Robinson, Archie v. City of Harvey ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 04-3993 & 05-1192
ARCHIE ROBINSON,
Plaintiff-Appellee,
v.
CITY OF HARVEY,
Defendant-Appellant.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 3696—Paul E. Plunkett, Judge.
____________
ARGUED DECEMBER 5, 2006—DECIDED JUNE 12, 2007
____________
Before FLAUM, WOOD, and EVANS, Circuit Judges.
EVANS, Circuit Judge. This is quite a case. Soon after
19-year-old Archie Robinson was shot by a City of Harvey
police officer who said he acted in self-defense because
Robinson was pointing a gun at him, rumors began to
circulate that the officer’s story was a lie. The truth,
according to the rumors, was that Robinson was unarmed
and that a gun, alleged to be his and found at the scene,
was planted by police to cover up an unjustified shooting.
Whether the rumors were true or not was the subject of
two civil jury trials (and, inferentially at least, one crimi-
nal trial), with the bottom line being that Robinson was
framed. So what we have here is a rather explosive case.
But we must put its interesting questions off to the side
2 Nos. 04-3993 & 05-1192
(and perhaps they will stay there) for the time being,
because the primary issue we must first address is a
yawner: appellate jurisdiction. Nevertheless, to put the
dispute in context, we briefly recount a few of the facts
(there are many more facts about which we will say
nothing) that emerged from the lengthy litigation that
grew out of Robinson’s shooting.
Juries and judges often hear two sides of the same story.
And so it is here. We start with the version advanced by
the City of Harvey.
Manuel Escalante, a City of Harvey police officer, was
working with a “gang and narcotics unit” on September 3,
1997. Two other officers, White and Williams, were with
him. After arriving near the intersection of 147th and Vail
Streets in Harvey, the officers separated, and a moment or
two later Escalante saw two men (Robinson and Anthony
Reynolds) running through a pathway between two
buildings in the area of a six-foot-high fence. Escalante
says he engaged Reynolds in a scuffle and that Robinson,
who had been ordered to stop running, failed to do so and
instead joined the scuffle by “jumping on top” of him.
Robinson, after being pushed away, started to scale the
fence and, while doing so, pulled out a handgun and
pointed it at Escalante’s face. Escalante ordered Robinson
to “drop the gun” but he didn’t comply. Escalante then
fired one shot, in self-defense, which struck Robinson in
the back buttocks area. Order was restored a short time
after Robinson was hit.
According to Robinson, Escalante’s claim is a pack of
lies. Robinson says he and Reynolds were talking when
they saw someone running towards them. They tried to
flee. When they got to the fence, with Escalante in pursuit,
Reynolds went over and Robinson got near the top. At that
moment, Escalante shot him. Robinson said he didn’t have
a gun, never had any physical contact with Escalante, and
no warning preceded the shot.
Nos. 04-3993 & 05-1192 3
So, who is to be believed? Major cracks in Escalante’s
version of the event soon appeared. Williams, one of the
officers with Escalante, told another officer (Jelenewski)
that the Robinson shooting was “bogus.” He said he never
saw Robinson with a gun, saw none on the ground soon
after the shooting, and didn’t hear Escalante tell Robinson
to “drop the gun.”
And then there’s the gun. The night before the shooting,
Escalante, Williams, Jelenewski, and another officer,
Edison Torres, participated in a raid in which a police
report indicated that five guns were seized, though only
four were accounted for at the police station and only three
were eventually logged into evidence. What happened to
the guns that were not accounted for? Williams said that
he saw Torres approach Escalante inside the secured area
of the Robinson shooting and that Torres later showed him
that there was a gun on the ground. Torres denied showing
Williams the gun, though the City’s answers to interroga-
tories identify him as the person who found it. Finally, the
gun recovered at the scene was a cheap model with a
broken grip handle. It carried no usable fingerprints. It
was the perfect candidate, according to Harvey’s own
police chief (Robinson says this occurred in “a moment of
uncommon candor”) to be used as a “drop gun” or a “throw-
away gun.”
Robinson was eventually charged with carrying a gun
without the requisite paperwork. The prosecution intro-
duced a gun into evidence but offered no witnesses to
testify about its recovery, and Robinson was acquitted
after a bench trial. He then sued Escalante and the City of
Harvey, invoking Illinois common law and 42 U.S.C.
§ 1983 to allege malicious prosecution by Escalante and a
violation of his constitutional right to not be the victim of
excessive force.
A jury found for Robinson on the malicious prosecution
claim but rejected his excessive force claim. Robinson
4 Nos. 04-3993 & 05-1192
moved for a new trial, pointing out that the jury’s mali-
cious prosecution verdict required concluding that there
was no probable cause to believe he had a gun, making it
impossible to also find that Escalante’s use of deadly force
was reasonable under the circumstances. The district court
agreed that the verdicts were fatally inconsistent, and on
February 22, 2002, a new trial was ordered. The new jury
found for Robinson on both counts, and he was awarded
$275,000 in compensatory and punitive damages. He later
petitioned for attorneys fees under 42 U.S.C. § 1988. When
a new district court judge assigned to the case awarded
approximately $375,000 in fees, Robinson moved for
reconsideration, and on October 20, 2004, the judge
reversed his decision and awarded some $507,000. Harvey
now appeals both the district court’s grant of a new trial
and the fee award.
It goes without saying that a timely notice of appeal is
essential to appellate jurisdiction, Barrow v. Falck, 977
F.2d 1100, 1103 (7th Cir. 1992). A party is generally
required to file a notice of appeal with the district court
within 30 days after the order appealed from is entered,
see Fed. R. App. P. 4(a)(1)(A), although that time may be
extended to a limited degree if a party moves for more time
within 30 days after the original time period has ex-
pired—a situation not presented here. See Fed. R. App. P.
4(a)(5). Harvey filed its appeal on November 17, 2004
(Escalante has settled his part of the case), clearly giving
us jurisdiction to consider the fee award. But as we shall
see, we do not have jurisdiction to review the February 22,
2002, trial order.
Because the February 22 order granting the new trial
was not appealable as a final order within the meaning of
28 U.S.C. § 1291, Juneau Square Corp. v. First Wis. Nat’l
Bank of Milwaukee, 624 F.2d 798, 806 (7th Cir. 1980),
Harvey’s appeal on that issue is really an appeal of the
July 30, 2002, judgment entered following the second trial.
Nos. 04-3993 & 05-1192 5
Absent a valid extension, Harvey therefore had until
August 29, 2002, to file a timely notice of appeal—a
deadline two years before the November 2004 filing we
now consider.
The City maintains that its time for appeal was validly
extended under Federal Rule of Appellate Procedure
(FRAP Rule) 4(a)(4)(A), which enumerates six categories of
post-trial motions that when filed extend the appeal
deadline until their resolution. Harvey first directs us to
Rule 4(a)(4)(A)(iii), which describes what the Second Cir-
cuit has called a “Rule 58/54/59 order,” Mendes Junior Int’l
Co. v. Banco Do Brasil, 215 F.3d 306, 312 (2d Cir. 2000), a
term we will use here. As explained by Rule 58(c)(2) of the
Federal Rules of Civil Procedure (the Civil Rules):
When a timely motion for attorney fees is made
under Rule 54(d)(2), the court may act before a
notice of appeal has been filed and has become
effective to order that the motion have the same
effect under Federal Rule of Appellate Procedure
4(a)(4) as a timely motion under Rule 59.
The City argues that a December 17, 2002, minute order
granting Harvey’s motion to extend the time for appeal
was a proper Rule 58/54/59 order that, in accordance with
FRAP Rule 4(a)(4), delayed the running of the time for
appeal of the new trial order until Robinson’s fee motion
was finally resolved on October 20, 2004.
But there are several flaws in this argument. First, the
plain language of Rule 58(c)(2) only authorizes the court to
make a Rule 58/54/59 order “[w]hen a timely motion for
attorney fees is made.” At the time of the December 17
order, Robinson had not yet made his fee motion (he did
not do so until August 14, 2003), meaning that the district
court lacked the authority to enter the order (insofar as it
dealt with extending the time to appeal) in the first place.
Mendes, 215 F.3d at 313.
6 Nos. 04-3993 & 05-1192
Second, the December 17 Rule 58/54/59 order was
entered long after the August 29 deadline. Harvey sug-
gests that this is not a problem because the district court’s
Local Rule 54.3(b) extends to 90 days the Rule 54(d)(2)(B)
default rule providing a 14-day time period after judg-
ment is entered to file a fee petition. But that argument
ignores both that Local Rule 54.3(c) expressly provides
that “[t]he filing of a fee motion shall not stop the running
of the time for appeal of any judgment on which the motion
is founded,” and that Civil Rule 58(c)(1) makes clear that
the time for appeal cannot be extended in anticipation of
a fee petition. More generally, Harvey’s theory neglects
the well-established principle that “[t]he power of the
federal courts to extend the time limits on the invocation
of appellate jurisdiction is severely circumscribed.”
Mendes, 215 F.3d at 312. In the end, the City can prevail
only if we read Rule 58(c)(2) to permit a district court
judge to enter a Rule 58/54/59 order anytime after a fee
petition has been filed and is still pending, regardless of
whether the 30-day time period to appeal the judgment
has already passed. In other words, we would have to
conclude that the district court has the power to revive
the already-expired time for appeal—a position rejected
by the Second Circuit in Mendes and one we likewise
decline to take.
As Mendes noted, the language in Rule 58(c)(2) that
“the court may act before a notice of appeal has been
filed and has become effective,” strongly suggests that
the rule’s drafters intended a court’s authority to enter
a Rule 58/54/59 order to depend on the possibility that
a notice of appeal may yet become effective—something
that is impossible once the time for appeal prescribed
by FRAP Rule 4(a)(1)(A) has expired. 215 F.3d at 313.
Furthermore, “if . . . the drafters meant that a Rule
58/54/59 order itself would have the effect of reviving
Nos. 04-3993 & 05-1192 7
an already expired right to appeal, we surely would
have expected Rule 58 or FRAP Rule 4(a) to state that
effect with some clarity1.” Id.It is worth mentioning, as the Mendes court did, that the
provision in Rule 58 granting the district court the author-
ity to enter a Rule 58/54/59 was added by 1993 amend-
ments to the rule and motivated by the desire to give
courts the option to delay a merits appeal until fee issues
were resolved where it was efficient to do so. Fed. R. Civ.
P. 58 advisory committee’s note (1993); see also Mendes,
215 F.3d at 313-14. Although the courts of the Northern
District of Illinois still have this option (because they can
always set their own fee petition filing schedule), the local
rules, as they are authorized to do, see Fed. R. Civ. P.
54(d)(2), have selected a different default position that
gives parties 90 days to file a fee petition, see N.D. Ill.
Local R. 54.3(b), presumably to encourage parties to
resolve fee disputes outside of the courtroom. By also
expressly divorcing the timetable for filing fee petitions
from the time to appeal, id. 54.3(c), the Northern District
has concluded that it is worth encouraging out-of-court
agreement over fees even if a litigating party may be
required (where there ultimately is no settlement) to file
separate notices of appeal on the merits and on fees.
Considering that the courts of appeals can choose (as we
often do) to consolidate the two, we see no reason to
1
We note also that FRAP Rule 4(a)(6) already comprehends
revival of the time for appeal and makes no mention of using a
Rule 58/54/59 order to do so. The rule allows a district court to
reopen the time for appeal only for a period of no more than 14
days and only in cases where no party is prejudiced and the
moving party (1) did not receive proper notice of the entry of
judgment and (2) filed a motion no later than 180 days after
judgment is entered.
8 Nos. 04-3993 & 05-1192
second-guess the Northern District’s choice and are
therefore unpersuaded—particularly in light of the long-
recognized public interest in the finality of litigation—that
we should read the rules to authorize a district court judge
to revive the time for appeal through a Rule 58/54/59
order.
The City also tries another tack, arguing that Escalante
made a timely Rule 59 motion that extended his time to
appeal under FRAP Rule 4(a)(4)(A)(iv). If that motion was
timely, Harvey contends, its time for appeal was delayed
until the district court resolved that motion on July 18,
2003, at which time the City had already made its motion
for a Rule 58/54/59 order. If this scenario is embraced, that
order was appropriate notwithstanding our endorsement
of Mendes, because under FRAP Rule 4(a)(4) these kinds
of post-judgment motions are strung together to extend the
appeal time until all are resolved.
But this argument also fails, because Escalante never
made a timely Rule 59 motion—the conclusion the district
court reached in its July 18 memorandum opinion and
order. Rule 59 motions must be made within 10 days of the
entry of judgment, see Fed. R. Civ. P. 59(b)—a time limit
that cannot be extended. See Fed. R. Civ. P. 6(b). Escalante
did not file his written Rule 59 motion until August 21,
2002, well after the 10-day deadline had expired. The City
argues that Escalante made a timely oral motion to amend
the judgment when he informed the court on multiple
occasions that he would be requesting a reduction in the
damages award, but even if a Rule 59 motion can be made
orally (a question we need not answer today), the district
court’s minute order of July 24 makes clear that no motion
was made: it sets a future hearing date for Escalante to
demonstrate his financial condition “in anticipation of a
motion for remittitur of punitive damages” (emphasis
added). Escalante made no motion until August 21, at
Nos. 04-3993 & 05-1192 9
which point it was too late; there could be no valid exten-
sion of the deadline to appeal.
Harvey, as a last gasp, turns finally to the doctrine of
“unique circumstances,” which applies “where a party has
performed an act which, if properly done, would postpone
the deadline for filing his appeal and has received specific
assurance by a judicial officer that this act has been
properly done.” Osterneck v. Ernst & Whinney, 489 U.S.
169, 179 (1989) (emphasis added). Harvey argues that an
exchange between the district court judge and defense
counsel on the day judgment was entered after the second
trial provided the requisite “specific assurance” that the
time to appeal could be extended:
MS. BUDZINSKI [Escalante’s counsel]: Your Honor,
I’m going to ask if we can have additional time to file
our post-trial motions. We have ten days under the
rules, and I am out of the office Friday, the 2nd, and
then the next the 7, 8th, and 9th on vacation that I
have had planned for several months. And I don’t
know what Mr. DiCianni’s schedule is. But I don’t
know if plaintiff would object.
THE COURT: To deferring?
MS. BUDZINSKI: Pardon?
THE COURT: What—
MS. BUDZINSKI: If we could have additional time
other than the ten days. If it is agreed by the parties
or ordered by the Court, we still preserve our issues on
appeal.
THE COURT: I can extended the time you’re telling
me. Okay.
MS. BUDZINSKI: Even to August 16th. I don’t
know if that would be—give us an additional week,
August 16th or maybe August 21st, your Honor.
10 Nos. 04-3993 & 05-1192
THE COURT: All right. Let’s say August 21 to file
post-trial motions.
MR. TOOTOOIAN [City of Harvey’s counsel]: But
the date of July 30th remains as the judgment on the
verdict date?
THE COURT: Yes.
MS. BUDZINSKI: But we were still protected for
appeal with your order—
MR. TOOTOOIAN: We are getting an extension
now—
MS. BUDZINSKI: To file post-trial motion, and that
protects us for appeal.
THE COURT: That’s correct.
MS. BUDZINSKI: Okay.
“We have taken a narrow view of the Osterneck rule, lest
it become an exception that swallows the rules concerning
time for appeal.” Properties Unlimited, Inc. Realtors v.
Cendant Mobility Servs., 384 F.3d 917, 921 (7th Cir. 2004);
see also Talano v. Northwestern Med. Faculty Found., 273
F.3d 757, 761 (7th Cir. 2001); Hope v. United States, 43
F.3d 1140, 1143 (7th Cir. 1994); Green v. Bisby, 869 F.2d
1070, 1072 (7th Cir. 1989). Indeed, the doctrine’s continued
validity has been seriously questioned both in this court,
see Varhol v. Nat’l R.R. Passenger Corp., 909 F.2d 1557,
1573 (7th Cir. 1990) (en banc) (Manion, J., joined by
Cummings, Posner, Coffey, and Easterbrook, JJ., and
Eschbach, Senior J., concurring), and in the Supreme
Court, see Houston v. Lack, 487 U.S. 266, 282 (1988),
(Scalia, J., joined by Rehnquist, C.J., and O’Connor and
Kennedy, JJ., dissenting), prompting the observation that
“[t]he ‘unique circumstances’ doctrine is, at best, on life
support.” 16A Charles Alan Wright, Arthur R. Miller, &
Nos. 04-3993 & 05-1192 11
Edward H. Cooper, Federal Practice & Procedure § 3950.3
(3d ed. supp. 2006).
As we explained in Properties Unlimited, the unique
circumstances exception is available “only when there is a
genuine ambiguity in the rules to begin with, and the court
resolves that ambiguity in the direction of permitting
additional time to appeal.” 384 F.3d at 922. Applying the
doctrine more broadly would be to hand over to the district
court the discretionary authority to disregard the rules
whenever it was convenient by affirmatively declaring the
deadline extended and assuring the parties that they could
proceed according to a new timetable. Such an interpreta-
tion would strip the rules of their mandatory quality.
There is nothing ambiguous in the language of the rules
at issue here. The plain language of FRAP Rule 4 clearly
delimits the only situations in which the time to appeal
can be validly extended, and Civil Rule 6(b) expressly
precludes judges from extending the time to make a Rule
59 motion. We therefore decline to apply the unique
circumstances exception in this case.
We are thus left only to review the merits of the district
court’s fee award. Under 42 U.S.C. § 1988, the district
court may “in its discretion” award attorneys fees to the
prevailing party in a civil rights action. The amount of the
award is determined by calculating a lodestar after looking
to “the number of hours reasonably expended on the
litigation multiplied by a reasonable hourly rate.” Hensley
v. Eckerhart, 461 U.S. 424, 433 (1983). The lodestar
amount may then be revised in either direction upon
consideration of a host of additional factors. Id. at 430 n.3.
Robinson originally sought $671,677.50 for 2372.3 hours
of work performed by seven attorneys. Before his fee
motion was considered, however, the original district court
judge (the Honorable Joan Humphrey Lefkow) recused
herself and the case was transferred to District Judge Paul
12 Nos. 04-3993 & 05-1192
E. Plunkett. In determining the lodestar, Judge Plunkett
concluded that Robinson’s requested figure was too high,
due in large part to the counting of certain time entries
that either indicated unreasonably duplicative work
by Robinson’s attorneys or were simply too vague to be
relied on. Judge Plunkett then settled on a lodestar of
$562,757.75. The judge then revised the lodestar amount
downward by one-third, explaining that the questions
presented by the case were not particularly difficult.
Robinson was awarded $375,171.84 plus a small sum for
expenses.
Robinson promptly moved for reconsideration of the
lodestar reduction and argued that his original fee petition
had taken into account Judge Lefkow’s (the trial judge)
knowledge of the complexities and pretrial preparation of
the case, such that Judge Plunkett may have inevitably
misunderstood critical facts when making his ruling. On
reconsideration, Judge Plunkett granted Robinson’s motion
and agreed that because he had not witnessed the events
of the trial he did not properly appreciate the complexity
of the case and the need for extensive trial preparation by
Robinson’s counsel. After also correcting for a mathemati-
cal error in his earlier ruling, he awarded Robinson the full
lodestar amount of $507,183.94 in fees and expenses.
The City challenges this revised decision and argues that
the judge improperly evaluated the reasonableness of the
lodestar amount by (1) considering factors other than the
degree of success obtained by Robinson, and (2) failing to
provide a basis for overturning its previous finding that
Robinson had achieved only modest success.
An award of the originally calculated lodestar amount is
presumptively reasonable, Blanchard v. Bergeron, 489 U.S.
87, 95 (1989), and it is the City’s burden to convince us
that a lower rate is required. People Who Care v. Rockford
Bd. of Ed., 90 F.3d 1307, 1313 (7th Cir. 1996). That is,
Nos. 04-3993 & 05-1192 13
because fee award determinations are inherently fact-
intensive, we review them under the highly deferential
“abuse of discretion” standard. As we explained in Herbst
v. Ryan,
The district court is accorded significant deference
in fee matters because (1) it possesses “superior
understanding of the litigation and [there exists a]
desirability of avoiding frequent appellate review
of what essentially are factual matters”; (2) the
need for uniformity in attorneys’ fees awards is not
great enough to warrant appellate review of minu-
tia; and (3) the desirability of avoiding “a second
major litigation” strictly over attorneys’ fees is
high.
90 F.3d 1300, 1304 (7th Cir. 1996) (alteration in original)
(citations omitted).
We have no trouble concluding that the award of the full
lodestar amount was not clearly erroneous. First, the
City’s argument regarding the court’s reliance on improper
factors fails to appreciate that it was primarily these
factors that the court used to justify the original downward
revision of the lodestar—the decision they now seek to
reinstate. In other words, if the City is right about the
propriety of the district court’s analysis, it is the down-
ward revision and not the grant of the full lodestar that
should concern us.
Moreover, we do not agree that the degree of Robinson’s
success in the litigation required the district court judge to
lower the fee award. After the second trial, judgment was
entered in favor of Robinson on both counts against both
defendants, and he was awarded $25,000 in compensatory
damages and $250,000 in punitive damages. The City
argues that this “minimal” recovery did not constitute
success warranting an award of the full lodestar amount,
especially considering that Robinson asked for more. But
14 Nos. 04-3993 & 05-1192
$275,000 is hardly “minimal,” and in any event the
vindication of Robinson’s constitutional rights “cannot be
valued solely in monetary terms.” City of Riverside v.
Rivera, 477 U.S. 561, 574-77 (1986). He effectively per-
suaded a jury that a significant number of City of Harvey
officials conspired to plant a gun at the crime scene—a
victory that serves the public interest by exposing to light
disturbing police malfeasance and grave municipal institu-
tional failures, and one that will presumably help to deter
future constitutional violations by the City’s officers. These
achievements are anything but minimal.
The appeal of the district court’s July 30, 2002, judgment
is DISMISSED, and the October 20, 2004, order awarding
attorneys fees is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-12-07