Gautreaux, Dorothy v. Chicago Housing ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3578
DOROTHY GAUTREAUX, et al.,
Plaintiffs-Appellees,
v.
CHICAGO HOUSING AUTHORITY and TERRY PETERSON,
Defendants-Appellants,
v.
DANIEL E. LEVIN and THE HABITAT COMPANY LLC,
Receivers-Appellees,
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 66 C 1459—Marvin E. Aspen, Judge.
____________
ARGUED SEPTEMBER13, 2006—DECIDED JUNE 26, 2007
____________
Before CUDAHY, WOOD, and WILLIAMS, Circuit Judges.
WOOD, Circuit Judge. This appeal presents the latest
phase of the long-running litigation over racial discrimina-
tion in public housing in Chicago that bears Dorothy
Gautreaux’s name. See Gautreaux v. Chicago Housing
Auth. (CHA), 296 F. Supp. 907 (N.D. Ill. 1969) (Gautreaux
I) (finding the CHA liable for racial discrimination in site-
selection policy and tenant assignment); Gautreaux v.
CHA, 304 F. Supp. 736 (N.D. Ill. 1969) (Gautreaux II)
2 No. 05-3578
(entering remedial order). It concerns the district court’s
decision to grant attorneys’ fees to the plaintiffs’ attorneys
for work they did between August 1, 2001, and July 31,
2003. The CHA, which is responsible for the fees, argues
that this court should reverse that order. It starts from
the premise that the proceedings before the district court
ought to be treated as free-standing litigation. When seen
in that light, the CHA continues, the proceedings did not
result in the kind of victory for plaintiffs that would
make them “prevailing parties” entitled to fees. In the
alternative, the CHA urges us to find that even if plain-
tiffs are entitled to some fees, the district court abused its
discretion in the award it granted. We conclude that even
if the link between these proceedings and earlier parts of
the case is broken, the plaintiffs nonetheless prevailed,
and the district court did not abuse its discretion with
this fee award. We therefore affirm.
I
For present purposes, all that is necessary is a sum-
mary of the history of the case. More than four decades
ago, Dorothy Gautreaux and other African-American
tenants who lived in public housing projects, along with
applicants for public housing, sued the CHA, claiming
that its policies with respect to the selection of sites for
public housing and for assignment of tenants were racially
discriminatory. The plaintiffs prevailed, see Gautreaux I,
supra, and the district court entered a remedial decree
that was designed to ban racially discriminatory site
selection and tenant assignment policies and to undo the
harm that had already occurred. See Gautreaux II, supra.
Central to the remedial decree was the requirement that
for every unit built in an area where the population was
more than 30% non-white (“Limited Areas”), the CHA had
to construct three housing units in an area where the
No. 05-3578 3
population was less than 30% non-white (“General Area”).
See Gautreaux II, 304 F. Supp. at 737-38. The ratio was
later modified to one-to-one. See Gautreaux v. CHA, 178
F.3d 951, 953 (7th Cir. 1999). The Gautreaux II remedial
order also limited new construction of public apartments
that had more than three floors and required changes to
tenant assignment practices. Gautreaux II, 304 F. Supp.
at 838-40. The order did not, however, require the con-
struction of any new housing.
The CHA reacted to Gautreaux II by instituting a virtual
moratorium on the construction of new housing that
lasted 18 years. At the plaintiffs’ behest, in 1987 the
district court appointed Daniel Levin and the Habitat
Company as a receiver for the development of all new non-
elderly housing for the CHA. See Gautreaux v. Pierce,
Order of Aug. 14, 1987. This indeed prompted some
change: the receiver built a number of small-scale public
housing units, which were scattered throughout the
General Area. In the 1990s, in part because of the avail-
ability of federal funds through the HOPE VI program (an
acronym for “Homeownership and Opportunity for People
Everywhere”), see 42 U.S.C. § 1437l, repealed by Pub. L.
105-276, Title V, § 522(a), Oct. 21, 1998, 112 Stat. 2564,
the CHA developed plans to overhaul its public housing
stock.
This culminated in 2000 with the CHA’s announce-
ment of the Plan for Transformation (the Plan), which the
CHA optimistically describes as a “blueprint for positive
change.” The Plan outlines how the CHA proposes to
replace all of Chicago’s high-rise public housing projects
with lower density mixed-income developments. See
http://www.thecha.org/transformplan/plan_summary.html
(last visited June 7, 2007). As CHA’s Executive Director,
Terry Peterson, explains, the “centerpiece” of the Plan is
“the creation of new, low-density, mixed-income communi-
ties on the sites and in the neighborhoods where [CHA]
4 No. 05-3578
ha[s] demolished the old high-rises. . . . [These develop-
ments] will allow public housing families to live in the
same kind of housing and the same kind of neighborhoods
as other Chicagoans.”
In deciding where to locate new construction that will
benefit from HOPE VI funds and be subject to the Plan,
the CHA has used the locations of the old high-rise
projects almost exclusively. These were the same locations
that were branded as racially isolated in Gautreaux I.
They fell within the Limited Areas, in which new construc-
tion was restricted by Gautreaux II. See Gautreaux v.
CHA, 178 F.3d at 953-55. In addition, some of the develop-
ments contemplated by the plan are mid-rise buildings
in which public housing units are located above the third
floor. To avoid the Gautreaux II restrictions when spending
federal dollars, the CHA asked the district court in 1998
“to ‘clarify’ the judgment order and read it as not govern-
ing the use of HOPE VI funds.” The court declined to do so;
instead, it concluded that “any construction of public
housing in Cook County must conform to the judgment
order’s locational requirements.” Gautreaux v. CHA, 4
F. Supp. 2d 757, 760 (N.D. Ill. 1998). Other construction
under the Plan similarly has continued to operate within
the restrictions of Gautreaux II’s remedial order.
The result of the continued application of the remedial
order to this new construction was, as Terry Peterson
attested, that “[t]he Gautreaux case presented a major
obstacle to the Plan for Transformation. . . . [U]nless the
1969 judgment order was modified, [the CHA] could not
proceed with the Plan.” What the CHA has had to do, in
essence, is to negotiate new building plans with plaintiffs,
whenever the Plan would require something inconsistent
with Gautreaux II. The plaintiffs have been cooperative.
Beginning with the redevelopment of the Henry Horner
housing project on the City’s near west side in 1995, the
No. 05-3578 5
plaintiffs repeatedly have joined the CHA in requests for
waivers from the district court of various restrictions in
its remedial decree, so that construction of replacement
public housing units can go forward.
In these joint motions, the Gautreaux plaintiffs have
never conceded that the limits in the decree are no longer
relevant. Rather, they have taken a case-by-case ap-
proach to waiver requests. For example, in proposing the
waiver of Gautreaux II’s conditions for the Horner redevel-
opment, plaintiffs asked the court to relax the site re-
strictions because they believed “that a proposed mixed-
income redevelopment on and around the . . . site offered
the prospect of better housing conditions for plaintiff
families in the near term as well as the possibility of racial
integration in the future.” After the Horner redevelop-
ment, plaintiffs have continued to join the CHA in asking
the district court to waive the remedial conditions, but
only for redevelopment projects that present the right
conditions and only with particular restrictions negoti-
ated by the parties.
The agreed order arrived at by the parties to allow the
Horner revitalization to proceed in 1996 provided the
model for much of what has occurred over the last decade,
including the August 1, 2001, to July 31, 2003, period in
which the attorneys’ fees at issue were accumulated.
During those two years, the district court entered five
orders, each of which was agreed to by the parties. The
first four were, according to Peterson, “examples of the
kind of orders that CHA has sought from the Gautreaux
plaintiffs so that [it] could proceed with the Plan.” An
order entered on September 7, 2001, waived the restric-
tions on units above the third story of any structure in
four mid-rise buildings and fourteen walk-ups that were
part of the redevelopment of the Cabrini Extension North
housing project. An August 29, 2002, order modified
Gautreaux II’s directives with respect to the Tenant
6 No. 05-3578
Assignment plan, giving priority for housing in scattered-
site units to individuals and families displaced from their
public housing units by the Plan; those units formerly
had been earmarked for CHA transfer and waiting-list
families. The September 11, 2002, order allowed the
building of new mixed-income housing on the sites of
the former Ida B. Wells, Darrow, and Madden Park
projects in the North Kenwood-Oakland neighborhood. The
December 12, 2002, order allowed the expansion of the
Horner revitalization area and the construction of an
additional 271 units of housing. It also modified the
height restriction and released Gautreaux funds to be
used in the construction. Finally, the order of March 18,
2003, revised the official list of Cook County Limited Area
Census Tracts. See Gautreaux II, 304 F. Supp. at 742.
Over the years, the Gautreaux plaintiffs’ attorneys have
requested attorneys’ fees on a number of occasions for
their ongoing work on the case. Since the 1969 judgment,
the court has awarded fees on four occasions: (1) for the
period from 1965 to 1980, it awarded $375,375 for 3,003
hours of work; (2) for the period from 1984 through 1996,
it awarded $1.15 million; (3) for the period from October
16, 1996, to September 24, 1999, it awarded $991,329; and
(4) for the period between September 25, 1999, and July
31, 2001, plaintiffs’ attorneys received $844,815.38.
The present fee petition requested compensation for
work done between August 1, 2001, and July 31, 2003. The
district court concluded that the attorneys were entitled
to $724,732 in fees and $3,706 in related expenses. In
making this award, the district court reasoned that
[t]he post-decree proceedings and related work for
which fees are presently sought are not “clearly separa-
ble” from the original judgment order. . . . [T]his case
involves post-judgment work and proceedings that are
all part of one active equitable case, in which compli-
No. 05-3578 7
ance has always been at issue, and modifications and
clarifications of the original judgment order must
continuously be made to account for changing condi-
tions and circumstances.
In addressing the reasonableness of the fees, the court
found that the fees requested were “comparable to the two
prior agreed orders involving Plaintiffs’ fees.” It also
found that the plaintiffs’ attorneys had appropriately
eliminated certain duplicative expenses and had shown
that the tasks they performed were within the scope of
the consent decree and consistent with the earlier fee
orders. Finally, the court was satisfied that the proposed
market rates were reasonable. As a result, it granted
the requested fees and costs.
II
We begin by noting that, although this fee order may
appear to be “non-final,” since it is merely one in a line of
similar such orders and nothing in the present record
purports to be a final termination of the litigation, appel-
late jurisdiction is secure. It qualifies as a collateral order
that is final for purposes of 28 U.S.C. § 1291, because it
finally determines the fee question for the period at issue.
See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541,
546 (1949); see also Gautreaux v. CHA, 690 F.2d 601 (7th
Cir. 1982). Our observation in Alliance to End Repression
v. Chicago, 356 F.3d 767 (7th Cir. 2004), is equally apt
here: “Another reason for allowing an immediate appeal
is that a decree might never be dissolved, so that to treat
fee awards as interlocutory might defer appeal to the
end of time.” Id. at 771. Nothing in Sole v. Wyner, ___
U.S. ___, 127 S.Ct. 2188 (2007), casts doubt on these
rules. Sole dealt only with the question whether a party
who had won a preliminary injunction but who had
ultimately lost on the merits could be a “prevailing party”
8 No. 05-3578
for purposes of fees. The Court concluded that it could
not, noting at the end of its opinion that it was expressing
no view on the question whether, “in the absence of a
final decision on the merits of a claim for permanent
injunctive relief,” fees might sometimes be permissible.
Here, of course, the Gautreaux plaintiffs did win perma-
nent injunctive relief, albeit relief that has been modified
from time to time, and the court’s order finally resolved
the fee question for the defined period. We thus proceed
to the merits of the appeal.
In general, we review a district court’s decision to award
attorneys’ fees for abuse of discretion. King v. Ill. State Bd.
of Elections, 410 F.3d 404, 411 (7th Cir. 2005). As the
Supreme Court pointed out in Cooter & Gell v. Hartmarx
Corp., 496 U.S. 384 (1990), however, “[a] district court
would necessarily abuse its discretion if it based its ruling
on an erroneous view of the law or on a clearly erroneous
assessment of the evidence.” Id. at 405. Our review of the
underlying legal issues is de novo. See Dupuy v. Samuels,
423 F.3d 714 (7th Cir. 2005). Here, we must decide
whether the Gautreaux plaintiffs still qualify as “prevail-
ing parties” for purposes of 42 U.S.C. § 1988, the statute
that authorizes fees for successful civil rights plaintiffs.
Under the traditional “American Rule,” parties to a
lawsuit bear their own costs. Sole, 127 S.Ct. at 219 (citing
Alyeska Pipeline Service Co. v. Wilderness Society, 412 U.S.
240, 247 (1975)). In actions brought under 42 U.S.C.
§ 1983, however, “the court, in its discretion, may allow a
prevailing party, other than the United States, a reason-
able attorney’s fee as part of its costs.” 42 U.S.C. § 1988.
The district court concluded that, once again, the plaintiffs
were “prevailing parties” entitled to attorneys’ fees. In its
challenge to that finding, the CHA argues that the Su-
preme Court’s decision in Buckhannon Bd. and Care
Home, Inc. v. West Virginia Dep’t of Health and Human
No. 05-3578 9
Res., 532 U.S. 598 (2001), as well as this court’s ruling in
Alliance to End Repression v. Chicago, supra, 356 F.3d
767, require a ruling in its favor.
We agree with the CHA that the Supreme Court’s
decision in Buckhannon throws some light on the issue
before us, even though it does not directly control the
outcome here, for it was a case in which no remedial order
ever was entered by the district court. Nonetheless,
Buckhannon reshaped litigation over attorneys’ fee
awards. The narrow question before the Court was
whether the definition of “prevailing party” in § 1988
included a plaintiff whose lawsuit was a “catalyst” that
“achieved the desired result because [it] brought about a
voluntary change in the defendant’s conduct.” 532 U.S. at
600. The Court concluded that this was not enough.
Instead, to be considered a “prevailing party” under § 1988
a plaintiff needs to win a “judicially sanctioned change
in the legal relationship of the parties. . . . A defendant’s
voluntary change in conduct, although perhaps accom-
plishing what the plaintiff sought to achieve by the
lawsuit, lacks the necessary judicial imprimatur on the
change.” 532 U.S. at 605. Either an enforceable judg-
ment on the merits or a settlement agreement enforced
through a consent decree may qualify as the necessary
court-ordered change. Following this logic, we have held
that cases in which “the terms of the settlement were
incorporated into the dismissal order and the order was
signed by the court rather than the parties, or the order
provided that the court would retain jurisdiction to enforce
the terms of the settlement,” have a sufficient judicial
imprimatur to entitle the plaintiff to prevailing-party
status. Petersen v. Gibson, 372 F.3d 862, 866-67 (7th Cir.
2004); see also T.D. v. LaGrange School Dist. No. 102, 349
F.3d 469, 478-80 (7th Cir. 2003).
Alliance applied Buckhannon to postjudgment proceed-
ings, where the underlying case resulted in the entry of
10 No. 05-3578
an equitable decree. There, a 1981 consent decree limited
the ability of the Chicago Police Department to engage in
surveillance of allegedly subversive activities. Plaintiffs’
attorneys had asked for fees for legal services rendered
in two failed proceedings for contempt, as well as an
unsuccessful defense of the consent decree (which wound
up being modified). See 356 F.3d at 768-69. This court
overturned the district court’s fee award, rejecting plain-
tiffs’ argument that their initial victory in the litigation
was enough to make them the prevailing party for the
life of the decree. Id. at 770-74.
Alliance necessarily also rejected the argument that
post-decree proceedings are inevitably part of only one
active, equitable case. At least in the circumstances of
Alliance, we concluded instead that the particular post-
decree proceedings before us had to be evaluated as free-
standing litigation. We relied in part on Buckhannon
in coming to that conclusion. Normally, postjudgment
litigation in a complex equitable proceeding is better
viewed as largely free-standing from the underlying case.
This distinguishes post-judgment efforts from unsuccess-
ful motions made en route to the successful conclusion of a
lawsuit, which can be compensated as “indispensable
inputs in a successful conclusion of litigation.” 356 F.3d
at 771. In cases like Alliance, “the postjudgment proceed-
ings . . . , 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.” Id.The district court here thought that it was enough that
the post-decree proceedings for which the plaintiffs
sought fees were not “clearly separable” from the original
judgment order. After Alliance, that strikes us as too
lenient a standard. In any event, here as in Alliance so
many years have passed and so many modifications have
been made to the decree, we conclude that we must look at
No. 05-3578 11
the time period for which fees are being sought (roughly
mid-2001 through mid-2003, as we noted earlier) as free-
standing litigation. The question before us is whether
the Gautreaux plaintiffs were correctly characterized as
prevailing parties for that set of proceedings.
In arguing that the plaintiffs are not entitled to be
regarded as having won anything notable, the CHA
focuses on the transformation of its relationship with the
plaintiffs from one of opposition to one of cooperation.
Unlike the earlier periods for which the plaintiffs re-
ceived fees, when the CHA was actively fighting them, it
now depicts the parties as essentially all on the same
team. (If this were actually the case, there would be a
serious question whether any case or controversy re-
mains to be decided. Given our conclusion below that it
is not, however, our jurisdiction is not threatened on this
basis.)
As the CHA tells the story, whereas it once was obdu-
rate, it now has “scrupulously honored the terms of the
judgment order and diligently sought modification of the
judgment order so it could properly proceed with the
Plan . . . .” Although the CHA cannot make the legal claim
that it is in the same position as the defendants in Alli-
ance, it makes the same claim rhetorically, casting the
plaintiffs as defenders of an obsolete consent decree
that serves almost no function. The CHA submits that
Gautreaux plaintiffs’ only role was to “simply
acquiesce[ ] in getting out of the way.” Implicitly, the
CHA is saying that anything plaintiffs do to allow the
CHA to implement the Plan cannot amount to plaintiffs’
success on the merits.
The glaring difficulty for the CHA, of course, is that it
is not in the same position as the defendant Chicago
Police in Alliance, for it remains bound by the district
court’s 1969 Gautreaux II remedial order. In Alliance, the
12 No. 05-3578
court found that by the time modification was sought,
“[t]he decree in its original form had accomplished its
purpose and had become obsolete.” Alliance, 356 F.3d at
774. Here, in contrast, the CHA’s motion to “clarify” the
decree to reflect the changed circumstances was re-
jected. There has been no system-wide modification of the
injunction and no showing (as of the time the district
court ruled here) that the public housing system has been
desegregated enough to warrant dissolution or modifica-
tion of the decree. Importantly, the CHA has never re-
quested such dissolution, even though it did seek clarifica-
tion of the judgment in 1998. This court has already
commented on the fact that this option remains open to
the CHA. See Gautreaux v. CHA, 178 F.3d at 958 (“If
CHA is displeased with the 1969 injunction, the receiver-
ship order, or the recent district court orders flowing
from them, then it should seek to modify or terminate
any or all of them.”). As things stand now, we are not at
liberty to treat the injunction as though it no longer exists.
Gautreaux II is still in effect, and the court’s five joint
orders between August 2001 and July 2003 were shaped
by the remedial decree. The CHA makes two errors in
arguing that the Gautreaux plaintiffs gained nothing
from any of the orders related to the Limited Area re-
vitalization. The first mistake is the confusion of means
and ends—a mistake that is apparent in the CHA’s
characterization of plaintiffs’ waiver of some of the
dictates of Gautreaux II’s remedial order as “relinquish-
ing their own victory.” What plaintiffs have sought all
along is the desegregation of public housing in Chicago.
The Gautreaux II remedial order was nothing more than
the means by which the district court believed, in 1969,
that such desegregation could be effected. The fact that
the plaintiffs agreed to give up certain restrictions and
that the court agreed to allow CHA to fulfill its obligations
through other means does not amount to a white flag
from the plaintiffs.
No. 05-3578 13
Instead, as the district court has recognized ever since it
granted the first limited waiver of Gautreaux II’s restric-
tions for the Horner revitalization in 1995, opinions about
how to desegregate public housing have changed over the
30 plus years since the judgment. In addressing the
proposed Horner revitalization order, the court remarked
that the proposal “addresses a 21st century view of the
City of Chicago and its housing problem as opposed to the
1966 view that was properly the view at the time of the
filing of the Gautreaux litigation.” The court’s waivers of
particular parts of the remedial decree rest on its “being
cognizant that the principal remedial purpose of the
Orders previously entered in these consolidated cases
has been and is to provide plaintiff class families with
desegregated housing opportunities.” Gautreaux v. CHA,
Order of Sept. 12, 2002. In accordance with this goal,
carefully-tailored waivers have been entered under cer-
tain circumstances and for particular geographic areas.
The court has allowed housing to be built in Limited Areas
only “upon a sufficient showing of ‘revitalizing’ circum-
stances such that a responsible forecast of economic
integration, with a longer term possibility of racial deseg-
regation, could be made.” Gautreaux v. CHA, Order of June
3, 1996. These waivers have been agreed to because, in
plaintiffs’ opinion, they offer a better chance of achieving
what the Gautreaux suit has always sought—integration
in public housing—than would rigid insistence on the
provisions of the Gautreaux II decree.
The CHA’s second error is in failing to recognize that
the Gautreaux plaintiffs, through their limited waivers
of specific portions of the remedial decree, have achieved
success on the merits. The CHA admits that the agreed
orders are the product of negotiation. For example, in one
1997 motion to the district court, the CHA described the
effect of the remedial decree on their building of housing
under the Plan: “In the past the CHA has been forced to
14 No. 05-3578
negotiate with plaintiff counsel for approval of high-rise
developments, such as Horner and Lakefront, that were
funded in whole or in part with ‘Gautreaux development
money.’ As a result, the CHA’s [sic] ends up with an
agreed order to present to the Court, but not the program
that it would have created without having to negotiate
with plaintiff ’s counsel.” (Emphasis added.) In 1998,
Terry Peterson further described the negotiation of agreed
orders:
It’s the waiver process that is the most intru-
sive . . . . [H]ere’s how it goes in reality: CHA needs to
get a waiver from the Court to do a Hope VI program.
That means the Court will ask us to negotiate with
Mr. Polikoff, as plaintiffs’ representative. . . .
Mr. Polikoff will begin the negotiating by first
examining what neighborhood it is we’re focusing on;
next, what buildings do we want to demolish; next
what buildings do we want to rehabilitate; next, where
are we going to build the replacement housing; and
then it’s going to go all the way down to tenant selec-
tion and then to all of the other miscellaneous things
that were brought to the attention of the Court . . . .
So the negotiation that would be required by the
Court, and properly so, would bring the plaintiffs into
the whole program. It’s very intrusive. . . .
[T]hey are going to want to negotiate from the
beginning, and in order to get an agreed waiver we
would have to negotiate.
Now when the CHA negotiates and they agree on a
waiver and they bring it to you, they’re not happy
with that order. That’s what they’ve been able to
negotiate. That’s not what they wanted, it’s not what
they hoped for, but it was what there were able to
negotiate.
No. 05-3578 15
Plaintiffs could not say it any better themselves. The
CHA has had to change its position in order to win plain-
tiffs’ approval of the waiver orders, and that change
in position is embodied in judicial orders. The success on
the merits that plaintiffs achieved through the agreed
orders is most evident in the December 12, 2002, order.
The court concluded in this order that it should allow
building of more new housing in the Horner Revitalization
Area because there has been “a sufficient showing of
‘revitalizing’ circumstances such that a responsible
forecast of economic integration, with a longer term
possibility of racial desegregation could be made . . . .”
Moreover, the order conferred numerous benefits and
powers on the plaintiffs: it gave them control over “the
initial location and configuration” of the units in which
Gautreaux families would be housed above the third
floor; it fixed the maximum number of units of public
housing (271); it fixed the maximum ratio of public to non-
public units that could be built in the designated area
(35.5% public housing); it required equal distribution of
the public units throughout the complex; it required
annual written reports to be provided by the CHA to
plaintiffs; and it permitted the plaintiffs to allocate
some of the moneys from the “set aside” decree in a
companion case (Gautreaux v. Weaver, 66 C 1460 N.D. Ill.)
to the building of the new housing.
The order of September 7, 2001, reflects the same
attention to the plaintiffs’ demands. That order rests on a
similar conclusion about the possibility of creating “viable
mixed-income and desegregated housing opportunities
for CHA plaintiff families” in the area in which the
restrictions were being waived. The order specified the
number of units to be built in each of four mid-rise and 14
walk-up buildings. For example, the order waived the
three-story height restriction in the Renaissance North
Mid-Rise Building, which was to be built at 535 West
16 No. 05-3578
North Avenue and was to have 59 units, 18 of which
would be public housing dispersed throughout the build-
ing. It did the same for the 11 buildings in the order. The
third order dealing with revitalization, issued September
11, 2002, added approximately 100 acres to the North
Kenwood-Oakland revitalizing area, which had been the
subject of a June 3, 1996, order. The later order iden-
tified the portion of the Limited Areas in which the
receiver would be permitted to develop up to 850 units of
public housing. Finally, a fourth order, issued on August
29, 2002, resulted in an improved procedure for placing
families displaced from public housing that had been
destroyed as a result of the Plan into scattered-site units,
which are all located in the General Area. This was
designed to provide housing for the displaced families as
well as to try to help reduce chronic vacancy in the
scattered-site units built by the Gautreaux receiver. Even
if the fifth order did not deliver as much relief to the
plaintiffs, nothing says that they must have prevailed on
every single request during the time period at issue in
order to be viewed as “prevailing parties.” They achieved
substantial results, embodied in court orders, and that
is enough.
That the CHA and the Gautreaux plaintiffs agreed on
these orders cannot mean that the substantial benefits
flowing to the latter are not “fruits” of the litigation.
Buckhannon makes it clear that a judicially sanctioned
consent decree is a firm basis for a fee award. See 532
U.S. at 604. We conclude that plaintiffs have met their
burden of showing they were awarded “judicial relief ” and
that they are prevailing parties for § 1988 purposes.
III
The CHA’s final argument is that even if the Gautreaux
plaintiffs’ attorneys merited fees, the district court abused
No. 05-3578 17
its discretion by giving them too much. Our review of
the amount of fees awarded is highly deferential to the
district court: “If ever there were a case for reviewing
the determinations of a trial court under a highly deferen-
tial version of the ‘abuse of discretion’ standard, it is in
the matter of determining the reasonableness of the time
spent by a lawyer on a particular task in a litigation in
that court.” Ustrak v. Fairman, 851 F.2d 983, 987 (7th
Cir. 1988). CHA raises three principal objections to the
district court’s decision, none of which is sufficient to
demonstrate that the district court abused its discretion.
(We have no comment on the CHA’s additional complaints
about the adequacy of plaintiffs’ counsels’ annotated time
sheets and the few hours that were eliminated from the
plaintiffs’ total hour count but not their time sheets,
apart from saying that we find no merit in them.)
“In calculating reasonable attorneys’ fees, the district
court should first determine the lodestar amount by
multiplying the reasonable number of hours worked by
the market rate.” Bankston v. State of Ill., 60 F.3d 1249,
1255 (7th Cir. 1995). “The reasonable hourly rate used
in calculating the lodestar must be based on the market
rate for the attorney’s work. ‘The market rate is the rate
that lawyers of similar ability and experience in the
community normally charge their paying clients for the
type of work in question.’ ” McNabola v. Chicago Transit
Authority, 10 F.3d 501, 519 (7th Cir. 1993) (quoting
Eddleman v. Switchcraft, Inc., 965 F.2d 422, 424 (7th Cir.
1992)) (internal citation omitted). “The burden of proving
the market rate is on the party seeking the fee award.
However, once an attorney provides evidence establishing
his market rate, the opposing party has the burden of
demonstrating why a lower rate should be awarded.”
Uphoff v. Elegant Bath, Ltd., 176 F.3d 399, 407 (7th Cir.
1999) (internal citations omitted).
18 No. 05-3578
Plaintiffs’ attorneys have no paying clients, and so they
presented evidence as to what their reasonable fees
would have been through the affidavit of Attorney Lowell
Sachnoff. He represented that the time of plaintiffs’
various lawyers was compensable at the following rates:
$400 for lead counsel Alexander Polikoff (who has litigated
the case since it was filed); $350 for Julie Elena Brown and
Robert L. Jones, Jr.; $265 for Adam Gross; $240 for
Jonathan M. Kaden and Mary Anderson; $225 for Nicholas
J. Brunick; and $200 for Henry J. Ford, Jr., and Eloise P.
Lawrence.
Sachnoff is a director of Business and Professional
People for the Public Interest (BPI), the organization that
employs plaintiffs’ attorneys. The CHA argues that, as
a result of this relationship, Sachnoff has an interest in
BPI’s receiving as large a fee as possible and, therefore,
“his self-serving affidavit alone cannot satisfy a plaintiff ’s
burden of establishing market value for that attorney’s
services.” Uphoff, 176 F.3d at 408. The district court
was aware of Sachnoff ’s position, however, and was
within its discretion to regard this as going to the weight
of his evidence rather than its admissibility. Moreover, the
district court correctly noted that Sachnoff was just one of
more than 40 directors listed on the BPI website, or the
more than 50 on the Board as a whole. See About BPI:
Board of Directors, at http://www.bpichicago.org/board.
html (last visited June 7, 2007). Even where the lawyer
whose rate is being established works for the firm of the
affiant, there is no rule requiring the disqualification of
the affiant’s evidence about the billing rate. See Denius v.
Dunlop, 330 F.3d 919, 930-31 (7th Cir. 2003). Second,
whatever Sachnoff ’s incentives, they are not the kind of
direct financial incentives that existed in Uphoff, the
case on which defendant relies. There the district court
rejected rates supported only by an affidavit from the lead
lawyer in the case, who testified that “all of the requested
No. 05-3578 19
hourly rates” that he himself submitted, which also
covered the associates and paralegal in his firm, “are
commensurate with each respective attorney’s market
rate.” 176 F.3d at 407. Third, although the CHA wants
us to accept evidence of the fees it pays attorneys to
demonstrate that a lower rate should be awarded, it
has offered no convincing argument why the district
court was obliged to use the City’s pricing structure as
a proxy for what the market will bear.
Finally, even if its prior agreements on fee awards does
not bind the CHA here, see Evans v. City of Chicago, 10
F.3d 474 (7th Cir. 1993) (en banc), the rates established
there are legitimate evidence as to whether these rates
are reasonable. Because many of the lawyers have re-
mained the same, the district court was entitled to
find that the comparison was particularly instructive. In
March of 2002, for the period covering September 25, 1999,
to July 31, 2001, plaintiffs’ attorneys were granted fees
for which the rates were as follows: $360 for Polikoff;
$275 for Brown and Jones; $190 for Gross; $135 for Kaden;
and $130 for Brunick, then the most junior lawyer. In June
of 2000, for the period covering October 16, 1996, to
September 24, 1999, the rates were as follows: $360 for
Polikoff; $260 for Brown and Jones; $190 for Gross; and
$120 for Kaden, then the most junior lawyer. When this
evidence of the prior fees is taken together with the
affidavit, we can find no justification for concluding that
the district court abused its discretion in approving
these rates.
The CHA also objects to the number of attorneys plain-
tiffs assigned to the case. It is unhappy that plaintiffs used
the services of nine lawyers over the two-year period, even
though none of the lawyers spent all of his or her time
on this project. The greatest number of hours billed by
any one attorney over the two-year period was 530.675
20 No. 05-3578
by Nick Brunick (notably, an attorney with a billing rate
of $225); the fewest was Jonathan Kaden with 28.5.
Use of one or more lawyer is a common practice, primar-
ily because it often results in a more efficient distribution
of work. See Kurowski v. Kajewski, 848 F.2d 767, 776 (7th
Cir. 1988). It allows more experienced, accomplished, and
expensive attorneys to handle more complicated matters
and less experienced, accomplished, and expensive
counsel to handle less complicated ones. Having one
lawyer handle all of the work, as the CHA suggests, would
not necessarily result in lower costs for the defendant.
For example, had plaintiff ’s lead counsel, Mr. Polikoff,
billed all of the hours, the cost to the CHA would have
been around $1,029,600—an increase of almost 42% over
the $724,732 that plaintiffs actually billed. If Polikoff had
been the sole lawyer and the 489 hours of intra-team
communications were cut, the bill would still have been
around $834,000, more than 15% greater than the fees
approved by the district court. Hypothetical illustrations
aside, the fact that nearly 65% of the hours billed were
for work by attorneys whose fees were at the low end of
the range ($200-$265) illustrates how multiple lawyers
can lead to a more cost-efficient allocation of work.
The district court also did not abuse its discretion in
concluding that the time spent on intra-team communica-
tions was compensable. There is no hard-and-fast rule
as to how many lawyers can be at a meeting or how many
hours lawyers can spend discussing a project. Where the
district court has found, as it did here, that appropriate
trimming took place to bring the billed hours within a
reasonable range, it is not this court’s job to second-guess
that judgment.
The CHA’s third and final category of objections focuses
on the types of work for which plaintiffs’ attorneys billed.
CHA complains that the lion’s share of this work was
No. 05-3578 21
either not related to the postjudgment relief received or
it was non-compensable monitoring. CHA points to the
work of plaintiffs’ attorneys with respect to habitability,
tenant assignments, and participation in Working Groups
related to the development of certain revitalization
projects. On this point, the CHA again has the steep
burden of convincing us that the district court abused its
discretion when it held that “Plaintiffs have categorized
each billing entry to show that the underlying task is
within the scope of the [judgment order] and is consis-
tent with the past orders awarding fees to the Plaintiffs.”
Hensley v. Eckerhart, 461 U.S. 424 (1983), makes clear
that while the district court has no authority to order a
defendant to pay fees for time spent on matters unrelated
to the issues on which plaintiff prevailed, efforts on
matters related to the plaintiffs’ success are compensable.
See id. at 435-37. There is no specific formula to be used
in determining which efforts of plaintiffs’ counsel are
related, and appellate review of such decisions is deferen-
tial. See Jackson v. Illinois Prisoner Review Bd., 856 F.2d
890, 894 (7th Cir. 1988). So long as the plaintiffs’ lawyers’
activities are factually related to issues on which the
plaintiffs have achieved postjudgment judicial relief and
the work was reasonably calculated to result in relief, the
district court may grant attorneys’ fees.
The district court did not abuse its discretion in find-
ing that the efforts of plaintiffs’ attorneys here merited
attorneys’ fees. This work was related to the successful
postjudgment strategies that the plaintiffs pursued:
getting new mixed-income public housing built in accor-
dance with specific conditions, as well as ensuring that
scattered-site developments in the General Area are
habitable and being inhabited—precisely the issues for
which the district court has entered orders in this period.
Finally, with respect to the claim that plaintiffs’ activi-
ties were non-compensable monitoring, the prior agreed fee
22 No. 05-3578
orders establish a course-of-dealing in this case that
demonstrates what the expectations of the parties and the
court were at the time this work was undertaken. In
Alliance, we held that plaintiffs were not entitled to fees
for post-decree monitoring because such activities pro-
duced no enforceable order and because the Chicago
Police Board had been set up for the purpose of monitor-
ing. See 356 F.3d at 772-73. Plaintiffs’ counsel were not
“expected to be the enforcers of the decree.” Id. at 772.
Every case is different, however, and here, the court’s
orders and the course-of-dealing between the parties
demonstrates that plaintiffs—at times, in addition to the
court-appointed receiver—were expected to be the enforc-
ers of the decree. They could not perform the latter
function without at least some monitoring of their own.
We cannot find that the district court abused its discre-
tion in finding that the challenged activities of plaintiffs’
attorneys were compensable.
IV
In the end, the CHA is really arguing that the supervi-
sion of the building of public housing by the federal district
court is no longer necessary. Plaintiffs have made it
clear that they do not share that view. We reiterate
what we said in 1999: “If CHA is displeased with the
1969 injunction, the receivership order, or the recent
district court orders flowing from them, then it should seek
to modify or terminate any or all of them.” 178 F.3d at 958.
If it does so, all interested parties will have an oppor-
tunity to present their views to the district court. That
broad issue is not properly before this court. The only
question we have been asked to decide is whether plain-
tiffs’ attorneys are entitled to the fees that the district
court awarded them for their work from August 2001
through July 2003. We conclude that the plaintiffs are
No. 05-3578 23
still “prevailing parties” and that the district court did
not abuse its discretion in the amount of the fees it
awarded.
The order of the district court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-26-07