found to have prosecuted their appeal in bad faith. The order was entered, however, prior to passage of the Fees Act.

The Fees Act indisputably applies to all cases pending on the date of its enactment. Hutto v. Finney, 437 U.S. 678, 694-95, n.23, 98 S.Ct. 2565, 2576, 57 L.Ed.2d 522 (1978). Indeed, as we remarked in Bond III, "(t)he legislative history . . . clearly indicates that Congress intended to cover not only pending cases generally but this case in particular." 555 F.2d at 174 (emphasis supplied). We are accordingly bound to reconsider our earlier...