Jaffee v. Redmond, 97-2447

Citation142 F.3d 409
Decision Date20 April 1998
Docket NumberNo. 97-2447,97-2447
PartiesCarrie JAFFEE, as Special Administrator for Ricky Allen, Sr., Plaintiff-Appellant, v. Marylu REDMOND, Hoffman Estates Police Officer, and Village of Hoffman Estates, Illinois, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Kenneth N. Flaxman, Ronald L. Futterman, Craig B. Futterman (argued), Futterman & Howard, Chicago, IL, for Plaintiff-Appellant.

Gregory E. Rogus, Paul E. Wojcicki (argued), Segal, McCambridge, Singer & Mahoney, Chicago, IL, for Defendants-Appellees.

Before WOOD, Jr., COFFEY, and FLAUM, Circuit Judges.

FLAUM, Circuit Judge.

This is a sequel to our opinion in Jaffee v. Redmond, 51 F.3d 1346 (7th Cir.1995)(Jaffee I). In Jaffee I we overturned a jury's verdict in favor of the plaintiff on her constitutional and Illinois Wrongful Death Act claims. See id. at 1357-58. We held that the district court had erroneously permitted the plaintiff to introduce evidence of communications between the individual defendant and a social worker in support of her constitutional claim; the Supreme Court affirmed our decision and resolved a split among the circuits by recognizing a federal evidentiary privilege for confidential communications between licensed psychotherapists and their patients. See Jaffee v. Redmond, 518 U.S. 1, 15-17, 116 S.Ct. 1923, 1931, 135 L.Ed.2d 337 (1996). Following remand the case was again tried to a jury, which found for the plaintiff on her constitutional claim and awarded her money damages under 42 U.S.C. § 1983.

In considering Jaffee's petition for attorney's fees under 42 U.S.C. § 1988, the district court found that it was reasonable for Jaffee to have argued against the evidentiary privilege at her first trial, which at the time was a question of first impression in this Circuit. The court concluded, however, that it would not award Jaffee the fees that she had incurred by arguing the privilege question in this Court and in the Supreme Court, for this argument did not "contribute to" her ultimate success. The court also denied Jaffee all fees incurred for the second trial because the retrial was necessitated by her ultimately incorrect argument against the privilege at the first trial. Jaffee challenges the district court's denial of fees and associated costs. We reverse and remand.

I. Background

The underlying facts of this case are set out fully in Jaffee I. See 51 F.3d at 1348-52. We discuss them here only to the extent that they are relevant to the issues presented by this appeal. Carrie Jaffee is the administrator of the estate of her son, Ricky Allen, Sr. Appellee Marylu Redmond shot and killed Allen while she was on patrol as a police officer for the Village of Hoffman Estates. Jaffee brought suit in federal court on behalf of her son's estate, alleging that Redmond had violated Allen's constitutional rights and seeking damages under both § 1983 and the Illinois Wrongful Death Act.

In the course of pretrial discovery Jaffee learned that, following the shooting, Redmond had participated in counseling sessions with a licensed clinical social worker; Jaffee sought access to the social worker's notes for use at trial in support of her § 1983 claim. The defendants resisted discovery of the notes, arguing that Redmond's conversations with the social worker were protected against involuntary disclosure by a federal psychotherapist-patient privilege. This Circuit had not addressed the issue in any prior cases, and Judge Milton Shadur, presiding over the first trial, refused to recognize such a privilege. Despite the district court's order to disclose the notes, the defendants refused to comply. At the close of trial, the district court told the jury that the defendants had no legal justification for refusing to turn over the notes and instructed the jury that it could presume that the notes' contents were not favorable to the defendants. The jury awarded Jaffee $45,000 on her federal claim and $500,000 on her state-law claim. See id. at 1350-52.

The defendants raised two arguments on appeal. We rejected their first argument, which claimed that the district court erred in instructing the jury on the use of deadly force by a police officer. See id. at 1352-54. However, we found merit in their second argument, holding that the district court erred in not recognizing a privilege under Rule 501 of the Federal Rules of Evidence for confidential communications between a licensed psychotherapist and a patient. See id. at 1354-58. In recognizing the psychotherapist-patient privilege, we joined the position already adopted by two circuits and opposed by four others. Because the district court's erroneous instructions to the jury regarding the privilege issue prejudiced the defendants, we reversed the district court's judgment and remanded the case for a new trial. Hoping to resurrect her favorable jury verdict, Jaffee petitioned the Supreme Court for certiorari. The Court granted the petition, see 516 U.S. 930, 116 S.Ct. 334 (1995), and following oral argument, the Court affirmed our holding in favor of the privilege. See 518 U.S. at 17-19, 116 S.Ct. at 1932.

The case was then remanded for a new trial before Judge Harry Leinenweber. At the second trial, Jaffee sought $100,000 in damages on her § 1983 claim and $2,000,000 in damages on her state-law wrongful death claim. Jaffee again prevailed on her civil rights claim; the jury awarded her the full $100,000. Unlike in the first trial, however, the jury this time found for the defendants on Jaffee's state-law claim.

Jaffee petitioned the district court for attorney's fees and expenses as a prevailing party under 42 U.S.C. § 1988. The total amount requested was $911,928.47--the sum of the fees and costs incurred for the first trial, the original appeal in this Court, the proceedings in the Supreme Court, the second trial, and the preparation of the fee petition in the district court. Responding to the defendants' motion that the fees and costs incurred in arguing the privilege issue should not be awarded, Judge Leinenweber found that "it was certainly reasonable for plaintiffs to pursue the privilege issue." After all, this Circuit had not yet resolved the issue and the circuits that had addressed it were divided. The court therefore found it appropriate to award fees to Jaffee for the time spent arguing against the privilege at the first trial. This brought the total awarded to Jaffee for the first trial to $272,259 in fees and $18,973 in costs.

Judge Leinenweber took a different view of Jaffee's request for fees incurred in arguing the privilege issue on appeal. Noting that the defendants ultimately prevailed on the issue, the court reasoned that "[t]he privilege battles ... did not assist plaintiffs in their ultimate victory" at the second trial. Because "plaintiffs' argument against a privilege did not contribute at all to their success", the court denied Jaffee the fees incurred in arguing against the privilege both in this Court and in the Supreme Court. The court therefore awarded Jaffee one-half of the fees and expenses incurred in Jaffee I; this compensated her for the time spent on the deadly force jury instruction issue, which was the defendants' other argument raised in Jaffee I. This amounted to $42,942.64 in fees and $257.64 in costs. Furthermore, because only the psychotherapist privilege issue was before the Supreme Court, Judge Leinenweber did not award any fees related to the Supreme Court proceedings. Moreover, the court refused to award any fees for work on the second trial, reasoning that "that trial was necessitated by plaintiffs having incorrectly argued against a privilege at the first trial." Finally, Judge Leinenweber found reasonable Jaffee's request for fees and costs for preparing the fee petition; he awarded $31,622.95 in fees and $178.14 in costs.

All told, the district court awarded Jaffee $446,406.73 in fees and $19,409.10 in costs. The total fees disallowed by the court amounted to $446,112.64 plus costs. Jaffee now appeals the district court's denial of these fees and costs.

II. Analysis
A. Standard of Review

We generally review a district court's award of attorney's fees pursuant to § 1988 for an abuse of discretion. See, e.g., Briggs v. Marshall, 93 F.3d 355, 361 (7th Cir.1996); Spellan v. Board of Educ., 59 F.3d 642, 645 (7th Cir.1995). As the Supreme Court has explained, this deferential standard of review "is appropriate in view of the district court's superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are factual matters." Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983). When a district court exercises its discretion to deny fees as a result of its subjectively superior understanding of the litigation, we routinely affirm the decision of the district court. See, e.g., Merriweather v. Family Dollar Stores, 103 F.3d 576, 582-84 (7th Cir.1996); Estate of Borst v. O'Brien, 979 F.2d 511, 515-17 (7th Cir.1992); Tomazzoli v. Sheedy, 804 F.2d 93, 97-99 (7th Cir.1986) (per curiam).

However, when a district court denies attorney's fees to a prevailing party under § 1988 as a result of applying a principle of law, the justifications for the generally deferential standard of review are absent. Therefore, as with all questions of law, we review de novo the alleged legal errors made by the district court in denying fees. See, e.g, Zagorski v. Midwest Billing Servs., Inc., 128 F.3d 1164, 1166 (7th Cir.1997) (per curiam); Spanish Action Comm. v. City of Chicago, 811 F.2d 1129, 1134 (7th Cir.1987); see also Cabrales v. County of Los Angeles, 935 F.2d 1050, 1052 (9th Cir.1991) ("While awards of attorney's fees pursuant to 42 U.S.C. § 1988 are generally reviewed for abuse of discretion, any elements of legal analysis and statutory interpretation which figure in the district court's decision...

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