City of Chicago v. Robert Winston

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 13-3553 & 14-1371
ROBERT L. WINSTON,
Plaintiff-Appellee,
v.
OFFICER O’BRIEN, et al.,
Defendants,
APPEAL OF: CITY OF CHICAGO.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 1:10-cv-08218 —Elaine E. Bucklo, Judge.
____________________
ARGUED OCTOBER 3, 2014 — DECIDED NOVEMBER 7, 2014
AMENDED OPINION ISSUED NOVEMBER 14, 2014
____________________
Before POSNER, ROVNER, and TINDER, Circuit Judges.
TINDER, Circuit Judge. The City of Chicago appeals the
district court’s decision to hold it responsible for attorney’s
fees assessed under 42 U.S.C. § 1988 against one of its offic-
2 Nos. 13-3553 & 14-1371
ers, Matthew O’Brien. The district court concluded that the
City was liable for the fees under § 9-102 of Illinois’s Local
Governmental and Governmental Employees Tort Immunity
Act, 745 ILCS 10/9-102.
I. BACKGROUND
In 2010, Winston sued Officer O’Brien under 42 U.S.C.
§ 1983, alleging that O’Brien and Officer Nicholas Yates used
excessive force while detaining Winston at a Chicago police
station. According to Winston, O’Brien tasered him repeat-
edly and punched him while he was in handcuffs. When the
case went to trial, attorneys recruited to represent Winston
asked the jury to award $10,000 in compensatory damages
against each officer and an unspecified amount of punitive
damages. The jury found in favor of Yates, but determined
that O’Brien was liable for $1 in compensatory damages and
$7,500 in punitive damages.
Winston then petitioned for $336,918 in attorney’s fees
under § 1988. In response, Officer O’Brien argued that Win-
ston could not recover fees because the compensatory dam-
ages awarded were de minimis. But the district court reject-
ed that argument, explaining that Winston’s “victory was
real, not Pyrrhic,” because the jury awarded him “sizable
punitive damages against Officer O’Brien, whose actions
were the primary focus of plaintiff’s case.” The court further
determined that Winston’s attorneys could recover fees for
all their requested hours but sought too high of an hourly
rate. The court granted a reduced fee award of $187,467.
Seeking to collect on this award, Winston filed a “petition
for indemnification and motion for writ of execution against
the City of Chicago.” In the petition, Winston asked the dis-
Nos. 13-3553 & 14-1371 3
trict court to order the City to pay the fee award or indemni-
fy Officer O’Brien for the fees. Winston argued that the City
was required to pay for fees under state law, which pro-
vides:
A local public entity is empowered and di-
rected to pay any tort judgment or settlement
for compensatory damages (and may pay any
associated attorney’s fees and costs) for which
it or an employee while acting within the scope
of his employment is liable in the manner pro-
vided in this Article.
745 ILCS 10/9-102.
Additionally, Winston contended that the City’s collec-
tive bargaining agreement (“CBA”) with its police officers
required indemnification. Article 22 of that agreement ad-
dresses indemnification, and under sections 22.1 and 22.4,
the City “shall be responsible for, hold officers harmless
from and pay for damages or monies which may be ad-
judged, assessed, or otherwise levied against any officer
cover by this Agreement,” so long as the officer was acting
within the scope of his or her employment and cooperated
with the City’s defense. Section 22.5 allows for expedited ar-
bitration of grievances alleging violations of Article 22.
In response to Winston’s petition, the City noted that § 9-
102 states only that municipalities “may pay” attorney’s fees
and that those fees must be “associated” with an award of
compensatory damages. The City argued that the fees at is-
sue are not adequately associated with compensatory (ver-
sus punitive) damages to require indemnification and that
§ 9-102 makes indemnification discretionary rather than
4 Nos. 13-3553 & 14-1371
mandatory. The City also contended that Winston had no
standing to enforce the CBA and that the court should re-
frain from determining whether the CBA applied.
The district court sided with Winston. The court first re-
jected the City’s argument that the fees were not associated
with an award of compensatory damages, explaining that
there was “no clear divide between the legal work per-
formed in support of Winston’s claim for compensatory
damages and the legal work performed in support of his
claim for punitive damages.” The court then reasoned, quot-
ing Lally v. City of Chicago, No. 10 C 5011, 2013 WL 1984422,
at *11 (N.D. Ill. May 13, 2013), that the City’s “‘liability for
attorneys’ fees comes from its responsibility for the compen-
satory damages awarded.’” The court also observed that the
City did not deny that it “was at the helm of defendant’s de-
fense” and “made key strategic decisions that increased
Winston’s legal fees.” For that reason, the court concluded,
“it would be unfair to pass the cost of the City’s litigation
strategy on to [Winston], who may have little chance of re-
covering from defendant the fees to which he is entitled un-
der § 1988.” The court did not address the City’s argument
about the discretionary nature of the attorney-fee language
in § 9-102 or rely on the indemnification provisions in the
CBA.
The next day, the Chicago Police Department issued a re-
sponse to a grievance that the police union had filed on Of-
ficer O’Brien’s behalf seeking indemnification for compensa-
tory and punitive damages under Article 22 of the CBA. In
the response, O’Brien’s immediate supervisor and an acting
commander agreed that his grievance could not be resolved
at their level of review. A month later, a police commander
Nos. 13-3553 & 14-1371 5
explained in a letter to the union’s grievance representative
that “[t]he City will pay for the compensatory damages
awarded to plaintiff, along with the related attorneys’ fees in
compliance with 745 ILCS 10/9-102.” The commander added,
however, that the City would not pay for punitive damages.
There is no indication that O’Brien or the police union has
ever sought arbitration as permitted by the CBA.
After the City appealed the initial indemnification order,
the district court granted Winston’s request for an additional
$90,777 in supplemental attorney’s fees incurred after Win-
ston initially petitioned for fees. In doing so, the court again
rejected the City’s argument that it should not be held re-
sponsible for the fees because it was not a party when the
court first granted Winston’s request for fees. The court not-
ed that “the City does not dispute that it controlled defend-
ants’ litigation strategy.” The City appealed this decision in
addition to the earlier indemnification decision, and we con-
solidated our review of the two orders.
II. DISCUSSION
On appeal, the City contends that the district court
lacked authority to hold it responsible for the attorney’s fees
assessed against Officer O’Brien. The City maintains that the
court’s orders went beyond what is authorized under either
§ 1988 or § 9-102.
Winston does not contend that § 1988 authorizes indem-
nification by its own terms. Generally, “[t]hat a plaintiff has
prevailed against one party does not entitle him to fees from
another party, let alone from a nonparty.” Kentucky v. Gra-
ham, 473 U.S. 159, 168 (1985). For that reason, the Supreme
Court has held that success in civil-rights litigation against
6 Nos. 13-3553 & 14-1371
individual government officials does not necessarily entitle a
plaintiff to fees from a governmental entity. Id. We have
acknowledged, however, that a state indemnification statute
might permit recovery of fees independent of § 1988.
See Richardson v. City of Chicago, 740 F.3d 1099, 1102 (7th Cir.
2014); Graham v. Sauk Prairie Police Comm’n, 915 F.2d 1085,
1108 (7th Cir. 1990).
We also agree with the City that § 9-102 does not man-
date indemnification of attorney’s fees. Under Illinois law,
“[t]he primary goal of statutory construction is to ascertain
and give effect to the intent of the legislature,” and “[t]he
most reliable indicator of legislative intent is the language of
the statute, which is to be given its plain, ordinary and
popularly understood meaning.” In re Detention of Powell,
839 N.E.2d 1008, 1015 (Ill. 2005); see United States v. Clintwood
Elkhorn Mining Co., 553 U.S. 1, 11 (2008) (recognizing the
presumption that plain language expresses legislative in-
tent). Section 9-102 “direct[s]” municipalities to pay compen-
satory damages against employees acting within the scope of
their employment, but adds that municipalities “may pay
any associated attorney’s fees and costs” (emphasis added).
There is no dispute that “[t]he word ‘may’ customarily con-
notes discretion.” Jama v. Immigration & Customs Enforcement,
543 U.S. 335, 346 (2005); see Fogerty v. Fantasy, Inc., 510 U.S.
517, 533 (1994). Winston asserts that we should consider that
the City did not appeal an earlier ruling holding it responsi-
ble for fees under § 9-102. See Lally, 2013 WL 1984422, at *11.
But that argument is meritless. Winston cites no precedent
suggesting that the City’s decision not to appeal an earlier
adverse ruling should overcome the plain meaning of
§ 9-102.
Nos. 13-3553 & 14-1371 7
Winston also argues that the City’s reading of § 9-102 is
unfair because it would deprive plaintiffs’ attorneys of full
compensation when they prevail against judgment-proof de-
fendants. Winston points to our analysis in Graham, 915 F.2d
at 1108, which upheld a district court’s decision to require,
based on a Wisconsin indemnity statute, that a municipality
indemnify attorney’s fees assessed against one of its police
officers. The plaintiff in Graham could not recover absent in-
demnification, we explained, and thus requiring indemnifi-
cation of fees served “§ 1988’s purpose of ensuring effective
access to the judicial process for persons with civil rights
grievances” and “the indemnity statute’s policy of protecting
a public employee from personal financial loss because of a
judgment resulting from an act committed within the scope
of employment.” Id.
But these policy concerns do not undermine our interpre-
tation of § 9-102. In Graham, the Wisconsin indemnity statute
dictated that municipalities “shall” pay the “damages and
costs” of employees, and the parties did not dispute that
“costs” included attorney’s fees. 915 F.2d at 1107–08. Section
9-102, in contrast, includes no requirement to pay “costs,” or
anything beyond “any tort judgment or settlement for com-
pensatory damages.” Moreover, the Illinois Supreme Court
rejected arguments similar to Winston’s when it refused to
construe the term “compensatory damages” in an earlier
version of § 9-102, which was silent about fees, as including
attorney’s fees. Yang v. City of Chicago, 745 N.E.2d 541, 547
(Ill. 2001). The court in Yang reasoned that the legislative
purposes of § 9-102 and § 1988 did not justify extending § 9-
102 beyond its plain language. The policy arguments reject-
ed in Yang are no more persuasive as a reason to abandon a
plain reading of § 9-102 now that the statute has been
8 Nos. 13-3553 & 14-1371
amended to clarify that municipalities “may” indemnify fees
when they so choose.
Winston next argues that, even if § 9-102 gives the City
discretion to choose to indemnify fees, the City “made this
choice in advance” by agreeing in the CBA to pay “damages
or monies” assessed against its officers. He clarifies that he is
not asking us to enforce the CBA (of course, he would have
no standing to do so) but to interpret § 9-102 by taking the
CBA into account.
However, the fact that the terms of the CBA are subject to
dispute cautions against relying on it to interpret § 9-102. Ar-
ticle 22 of the CBA never explicitly mentions attorney’s fees.
The phrase “damages or monies” in Section 22.1 could be
read as covering fees. But that phrase also could be read as
covering punitive damages, and as the City notes, indemni-
fication of punitive damages is prohibited under Illinois law.
See 745 ILCS 10/2-302. This conflict suggests that the CBA
should not be given its broadest possible reading.
More importantly, regardless of interpretation of the
CBA, we are not convinced that the CBA somehow modifies
the plain language of § 9-102. As Winston acknowledges, he
asks for indemnification solely under § 9-102, not the CBA,
which has its own procedures for determining an employ-
ee’s entitlement to indemnification. The CBA’s indemnifica-
tion provisions never cite § 9-102 nor give any hint that they
are intended to implement § 9-102. Winston has not per-
suaded us that the CBA transforms § 9-102 from a rule that
municipalities “may pay” attorney’s fees to one requiring
that they “must” or “shall” pay fees.
Nos. 13-3553 & 14-1371 9
Winston also contends that the City conceded that the
CBA covers attorney’s fees in the police commander’s letter
agreeing to pay fees “in compliance with” § 9-102. As with
the CBA, however, the City disputes Winston’s reading of
the letter, arguing that it amounts to nothing more than a
boilerplate acknowledgment that the City will abide by state
law. Further, no matter the meaning of the letter, like the
CBA, the letter itself does not change the meaning of § 9-102.
Moreover, the letter underscores a possible danger of
Winston’s approach. That the letter was issued after Winston
moved for indemnification suggests that the district court
risked short-circuiting the grievance process if it had inter-
preted the CBA before Winston received a response. Even
now, it remains unclear whether the police union has ex-
hausted its remedies under the CBA. In the context of feder-
al labor law—though not controlling here because the CBA
is between a city and its police officers’ union, see 29 U.S.C.
§ 152(2) (defining “employer” as excluding “any State or po-
litical subdivision thereof”); see also Police Dep’t of City of Chi-
cago v. Mosley, 408 U.S. 92, 102 n.9 (1972)—the Supreme
Court has cautioned that permitting employees to sidestep
grievance procedures would undermine the effectiveness of
arbitration, which has an important role in federal labor reg-
ulations. Cf. Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S.
399, 411 (1988). This principle, though not directly applica-
ble, further cautions against basing our interpretation of § 9-
102 on the CBA or the commander’s letter.
In sum, the plain language of § 9-102 gives the City dis-
cretion in deciding to indemnify attorney’s fees associated
with an award of compensatory damages, and the CBA with
the police union does not convert § 9-102 into a mandate to
10 Nos. 13-3553 & 14-1371
pay fees. We thus conclude that the district court erred in
ordering the City to indemnify Officer O’Brien’s attorney’s
fees, and the two orders related to indemnification, to the
extent that they hold the City responsible for attorney’s fees,
are REVERSED.