Gautreaux v. Chicago Housing Authority

• Decision Date: 01 November 1982
• Docket Number: No. 81-2223,81-2223
• Citation: 690 F.2d 601
• Parties: Dorothy GAUTREAUX, et al., Plaintiffs-Appellees, v. The CHICAGO HOUSING AUTHORITY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 601

690 F.2d 601

Dorothy GAUTREAUX, et al., Plaintiffs-Appellees, v. The CHICAGO HOUSING AUTHORITY, Defendant-Appellant.

No. 81-2223.

United States Court of Appeals Seventh Circuit.

Argued May 10, 1982.

Decided Aug. 30, 1982.

Rehearing and Rehearing En Banc Denied Nov. 1, 1982.

Patrick W. O'Brien, Mayer, Brown & Platt, Chicago, Ill., for defendant-appellant.

Robert J. Vollen, Business & Professional People for the Public Interest, Chicago, Ill., for plaintiffs-appellees.

Before CUMMINGS, Chief Judge, DAVIS, Associate Judge, ^* and PELL, Circuit Judge.

CUMMINGS, Chief Judge.

This appeal is a byproduct of the celebrated Gautreaux case, whose complexities and history are summarized in Gautreaux v. Landrieu, 523 F.Supp. 665, 667-669 (N.D.Ill.1981). The issue here is relatively narrow: the propriety of an interim award of attorney's fees under 42 U.S.C. § 1988 to Alexander Polikoff as the representative of counsel for the plaintiff class. ¹ District Judge Crowley ordered the Chicago Housing Authority (CHA) to pay $375,375 for more than 3,000 hours of work between 1965 and 1980. ² Gautreaux v. Landrieu, 523 F.Supp. 684 (N.D.Ill.1981). On appeal CHA argues that Judge Crowley erred because

(1) the suit against CHA (i.e., 66-C-1459) ³ was not "pending" on October 19, 1976, when the Civil Rights Attorney's Fees Awards Act of 1976 (codified at 42 U.S.C. § 1988) became effective, and therefore no fees are awardable under the statute although plaintiffs have prevailed in the litigation as a whole;

(2) if any aspects of the suit could be considered pending on October 19, 1976, they were only supplemental enforcement proceedings in which the plaintiffs did not prevail as Section 1988 requires;

(3) the petition for fees was not timely filed; and

(4) the award of fees at a rate of $125 per hour for 3,003 hours was an abuse of discretion.

Finding all these arguments unpersuasive, we affirm the district court's fee award.

I

The most substantial issue CHA presents is whether the Gautreaux litigation was pending on October 19, 1976. ⁴ Congress enacted the Fees Awards Act in 1976 in response to the Supreme Court's decision in Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (courts are not free to award attorney's fees to parties serving as "private attorneys general" absent specific legislative authorization). The Act provides that "(i)n any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318, or title VI of the Civil Rights Act of 1964, 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." Although the statute is silent on the point, the legislative history makes clear that Congress intended Section 1988 as amended to "apply to all cases pending on the date of enactment (October 19, 1976) as well as all future cases, Bradley v. Richmond School Board, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974)." H.R.Rep.No.94-1558, 94th Cong., 2d Sess. 4, n. 6. ⁵

The issue posed in this appeal is how that legislative direction is to be applied to equitable proceedings that have lasted sixteen years and are not yet concluded. Put differently, the question is whether the test that has developed for determining pendency is to be applied in a technical or a common-sense fashion.

In the formulation of the test on which the parties and the district judge focused, a case is pending if there is an "active" issue that has not been finally resolved at the critical time. An "active" issue is defined-by a process of inclusion and exclusion-as

a substantive claim upon which a district court has not acted, either in the first instance or on remand, or a substantive claim whose disposition by the district court, or the Court of Appeals, either is on appeal or is appealable. The mere pendency on the date of enactment of an attorney fees act of supplemental proceedings to effectuate a prior final judgment is not, in our opinion, sufficient to convert an action into such a "pending action" as to warrant an award of attorney's fees under such an act pursuant to the Bradley -type retroactive application of the act.

Peacock v. Drew Municipal Separate School Dist., 433 F.Supp. 1072, 1075 (N.D.Miss.1977) (emphasis added), affirmed on basis of district court opinion, 611 F.2d 1160 (5th Cir. 1980) (per curiam ).

CHA takes a literal view of the test. The district court had found in 1969 that CHA engaged in intentional racial discrimination in its low-income housing program, 296 F.Supp. 907 (N.D.Ill.1969). The court had entered a remedial order shortly thereafter, 304 F.Supp. 736 (N.D.Ill.1969). CHA had taken no appeal from either decision. Therefore, it argues, all subsequent proceedings (whether they generated appeals or not) were efforts to effectuate the 1969 judgment and hence "supplemental." ⁶ (Br. 17-29.) The district judge, by contrast, took a common-sense approach. He viewed the district court's broad retention of jurisdiction ⁷ and its frequent modifications of the 1969 injunction ⁸ as evidence that "continuing judicial proceedings that would involve active controversy were expressly contemplated." 523 F.Supp. at 689. Looking at the entire course of the litigation, he found no justification for treating the 1969 order, though it was admittedly final in the sense of "non-appealable," as so conclusive of the parties' dispute that the next twelve years of litigation could be called "supplemental proceedings to effectuate a prior final judgment." Id. at 688-689.

Like the district judge, we favor a common-sense approach. It is more consistent with the history of this particular lawsuit, with other cases in which the applicability of the Fees Awards Act has been an issue, and with the nature of equitable proceedings in general not to divide a continuously active equitable case into a host of separate smaller matters.

Gautreaux Revisited

We begin with a summary of how this litigation has gone, what CHA has been ordered to do, and what its track record for compliance is. The purpose of this summary is to demonstrate the artificiality of CHA's conceit that the case ended, for Section 1988 purposes, in 1969 and to refute an alternative CHA argument, namely, that only the companion case against the Department of Housing and Urban Development (HUD) was pending in 1976 and that "CHA's marginal participation in the case against HUD should (not) affect its liability for fees in the other case." Reply Br. 7. ⁹

Judge Austin's original remedial order, 304 F.Supp. at 737-743, had two focuses: CHA was to modify its tenant assignment system, which had previously resulted in a high degree of racial segregation in existing housing. CHA was also to adopt new site selection and construction procedures to ensure that new housing was not concentrated in segregative patterns or built on a huge and dehumanizing scale. CHA points out that "the tenant assignment plan was never an issue after (1969)" (Br. 26), but it neglects to mention that progress on the site selection and construction aspect has been almost nonexistent. ¹⁰

Historically, CHA's procedure for selecting housing sites was to submit proposals to the Chicago City Council. After the July 1969 order, it submitted no proposals, arguing that matters were best postponed until after the April 1971 mayoral elections. This Court affirmed Judge Austin's order directing CHA to submit proposals to the City Council by September 20, 1970. 436 F.2d 306 (7th Cir. 1970), certiorari denied, 402 U.S. 922, 91 S.Ct. 1378, 28 L.Ed.2d 661. Thereafter it was the City Council's turn to be recalcitrant. It conducted no hearings on the CHA submissions. Accordingly Judge Austin ordered CHA to bypass the City Council, even though Council approval was a procedural step required by Illinois statute. A divided panel of this Court affirmed, 480 F.2d 210 (7th Cir. 1973), certiorari denied, 414 U.S. 1144, 94 S.Ct. 895, 39 L.Ed.2d 98. In both of these appeals CHA conduct was directly in issue and CHA was an appellant in this Court.

After the consolidation of the CHA and HUD cases in 1971, CHA also found itself involved in the consolidated HUD case. It is disingenuous, however, to call CHA's participation "marginal" (CHA Reply Br. 7). For example, CHA intervened on appeal to challenge Judge Austin's decision to enjoin HUD from disbursing $26 million in Model Cities funding to Chicago. We reversed, 457 F.2d 124 (7th Cir. 1972), on the ground that there was an insufficient connection between the Model Cities Program and CHA's segregation of low-income housing. CHA was also a party to the appeal of Judge Austin's decision restricting the scope of HUD and CHA remedial activities to the city limits of Chicago-a decision we also reversed, 503 F.2d 930 (7th Cir. 1974), affirmed sub nom. Hills v. Gautreaux, 425 U.S. 284, 96 S.Ct. 1538, 47 L.Ed.2d 792. CHA's interest in both appeals is not hard to discern. It would be under increased pressure to comply with Judge Austin's orders if its failure to do so could jeopardize the City's receipt of other federal funds; and it wanted to be sure that if its site selection and construction program had to be metropolitan in scope, HUD's resources would be committed on the same scale. CHA did not attempt to secure Supreme Court review of our decision about a metropolitan remedy. Only HUD was a petitioner in Hills v. Gautreaux, 425 U.S. 284, 96 S.Ct. 1538, 47 L.Ed.2d 792. But the Supreme Court's decision made clear that on remand CHA would be equally implicated in the metropolitan relief that the district judge could properly order: ¹¹

Both CHA and HUD have the authority to operate outside the Chicago city limits. * * * (I)t is entirely appropriate and consistent with Milliken to order CHA and HUD to attempt to create housing alternatives for the respondents in the Chicago suburbs.

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