Gates v. Towery

• Decision Date: 29 November 2005
• Docket Number: No. 05-1079.,05-1079.
• Citation: 430 F.3d 429
• Parties: Elton GATES and Luster Nelson, individually and on behalf of a class, Plaintiffs-Appellees, v. B. TOWERY, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

430 F.3d 429

Elton GATES and Luster Nelson, individually and on behalf of a class, Plaintiffs-Appellees, v. B. TOWERY, et al., Defendants-Appellants.

No. 05-1079.

United States Court of Appeals, Seventh Circuit.

Argued September 8, 2005.

Decided November 29, 2005.

Thomas Peters (argued), Chicago, IL, for Plaintiffs-Appellees.

Julian Henriques (argued), Office of the Corporation Counsel, Chicago, IL, for Defendants-Appellants.

Before FLAUM, Chief Judge, and EASTERBROOK and ROVNER, Circuit Judges.

EASTERBROOK, Circuit Judge.

In this interlocutory appeal under Fed.R.Civ.P. 23(f), the City of Chicago contends that the district judge should not have certified a class. (We refer to all defendants as Chicago; the other defendants are public employees represented by the City.) Certification is improper, Chicago maintains, because the case is moot; according to the City, a tender of full compensation to both representative plaintiffs before a class had been certified ended the controversy. Although expiration of a representative's personal claims after certification does not halt the litigation if other class members have live interests, see Indianapolis School Commissioners v. Jacobs, 420 U.S. 128, 95 S.Ct. 848, 43 L.Ed.2d 74 (1975), pre-certification mootness leaves at most an opportunity for new parties to intervene and carry on. See United States Parole Comm'n v. Geraghty, 445 U.S. 388, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980). As no other champion has appeared, the City contends that the class certification is improper. The district judge, however, concluded that the proffered relief was incomplete and that the original plaintiffs' claims remain justiciable.

A great deal of ink has been spilled in the appellate briefs addressing the question whether plaintiffs' demand for attorneys' fees staves off mootness. Chicago argues that it does not — not only because (in its view) Buckhannon Board & Care Home, Inc. v. West Virginia Dep't of Health & Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001), forecloses an award, but also because a quest for fees does not justify a substantive adjudication made unnecessary by the mootness of the original claim. "The mere fact that continued adjudication would provide a remedy for an injury [the cost of legal services] that is only a byproduct of the suit itself does not mean that the injury is cognizable under Art. III." Diamond v. Charles, 476 U.S. 54, 70-71, 106 S.Ct. 1697, 90 L.Ed.2d 48 (1986). See also, e.g., Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 107-08, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998); Lewis v. Continental Bank Corp., 494 U.S. 472, 480, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990). But see Citizens for a Better Environment v. Steel Co., 230 F.3d 923 (7th Cir.2000) (discussing limits on this principle). How Buckhannon applies to situations of the kind presented here is a complex question that we need not address. Nor need we decide whether (and, if so, when) defendants are entitled to pay off representative plaintiffs and decapitate the class, because the City's tender was incomplete and the representatives' personal claims survive. Cf. Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 100 S.Ct. 1166, 63 L.Ed.2d 427 (1980); Holstein v. Chicago, 29 F.3d 1145, 1147 (7th Cir.1994).

Plaintiffs challenge the procedures that Chicago uses for dealing with property that the police seize when making custodial arrests. The police give each person a receipt for whatever has been taken. This receipt says that the person will be notified when the property can be retrieved. At the time Elton Gates and Luster Nelson (the two plaintiffs) were arrested, however, Chicago systematically failed to carry through with that promise. Neither Gates nor Nelson received notice, even though the City does not assert any entitlement to retain the property ($113 in cash taken from Gates and $59 from Nelson). Each inquired at the stationhouse where he had been taken following his arrest; each received a runaround. Police said that the money would be returned only after the arresting officer agreed to do so and signed an appropriate form. This was baloney — but the desk officers' insistence sent Gates and Nelson on futile searches for the arresting officers, who never seemed to be at the stationhouses when they called, and who never signed any release papers.

After Gates and Nelson filed this suit contending that Chicago violates the due process clause of the fourteenth amendment by retaining property to which it has no right, failing to notify the owners, and making return depend on the whim of the arresting officer, Chicago responded that each should have asked the judge in the criminal prosecution to order the money's return (or perhaps filed an independent civil suit against the City) — though this is not what the inventory receipt and its own Police Department told them to do. Chicago has since changed the language on the receipts and may have instructed the police to stop misleading arrestees about how to get their property back. But the plaintiffs maintain that they and the class of other persons whose property is still in Chicago's possession are entitled not only to damages but also to prospective relief notwithstanding the City's new policies.

Plaintiffs sought, for themselves and the class: (a) return of the seized property; (b) prejudgment interest; (c) compensatory damages for any injury attributable to loss of the property's use; and (d) compensation for the value of their time devoted to its retrieval. Counsel for the City sent Gates a check for $113; the cover letter promised that interest would follow. A check for $59 to Nelson (and another promise of interest) came later. Counsel for plaintiffs returned these checks because the City had omitted costs and damages (not to mention attorneys' fees — which we won't mention again). Plaintiffs paid more than...