Alliance End Repress v. City of Chicago ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 02-3981, 02-3982
ALLIANCE TO END REPRESSION, et al.,
Plaintiffs-Appellees/Cross-Appellants,
v.
CITY OF CHICAGO,
Defendant-Appellant/Cross-Appellee.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
Nos. 74 C 3268, 74 C 3295—Joan B. Gottschall, Judge.
____________
ARGUED DECEMBER 11, 2003—DECIDED JANUARY 28, 2004
____________
Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.
POSNER, Circuit Judge. In 1974 and 1975, two classes of
plaintiffs, represented by the Alliance to End Repression
and the American Civil Liberties Union respectively,
brought suit under 42 U.S.C. § 1983 against the United
States and the City of Chicago. The suit charged that the
FBI’s Chicago office and the Chicago Police Department’s
intelligence division were violating the class members’ First
Amendment rights by overly intrusive and improperly mo-
2 Nos. 02-3981, 02-3982
tivated investigations of alleged subversive activities. In
1981, before a trial could be held, the defendants agreed to
a consent decree, which was approved by the district court
the following year, imposing detailed restrictions on the
defendants’ investigative authority. 561 F. Supp. 537 (N.D.
Ill. 1982). The decree did not, however, vest monitoring or
other responsibilities in the plaintiffs or their lawyers.
In 1997, long after this court had interpreted the decree as
imposing fewer restrictions on the FBI than the district court
had thought it did, 742 F.2d 1007 (7th Cir. 1984) (en banc),
the City asked the district court to modify it to make the
restrictions on the City less onerous. The district court re-
fused even though the judge who had approved the decree
in the first place had said it was so strict that she wouldn’t
have awarded the plaintiffs such draconian relief even if
they had proved all their allegations in a trial. 561 F. Supp.
at 551.
The City appealed from the refusal to modify the decree.
It pointed out that it had complied with the decree through-
out the entire period of almost two decades in which it had
been in force, that during this period the Supreme Court
and this court had become ever more emphatic that the fed-
eral judiciary must endeavor to return the control of local
governmental activities to local government at the earliest
possible opportunity compatible with achievement of the
objectives of the decree that transferred that control to the
federal courts, and that the culture of law enforcement in
Chicago and the character of the threats to public safety by
ideologically motivated criminals had so far changed as to
make much of the decree obsolete. We agreed with the City
and ordered that its motion be granted in its entirety. 237
F.3d 799 (7th Cir. 2001). We pointed out that the decree was
frustrating the efforts of the police to cope with the prob-
lems of today because earlier generations of police had
Nos. 02-3981, 02-3982 3
coped improperly with the problems of yesterday. Because
of what the police department’s “Red Squad” had done
many years ago, the Chicago police would, unless the de-
cree was modified, labor indefinitely under severe handi-
caps from which other police forces were free. Under the
modified decree, which forbids investigations intended to
impede freedom of expression and requires the City to
commission independent periodic audits to determine the
City’s compliance, First Amendment rights would, we
held, be secure, while under the original decree the public
safety was insecure and the prerogatives of local govern-
ment scorned. And this was before the terrorist attacks on
the United States of September 11, 2001, brought about a
renewed appreciation of the weight of security consider-
ations in determining the point of balance between safety
and liberty that we call our civil liberties.
All this is by way of background to the present appeal
(and cross-appeal, in which the ACLU, however, does not
join), which is by the City from an award by the district
court to the class representatives of more than $1 million in
attorneys’ fees. That is on top of at least $450,000 in fees
awarded (and paid) for legal services rendered earlier in the
proceedings; the true figure is undoubtedly higher but the
parties’ records are incomplete, doubtless because of the
great age of the case.
The $1 million award is for the following legal services
rendered between 1994 and 2001: two proceedings for con-
tempt of the decree, which failed; the opposition, just de-
scribed, which also failed, to the modification of the decree;
and efforts, which also bore no fruit so far as anyone can
say, to monitor the City’s compliance with the decree—no
fruit, that is, except the failed contempt proceedings. The
order is appealable now because the activities for which the
fees were awarded are complete in a sense that will become
clearer in our discussion of the merits.
4 Nos. 02-3981, 02-3982
The awarding of attorneys’ fees under 42 U.S.C. § 1983
is governed by 42 U.S.C. § 1988(b), which authorizes such
awards only to the prevailing party. See Buckhannon Board
& Care Home, Inc. v. West Virginia Dept. of Health & Human
Resources, 532 U.S. 598 (2001). The plaintiffs argue that by
virtue of obtaining the consent decree in the first place they
became the prevailing party for the entire life of the decree
(which contains no sunset provision)—indeed, beyond, for
they contend that even if the decree had been dissolved
in 2001, rather than just being modified, they would be en-
titled to the legal fees they incurred in opposing that result,
provided only that the fees were reasonable in amount
and the opposition to dissolution not frivolous. They base
this claim primarily on the Supreme Court’s decision in
Pennsylvania v. Delaware Valley Citizens’ Council for Clean
Air, 478 U.S. 546, 557-61 (1986), which allowed the reim-
bursement of attorneys’ fees for postjudgment proceedings
brought by the plaintiffs’ lawyers. But those postjudgment
proceedings were at least partly successful. These plaintiffs’
postjudgment proceedings were not. They argue that they
shouldn’t be penalized for failure because they were duty-
bound to oppose the modification of the decree, to monitor
compliance with the decree before and after it was modi-
fied, and to bring contempt proceedings against anyone
who they thought might be violating it. In support of the ar-
gument they cite our decision in Ustrak v. Fairman, 851
F.2d 983, 990 (7th Cir. 1988), where we said that the plain-
tiff, having won a judgment in the district court, “had no
choice” but to incur attorneys’ fees to defend the judgment
in our court. But in that case, too, the plaintiff was success-
ful—not entirely, but enough to make him the prevailing
party. Had he lost on appeal he would not have been en-
titled to any award of fees.
In only two classes of case governed by section 1988(b)
or similar fee-shifting provisions (see Hensley v. Eckerhart,
Nos. 02-3981, 02-3982 5
461 U.S. 424, 433 n. 7 (1983)) has a plaintiff who obtained no
relief in postdecree proceedings nevertheless been awarded
fees for those proceedings. The first class consists of cases
in which the consent decree itself authorized the court to
award fees to the plaintiff that would be incurred in dis-
putes brought to the court in the wake of the decree. Plyler
v Evatt, 902 F.2d 273, 276 n. 1, 279 n. 4 (4th Cir. 1990); Turner
v. Orr, 785 F.2d 1498, 1500 nn. 2, 3 (11th Cir. 1986). The
contractual entitlement (there is none in our case) supple-
mented or superseded the statutory one. Granted, Plyler
contains language suggesting that the case would probably
have been decided the same way without benefit of the
decretal provision. Similar dicta can be found in other cases
as well, such as Cody v. Hillard, 304 F.3d 767, 773 (8th Cir.
2002); San Francisco NAACP v. San Francisco Unified School
District, 284 F.3d 1163, 1166 (9th Cir. 2002), and Jenkins v.
Missouri, 127 F.3d 709, 716-19 (8th Cir. 1997). But partly by
its approving reference (902 F.2d at 281) to our decision in
Ustrak, where, to repeat, the plaintiff had some success, and
partly by its observing that the plaintiffs had merely not
been “successful in detail,” id., the court in Plyler indicated
that it thought the plaintiffs’ efforts had contributed to
compliance with the decree, and thus had not been fruitless
after all. Indeed, the court noted that the defendant hadn’t
even appealed part of the district court’s order in favor of
the plaintiffs. Id. at 276, 279. This statement may have been
erroneous, see Plyler v. Evatt, 846 F.2d 208, 210, 215-16 (4th
Cir. 1988) (an earlier round, in which the court vacated the
district court’s order in its entirety), but it shows the court’s
thinking.
And likewise in Turner the court made clear its belief
that the postdecree efforts had been valuable in inducing
compliance with the decree, even though they, too, had
failed in detail. 785 F.2d at 1504; cf. Bond v. Stanton, 630 F.2d
1231, 1233-34 (7th Cir. 1980); Miller v. Carson, 628 F.2d 346,
6 Nos. 02-3981, 02-3982
347-49 (5th Cir. 1980). These cases can be thought of as ex-
tensions of the principle that a plaintiff is not to be denied
full attorneys’ fees merely because he lost some interim
rulings en route to ultimate success. Jaffee v. Redmond, 142
F.3d 409, 414 (7th Cir. 1998); Jenkins v. Missouri, supra, 127
F.3d at 714-16. Such setbacks are well-nigh inevitable, and a
lawyer who nevertheless was sedulous to avoid them might
lose a good case through an excess of caution. Likewise in
postdecree litigation there may be inevitable setbacks en
route to victory, partial or complete. But in the present case
there has for a decade now been nothing but loss—a million
dollars’ worth of legal services poured down the drain.
There was not even a disappointing partial success, as there
would have been if the City had moved to dissolve the
decree and the plaintiffs had fended off dissolution yet had
not averted a substantial modification.
In the second and more numerous class of cases, attor-
neys’ fees incurred in efforts to monitor compliance with the
consent decree are said or assumed to be compensable even
if no postjudgment order results from the efforts. Eirhart v.
Libbey-Owens-Ford Co., 996 F.2d 846, 850-51 (7th Cir. 1993);
San Francisco NAACP v. San Francisco Unified School District,
supra, 284 F.3d at 1166; Joseph A. v. New Mexico Dept. of
Human Services, 28 F.3d 1056, 1059-61 (10th Cir. 1994); Keith
v. Volpe, 833 F.2d 850, 855-57 (9th Cir. 1987); Garrity v.
Sununu, 752 F.2d 727, 738-39 (1st Cir. 1984); Northcross v.
Board of Education, 611 F.2d 624, 637 (6th Cir. 1979). These
cases are best explained on a deterrence rationale: careful
monitoring reduces the likelihood that the decree will be
violated. The rationale is attenuated in a case such as this in
which someone else—not the plaintiff—is the appointed
monitor. More fundamentally, the cases we have cited—all
of which except San Francisco NAACP precede Buckhannon
Board & Care Home, Inc. v. West Virginia Dept. of Health &
Human Resources, supra, and in San Francisco NAACP no fees
Nos. 02-3981, 02-3982 7
were in fact awarded—are inconsistent with the Supreme
Court’s rejection in Buckhannon of the “catalyst” theory of
fee-shifting. As may also be such cases as Plyler, Turner,
Bond, and Miller, insofar as they—though Plyler and Turner
only in dictum, for remember the contractual fee-shifting
provisions in those cases—reward lawyers for promoting
compliance with the original decree rather than for obtain-
ing supplementary court-ordered relief.
The catalyst idea was that if a lawyer’s effort produces a
good result albeit not an actual judgment or other judicial
relief, it should be compensable. The Court described it as
the idea that a fee-shifting statute “allows an award where
there is no judicially sanctioned change in the legal relation-
ship of the parties,” 532 U.S. at 605—and rejected it. Moni-
toring may reduce the incidence of violations of a decree,
but if it does not produce a judgment or order, then under
the rule of Buckhannon it is not compensable.
The plaintiffs are left to argue that the fact that the failed
proceedings were offshoots of a pending case rather than
entirely free-standing lawsuits should make a difference.
Some cases have suggested that if postjudgment proceed-
ings are “inextricably intertwined” with the original decree,
in the sense of involving the same facts and legal issues,
they can be considered part of the original case in which the
plaintiff prevailed. Cody v. Hillard, supra, 304 F.3d at 773;
Arvinger v. Mayor & City Council of Baltimore, 31 F.3d 196,
200-02 (4th Cir. 1994). That is a questionable extension of the
sound and settled principle that attorneys’ fees incurred in
interim defeats en route to a successful conclusion are com-
pensable because, as we have noted, such skirmishes are
indispensable inputs into a successful conclusion of litiga-
tion. Time, however, runs in only one direction. Interim
defeats can contribute to ultimate victory, but failed efforts
to follow up that victory contribute to nothing.
8 Nos. 02-3981, 02-3982
In any event, the postjudgment proceedings here,
coming as they did so many years after the consent decree
went into effect, are clearly separable from the proceeding
that led up to the entry of the decree. Just as a bankruptcy
proceeding provides a venue and procedural framework for
prosecuting discrete claims (“adversary proceedings”) by
and against the debtor—for example, a tort claim by the
debtor that were he not in bankruptcy would be prosecuted
as a civil suit in state court—so a consent decree will often,
and here does, provide a venue and procedural framework
for prosecuting discrete claims. For example, persons
complaining of violations of the Shakman decree (actually
decrees, Shakman v. Democratic Organization of Cook County,
481 F. Supp. 1315, 1356-59 (N.D. Ill. 1979), vacated under the
name Shakman v. Dunne, 829 F.2d 1387 (7th Cir. 1987); 569 F.
Supp. 177, 183-207 (N.D. Ill. 1983)), which limits patronage
practices in employment by the City of Chicago, litigate the
violations as contempts of court, see Smith v. City of Chicago,
769 F.2d 408, 411-13 (7th Cir. 1985), rather than having to
prosecute them as independent suits. That procedural short-
cut does not earn a legal fee paid by the City if the claim
fails. Ancillary or offshoot proceedings in class actions (such
as contempt proceedings under the Shakman decree), or in
bankruptcy, are treated by the law as if they were inde-
pendent, free-standing proceedings, see, e.g., In re James
Wilson Associates, 965 F.2d 160, 166-67 (7th Cir. 1992) (bank-
ruptcy), with the decisions ending the proceedings thus
being treated as appealable final decisions. That is one
reason why the fee awards that the district court ordered
are appealable now rather than only after the decree is dis-
solved, cf. Budinich v. Becton Dickinson & Co., 486 U.S. 196,
201-03 (1988), if it is ever dissolved—a matter to which we
return at the end of this opinion. Another reason for
allowing an immediate appeal is that a decree might never
be dissolved, so that to treat fee awards as interlocutory
Nos. 02-3981, 02-3982 9
might defer appeal to the end of time. Bogard v. Wright, 159
F.3d 1060, 1063 (7th Cir. 1998).
We do not think that our plaintiffs would argue that if a
member of the class went to a lawyer who does not rep-
resent the class, and that lawyer filed a motion for contempt
on behalf of his client and lost, the lawyer would be entitled
to a fee, on the ground that the class member was a prevail-
ing party by virtue of the consent decree. They would
attempt to distinguish the case on the ground that the
lawyers who negotiated the decree, or their successors (it
has been, after all, more than two decades since the decree
was entered), were “duty-bound” to enforce the decree—to
monitor it, to file contempt proceedings on the basis of in-
formation obtained through the monitoring or otherwise,
and to oppose any effort to lift or alter the decree. The
attempt would fail. The decree imposes no such duties; nor
does the law. The original decree contained provisions for
audits and other methods of assuring compliance with the
decree that were to be administered by the Chicago Police
Board, while the modified decree requires annual audits by
the Chicago Police Department and one audit to be per-
formed by a national independent public accounting firm
within five years. Neither the original nor the modified
decree imposes on these lawyers any duty of operating the
compliance machinery. They could have walked away from
the case as soon as the consent decree was approved con-
fident that a compliance machinery in which they had been
given no role had been established. They would not have
been letting down the class had they done so.
This brings out an important difference between this case
and Plyler and Turner. Consider why the decrees in those
cases but not in this one authorized the award of attorneys’
fees for postdecree litigation without requiring that the
plaintiffs prevail in that litigation. The answer is that they
10 Nos. 02-3981, 02-3982
must have been expected to be the enforcers of the decree.
This is explicit in Turner: “the consent judgment provided
that the representatives of the plaintiff class would establish
the PMC [Plaintiffs’ Monitoring Committee, the entity seek-
ing the award of fees] to, as its name suggests, monitor and
ensure the continuing enforcement of the consent judg-
ment.” 785 F.2d at 1500. The present decree contains no
contractual attorneys’ fees provision because, rather than
the lawyers for the class being the appointed enforcers of
compliance with the degree, a public body, the Chicago
Police Board, was given that task. We are mindful that some
cases have authorized compensation for piggyback monitor-
ing of the type involved in this case, e.g., Duran v.
Carruthers, 885 F.2d 1492, 1495-97 (10th Cir. 1989); Keith v.
Volpe, supra, 833 F.2d at 857-58, but they do not survive
Buckhannon.
We are not suggesting that the lawyers for the class had to
walk away from the decree once it was entered. But they
could not appropriate for themselves a guaranteed lifetime
income by bringing and losing a series of actions to enforce
the decree and charging the expense to the City and thus to
the taxpayers. The class-action device is not intended to be
a lawyers’ gravy train. The law does not reward lawyers for
losing cases, or reimburse them for a prefiling investigation
(which is the character of the plaintiffs’ monitoring of com-
pliance with the decree) that leads to the filing of a losing
suit. The plaintiffs sue and lose, the City defends and
wins—but, we are told, the City is to pay its own expenses
plus the plaintiffs’. We do not see the sense of that. The
plaintiffs argue that unless they are reimbursed when they
lose, their incentive to sue will be diminished because there
is always a danger of losing a suit. Yes, and if section 1988
said that losing plaintiffs were entitled to awards of attor-
neys’ fees, they would have a good argument.
Nos. 02-3981, 02-3982 11
Their strongest claim is to fees for defending the decree
against the modification sought by the City. It is strongest
because they were responding rather than initiating and be-
cause modification is perhaps not as readily conceptualized
as a separate suit adventitiously embedded in the underly-
ing class action as is a proceeding for contempt or what we
have characterized as a prefiling investigation. But we reject
the claim for three reasons. First, we have conceptualized
postdecree litigation, including collection litigation, broadly
as a discrete phase analogous to a free-standing suit.
Resolution Trust Corp. v. Ruggiero, 994 F.2d 1221, 1224-25 (7th
Cir. 1993); King v. Ionization International, Inc., 825 F.2d 1180,
1184-85 (7th Cir. 1987); see Bogard v. Wright, supra, 159 F.3d
at 1062-63; In re Joint Eastern & Southern Districts Asbestos
Litigation, 22 F.3d 755, 760-65 (7th Cir. 1994). This does not
mean that every procedural order that follows the entry of
a consent decree or other judgment requiring continuing
supervision is immediately appealable. Bogard v. Wright,
supra, 159 F.3d at 1062-63; compare SEC v. Suter, 832 F.2d
988, 990 (7th Cir. 1987). That would lead to an unmanage-
able proliferation of appeals. But orders modifying or
refusing to modify injunctions are appealable immediately,
28 U.S.C. § 1292(a)(1), and that principle supports treating
a proceeding to modify a consent decree as a discrete phase
of an otherwise open-ended proceeding.
Second, as we have noted already, the plaintiffs had no
duty—statutory, contractual, or ethical—to oppose modifi-
cation. Third, and further demonstrating the absence of
even an ethical duty to oppose their opposition, verged on
the unreasonable. The decree had been in force for 15 years
when the City asked that it be modified.
If not limited to reasonable and necessary implementa-
tions of federal law, remedies outlined in consent de-
crees involving state [or, we add, local] officeholders
12 Nos. 02-3981, 02-3982
may improperly deprive future officials of their desig-
nated legislative and executive powers. They may also
lead to federal court oversight of state programs for
long periods of time even absent an ongoing violation
of federal law. . . . Rule 60(b)(5) allows a party to move
for relief if “it is no longer equitable that the judgment
should have prospective application.”. . . In Rufo v.
Inmates of Suffolk County Jail, 502 U.S. 367 (1992), the
Court explored the application of the Rule to consent
decrees involving institutional reform. The Court noted
that district courts should apply a “flexible standard” to
the modification of consent decrees when a significant
change in facts or law warrants their amendment. Id., at
393.
Frew v. Hawkins, No. 02-628, 2004 WL 57266, at *7 (U.S. Jan.
14, 2004). In the present case, the circumstances out of which
the class action suit had arisen had changed dramatically
when modification was sought. The decree in its original
form had accomplished its purpose and had become
obsolete. There would have been no ignominy in the
plaintiffs’ acceding to the modification. They might have
breathed a sigh of relief, since if the City had asked that the
decree be dissolved, it probably would have been. The
plaintiffs’ opposition to modification gained the class
nothing. Section 1988 does not reward failure. The contrast
with Plyler is sharp, where the court described “the position
taken” by the plaintiffs as “essential to the preservation of
the integrity of the consent decree as a whole.” 902 F.2d at
281.
Another point and we are done. The fees awarded in this
case are for work dating back to 1994, a dozen years after
the decree had been entered. This suggests the unwisdom
of “conduct,” or “regulatory,” decrees (that is, equitable
decrees that do not merely tell the defendant not to do or
to stop doing something, but instead regulate his behavior
Nos. 02-3981, 02-3982 13
and so impose a continuing duty of judicial supervision)
that contain no sunset provision. Beginning in the Clinton
Administration and continuing in the present
Administration, the Justice Department and the Federal
Trade Commission have both decided to include sunset
provisions in their regulatory antitrust decrees. U.S. Dept.
of Justice, Antitrust Division, Antitrust Division Manual ch.
4, p. 55 (3d ed. 1998); Federal Trade Commission, Final
Rule, “Duration of Existing Competition and Consumer
Protection Orders,” 60 Fed. Reg. 58514, 58515 (Nov. 28,
1995). The absence of such a provision from the decree in-
volved in the present case is, in retrospect, a considerable
defect. It has meant that the plaintiffs have been encouraged
to pursue enforcement efforts bound to fail because the de-
cree, a response to the turmoil of the Vietnam War era now
almost forgotten, is merely a relic.
The modified decree has a quasi-sunset provision. It
provides that upon the completion of the independent audit
that the modified decree orders but in any event no later
than 2006, the district judge is to consider whether to
dissolve the decree. We urge expedited completion of the
audit, to clear the way to a prompt consideration of whether
the decree has indeed outlived its usefulness, as in People
Who Care v. Rockford Board of Education, 171 F.3d 1083, 1090-
91 (7th Cir. 1999); 246 F.3d 1073 (7th Cir. 2001). As the
Supreme Court reminded us just weeks ago, “The federal
court must exercise its equitable powers to ensure that when
the objects of the decree have been attained, responsibility
for discharging the State’s obligations is returned promptly
to the State and its officials.” Frew v. Hawkins, supra, at *7.
The fee award is reversed. The plaintiffs are entitled to no
fees for the legal services rendered during the period in
issue, and a fortiori the Alliance is not entitled to the addi-
tional half million dollars sought in its cross-appeal.
REVERSED.
14 Nos. 02-3981, 02-3982
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-28-04