In the

United States Court of Appeals

For the Seventh Circuit

____________

Nos. 01-3422, 01-3575, 02-1398 & 02-1460

RONALD C. DENIUS,

Plaintiff-Appellee/Cross-Appellant,

v.

WAYNE DUNLAP and PETER THOMAS,

Defendants-Appellants/Cross-Appellees,

and

GARY SADLER,

Defendant-Cross-Appellee.

____________

Appeals from the United States District Court

for the Central District of Illinois.

No. 97-2088—Harold A. Baker, Judge.

____________

ARGUED FEBRUARY 19, 2003—DECIDED MAY 30, 2003

____________

Before FLAUM, Chief Judge, and COFFEY and KANNE,

Circuit Judges.

FLAUM, Chief Judge. Ronald Denius claims that officials

of Illinois’s Lincoln Challenge Program (“LCP”) violated his

constitutional rights by requiring him to authorize the release of a broad range of personal information as a condi-
2 Nos. 01-3422, 01-3575, 02-1398 & 02-1460

tion of continued employment. Initially, the district court

granted summary judgment for the defendants on grounds

of qualified immunity, but on appeal we reversed in part

and remanded for further proceedings. Denius v. Dunlap,

209 F.3d 944 (7th Cir. 2000) (“Denius I”). On remand, after

a jury rendered a verdict for the defendants, the district

court granted Denius’s motion for judgment as a matter of

law (“JMOL”), a ruling from which defendants now appeal.

Denius cross-appeals, seeking additional damages and attorneys’ fees. We affirm the judgment in all respects. 

 

I. BACKGROUND

We assume familiarity with our earlier opinion and will

repeat only those facts that are necessary for resolving the

issues presently before us. The LCP is an eighteen-month

program that uses military training methods to teach “life

skills” and GED courses to teenage high school dropouts.

Denius, a retired Air Force technical sergeant, began teaching at the LCP in March 1994. When his contract was due

to expire in July 1996, defendant Wayne Dunlap, then

Director of the LCP, offered him the opportunity for renewal provided that he sign an Authorization for Release of

Personal Information (“First Authorization”), which required the disclosure of a broad range of personal information:

For the period of one year from the execution of this

form, I . . . do hereby authorize a review of and full disclosure of all records concerning myself to any duly

authorized agent of the Lincoln’s Challenge Program,

whether said records are of a public, private or confidential nature.

The intent of this authorization is to give my consent

for full and complete disclosure of records of educational institutions; financial or credit institutions, in-
Nos. 01-3422, 01-3575, 02-1398 & 02-1460 3

cluding records of loans, the records of commercial or

retail credit agencies (including credit reports and/or

ratings); and other financial statements and records

wherever filed; records maintained by the National

Personnel Records Center, the U.S. Veteran’s Administration, and County, State or Federal Law Enforcement

agencies; employment and pre-employment records, including background reports, efficiency ratings, complaints or grievances filed by or against me and the

records and recollections of attorneys at law, or of other

counsel, whether representing me or another person in

any case, either criminal or civil, in which I presently

have, or have had an interest. 

Denius refused to sign the First Authorization, and Dunlap

in turn refused to renew his teaching contract.

As a result Denius sued Dunlap under 42 U.S.C. § 1983,

claiming violations of his constitutional rights under the

First, Sixth, and Fourteenth Amendments. The district

court granted summary judgment for Dunlap on the ground

that Denius did not have a clearly established constitutional right to refuse to sign the First Authorization and

therefore Dunlap was protected by qualified immunity,

but on appeal we reversed this ruling in part. We concluded

that Denius did have a clearly established right in maintaining the confidentiality of his medical information,

Denius I, 209 F.3d at 956-57, and noted that the record as

it then stood did “not reveal whether the Authorization extends to medical records or communications as Denius

alleges,” id. at 956, n.8. We therefore remanded the case for

“this factual determination to be resolved by the district

court.” Id.

Following our decision in the interlocutory appeal, Denius

was allowed to return to work at the LCP. Attached to his

new contract, however, was another Authorization for

Release of Personal Information (“Second Authorization”).
4 Nos. 01-3422, 01-3575, 02-1398 & 02-1460

The Second Authorization was similar to the First, but it

omitted certain categories of information, such as financial

records and attorneys’ records, that Denius I found were

constitutionally protected from compelled disclosure:

For the term of the attached contract, I . . . do hereby

authorize a review of and full disclosure of all records

concerning myself to any duly authorized agent of the

Lincoln’s Challenge Program, whether the said records

are of a public, private or confidential nature.

The intent of this authorization is to give my consent

for full and complete disclosure of records maintained

by the National Personnel Records Center, the U.S.

Veteran’s Administration, and County, State or Federal

Law Enforcement Agencies; and employment and preemployment records, including information concerning

resignation or termination from employment, background reports, efficiency ratings, and complaints or

grievances filed by or against me.

Defendant Gary Sadler, who had succeeded Dunlap as

Director, required LCP employees to sign the Second

Authorization in order to remain employed with the

program.

In June 2000 defendant Peter Thomas succeeded Sadler

as LCP Director. When Denius complained to Thomas that

he found the Second Authorization objectionable, Thomas

replied that Denius did not have to sign it and that the entire form was being revised and would be sent to all employees when completed. Thomas then removed the Second

Authorization from Denius’s contract, and in August 2000

Denius returned to his teaching position. Since then, true

to Thomas’s word, neither the First nor the Second Authorization has been used by the LCP. Instead, the LCP began

using a new release form (“Third Authorization”), which

provided for a much more limited disclosure than the

earlier two:
Nos. 01-3422, 01-3575, 02-1398 & 02-1460 5

I . . . do hereby authorize the Illinois State Police to

release information relative to the existence or nonexistence of any criminal record which it might have concerning me to any Department of the State of Illinois

solely to determine my suitability for employment or

continued employment with the State of Illinois. I further authorize any agency which maintains records

relating to me to provide same on request to the Illinois

State Police for the purpose of this investigation. 

LCP employees who had already signed the First or Second

Authorization were never informed, however, that they

could make retractions. The signed release forms remained

in their personnel files.

Back before the district court, Denius amended his

complaint to add Sadler and Thomas as defendants, the latter for purposes of equitable relief only. The district court

dismissed Sadler from the case, ruling that his request that

Denius sign the Second Authorization did not deter the

exercise of any constitutional right. The remaining claims

proceeded to trial, at the start of which Denius asked the

court to take judicial notice that the National Personnel

Records Center (“NPRC”) and/or the Veteran’s Administration (“VA”) maintained medical records on retired military

personnel. Denius based his request on information he said

was taken from the official website of the National Archives

and Records Administration. Initially, the court granted

Denius’s motion and took judicial notice that “military personnel health and medical records of veterans discharged

from military service are stored at the [NPRC] or the

Veteran’s Administration.” Later, however, the court withdrew this ruling after Denius testified that on April 30,

2001 (the day before trial), he went in person to the NPRC

and obtained his medical records by providing his service

dates and numbers. Because of this testimony, the court

found that judicial notice was unnecessary. 
6 Nos. 01-3422, 01-3575, 02-1398 & 02-1460

At the close of evidence, both parties moved for JMOL. In

support of his motion, Denius argued that “the undisputed

evidence shows that the National Personnel Records

Center, in fact, had [his] medical records” and that “judicial

notice could and should be taken of the fact that medical

records are kept at the National Personnel Records Center

from the Veteran’s Administration.” Defendants, on the

other hand, claimed that they were entitled to JMOL because, among other things, Denius failed to prove that his

medical records were at the NPRC from 1996 to 1997—what

would have been the effective period of the First Authorization had Denius signed it. 

The court denied both parties’ motions and submitted the

case to the jury with the instruction that Denius had the

burden of proving each of the following six facts:

(1) the First Authorization extended to medical records;

(2) Dunlap required Denius to sign the Authorization

in order to continue teaching at the LCP; 

(3) Denius refused to sign;

(4) Dunlap told Denius that his position at the LCP

was terminated because he refused to sign;

(5) Denius suffered damages; and

(6) the termination for refusal to sign the Authorization was a proximate cause of Denius’s damages. 

During closing argument the defendants conceded that

Denius had proved elements (2) through (4); the jury, however, apparently found that Denius had not proved at least

one of the remaining three and thus rendered a verdict

against him. The jury also returned a special verdict finding that the LCP was “likely in the future to require

[Denius] to sign Authorizations for Release of Personal

Information similar to [the First and Second Authorizations] as a condition of employment.” 
Nos. 01-3422, 01-3575, 02-1398 & 02-1460 7

Following the verdict Denius renewed his motion for

JMOL, and this time the court granted the motion, holding

that no reasonable jury could have found that the First

Authorization did not extend to medical records:

[Denius] presented evidence that he was ordered to sign

a form that specifically authorized the release of records maintained by the NPRC. He then presented evidence that the NPRC in fact had his medical records

from his service in the Air Force. The defendant[s] offered no evidence to dispute this testimony. Thus, the

form Denius was required to sign would have authorized the release of all records from the very agency

that maintained his medical records. There is nothing

in the Seventh Circuit’s decision [in Denius I] that required the plaintiff also to show that . . . the NPRC actually housed his records at the precise moment he was

asked to sign the form. . . . The uncontradicted evidence

presented by the plaintiff established that the form the

defendant required him to sign extended to medical records. No reasonable jury could have found otherwise. 

The court also held that no reasonable factfinder could have

concluded that Denius did not suffer damages as a result of

the defendants’ refusal to renew his contract. As an alternative to JMOL, the court granted Denius’s request for a new

trial, finding that the verdict was against the manifest

weight of the evidence and was “a great injustice” because

it “possibly” resulted from defense counsel’s remarks during

closing argument that Denius was seeking a verdict against

Dunlap personally.

A second trial was held to determine damages. At the

close of evidence, the defendants moved for JMOL on the

issue of emotional damages, contending that there was insufficient evidence to justify sending the issue to the jury.

The court agreed and granted the motion. The jury then

awarded Denius $129,395—the exact amount of his lost

wages from August 1996 to August 2000. Denius moved for
8 Nos. 01-3422, 01-3575, 02-1398 & 02-1460

1 Defendants also appealed the district court’s award of attorneys’

fees, but they have abandoned that issue because they failed to

address it in their opening brief.

2 Denius has withdrawn his cross-appeal from the district court’s

order dismissing Sadler from the case. 

a new trial, claiming that he should have received additional damages for emotional distress, but the court denied

relief. Later, the court granted Denius an injunction barring Thomas and his successors from conditioning Denius’s

continued employment on his authorizing the release of financial, medical, or attorney-client records. The court relied

on the jury’s special verdict to support the grant of injunctive relief. Further, the court stated that it “had the chance

to consider the evidence and observe the trial, and it believe[d] that the defendants are capable of using a similar

form in the future.” In particular the court pointed to defense counsel’s closing argument, which the court thought

“castigate[d]” Denius and “malign[ed] [his] integrity.” The

court refused to grant declaratory relief, finding it would

serve no additional purpose.

Defendants appeal the denial of their motion for JMOL,

the grant of Denius’s motion for JMOL, and the grant of his

motion for injunctive relief.1

 Denius cross-appeals, seeking

review of the court’s denial of his motion for a new trial on

damages, the denial of declaratory relief, and the court’s

calculation of attorneys’ fees.2

II. DISCUSSION

A. Grant of Denius’s Motion for JMOL

The defendants claim that the district court erred in

granting JMOL for Denius because a reasonable jury could

have concluded that he did not establish that the First

Authorization extended to medical records (the first of the
Nos. 01-3422, 01-3575, 02-1398 & 02-1460 9

3 This is the only ground on which the defendants challenge the

court’s grant of JMOL to Denius. 

4 Denius tried to call Ronald Hindman, Director of the NPRC, to

establish this point, but the district court barred Hindman from

testifying because Denius did not identify him during pretrial discovery. 

six propositions that he was required to prove).3 In support

of this argument, the defendants point out that Denius

“presented no evidence that the NPRC maintained his medical records between July 1996 and August 1997, the period

during which the Authorization was effective,” nor did he

“adduce any evidence that the NPRC routinely maintained

medical records of military personnel. Denius offered no

evidence about the nature of the NPRC—what it is, how it

operates, who runs it. He called no witness with any personal knowledge about the operations of the NPRC to testify that it routinely maintained medical records of military

personnel.”4

 The defendants also contend that the jury

“may simply have disbelieved Denius when he testified that

he obtained his medical records from the NPRC [in 2001].

The jury was free to do so.”

In response Denius maintains that his testimony “at a

minimum . . . demonstrated that [the] NPRC maintains

medical records and created a rebuttable presumption

[that] the NPRC had custody of his medical records in 1996,

or might reasonably obtain custody during the life of the

[First Authorization], which presumption [defendants]

failed to rebut.” And, Denius argues, because his testimony

was uncontradicted and unimpeached, the jury was required to take it as true. Denius also offers a number of alternative bases on which he says we can affirm the district

court’s judgment. 

We find one of these alternative bases persuasive—that

the district court abused its discretion in withdrawing its

judicial notice of the information from NPRC’s official web-
10 Nos. 01-3422, 01-3575, 02-1398 & 02-1460

site, see Waid v. Merrill Area Pub. Sch., 130 F.3d 1268,

1272 (7th Cir. 1997)—and therefore see no need to address

the parties’ remaining arguments. Federal Rule of Evidence

201 provides that, when requested by a party, a court

“shall” take judicial notice of a fact that is “not subject to

reasonable dispute in that it is . . . capable of accurate and

ready determination by resort to sources whose accuracy

cannot reasonably be questioned.” Fed. R. Evid. 201(b), (d).

We cannot agree with the court’s determination that judicial notice was unnecessary given Denius’s own testimony

regarding his records. The information on the website was

not duplicative of the testimony; rather, it would have provided essential corroboration. Further, the fact that the

NPRC maintains medical records of military personnel is

appropriate for judicial notice because it is not subject to

reasonable dispute. As the agency’s website explains,

The National Personnel Records Center, Military Personnel Records (NPRC-MPR) is the repository of millions of military personnel, health, and medical records

of discharged and deceased veterans of all services during the 20th century. NPRC (MPR) also stores medical

treatment records of retirees from all services, as well

as records for dependent and other persons treated at

naval medical facilities. Information from the records is

made available upon written request (with signature

and date) to the extent allowed by law.

http://www.archives.gov/facilities/mo/st_louis/military

_personnel_records.html; see Laborers’ Pension Fund v.

Blackmore Sewer Constr., Inc., 298 F.3d 600, 607 (7th Cir.

2002) (taking judicial notice of information from official

website of the FDIC); see also United States v. Chapel, 41

F.3d 1338, 1342 (9th Cir. 1994) (district court properly took

judicial notice of FDIC-insurance status; the FDIC, “the

insuring agency itself, is a source whose accuracy cannot be

reasonably questioned”) (quotations omitted). Moreover, a

Westlaw search of the Federal Register uncovered numer-
Nos. 01-3422, 01-3575, 02-1398 & 02-1460 11

ous Notices disclosing the same information. E.g., 67 Fed.

Reg. 69765, 69765 (Nov. 19, 2002) (“[T]he National Personnel Records Center (NPRC) of the National Archives and

Records Administration (NARA) administers military personnel and medical records of veterans after discharge,

retirement, and death.”); 67 Fed. Reg. 55277, 55278 (Aug.

28, 2002) (“In accordance with rules issued by the Department of Defense (DOD) and the Department of Transportation (DOT), the NPRC . . . administers military service

records of veterans after discharge, retirement, and death,

and the medical records of these veterans, current members

of the Armed Forces, and dependents of Armed Forces personnel.”); 58 Fed. Reg. 10002, 10463 (Feb. 22, 1993) (“On

separation/retirement the [health] records [of a U.S. military member] are forwarded to [the] National Personnel Records Center (NPRC/MPR) or other designated depository . . . such as . . . to [the] appropriate Veterans

Administration Regional Office, if VA claim has been

filed.”). 

Judicial notice may be taken at any time, including on

appeal. Fed. R. Evid. 201(f); United States v. Burch, 169

F.3d 666, 671 (10th Cir. 1999); Green v. Warden, U.S.

Penitentiary, 699 F.3d 364, 369 (7th Cir. 1983). We exercise

that authority here to note that the NPRC and the VA do in

fact maintain medical records of retired United States

military personnel. See also 44 U.S.C. § 1507 (“The contents

of the Federal Register shall be judicially noticed . . . .”);

City of Charleston v. A Fisherman’s Best, Inc., 310 F.3d 155,

172 (4th Cir. 2002) (appeals court can take judicial notice of

proposed rule published in Federal Register even if the

proposed rule was not called to the attention of the trial

court); Poindexter v. United States, 777 F.2d 231, 236 (5th

Cir. 1985) (appeals court is required to take judicial notice

of information contained in agency regulations). The defendants have simply caused additional judicial work by contesting a factual issue that, according to information readily

available in the public domain, cannot be reasonably
12 Nos. 01-3422, 01-3575, 02-1398 & 02-1460

5 Because JMOL was proper, we need not address the district

court’s alternative holding that Denius is entitled to a new trial.

disputed. The district court was therefore right to grant

JMOL for Denius.5

B. Defendants’ Motion for JMOL

The defendants also maintain that the case should never

have gone to the jury in the first place because the district

court should have granted their motion for JMOL at the

close of evidence. They give two reasons in support of this

argument. First, they assert that Denius failed to establish

an essential element of his claim—that the constitutional

violation in question caused his injuries. See Papapetropoulous v. Milwaukee Transp. Serv., Inc., 795 F.2d 591, 595

(7th Cir. 1986). According to the defendants, in order to

prove causation, Denius had to show that he did not sign

the First Authorization specifically because he did not want

to authorize the release of his medical records. Defendants

then argue that Denius did not meet this burden because he

provided no evidence that he was concerned with medical

records in particular when he refused to sign; rather,

Denius’s testimony was simply that he found the First

Authorization objectionable because it was “an invasion of

privacy” and “too personal.” 

Denius counters that the defendants are “turn[ing]

causation on its head.” He believes that his state of mind is

completely irrelevant to the causation inquiry, so he did not

have to establish that the “medical records” aspect of the

First Authorization had any bearing on his decision not to

sign. Instead, according to Denius, all he had to prove was

that the defendants’ conduct (conditioning employment on

his signing the release form) caused his injury (loss of his

job). We disagree with this formulation. If the evidence had

shown that Denius’s refusal to sign was motivated solely
Nos. 01-3422, 01-3575, 02-1398 & 02-1460 13

by, say, personal animosity towards Dunlap, there would be

no causal link between the constitutional violation and

Denius’s dismissal. Or suppose the evidence showed that

Denius’s only concern about the form was that it required

disclosure of attorney-client communications (a claim on

which defendants are entitled to qualified immunity, see

Denius I, 209 F.3d at 955). Again in this situation, Denius

would not have proved that the defendants’ intrusion into

the confidentiality of his medical records was the cause of

his injury.

Nonetheless, even under defendant’s formulation, which

is the correct one, Denius offered enough evidence on causation to justify sending the case to the jury. Denius testified

at trial that he did not sign the First Authorization because

it was “an invasion of privacy,” “too personal,” “not necessary,” and “unconstitutional.” The defendants allege that

this testimony was “too vague” to prove causation since

“there are many aspects to the right of privacy, and they

are not interchangeable.” But on a motion for JMOL, it was

the defendants’ burden to show that no reasonable jury

could have found for Denius when reviewing the evidence

in a light most favorable to him. Bruso v. United Airlines,

Inc., 239 F.3d 848, 857 (7th Cir. 2001). Defendants did not

meet this burden. A reasonable jury could have easily inferred from Denius’s testimony that the “medical records”

aspect of the release form was at least partly what motivated his decision not to sign. Moreover, Denius also testified that he “was concerned with everything on the release

with the exception of the . . . criminal background check and

the education records” and that “as a retired military

person, [he] knew that [his] records were at the National

Personnel Records Center.” This testimony alone was sufficient to preclude granting JMOL.

The defendants also claim that the district court should

have granted Dunlap qualified immunity because a reasonable official in his position would not have known that the

First Authorization extended to medical records. As an

initial matter, we note that even if Dunlap is entitled to
14 Nos. 01-3422, 01-3575, 02-1398 & 02-1460

qualified immunity, it would not provide a complete defense

because Denius asked for injunctive and declaratory relief

in addition to money damages. Canedy v. Boardman, 91

F.3d 30, 33 (7th Cir. 1996). And in any event, qualified immunity does not apply. The defense does not protect “the

plainly incompetent or those who knowingly violate the

law.” Thompson v. Wagner, 319 F.3d 931, 935 (7th Cir.

2003) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986))

(quotations omitted). Dunlap asserts that a reasonable official in his position would not have known that the NPRC

maintained medical records, nor would a reasonable official

“necessarily have investigated every possible legal effect of

the Authorization.” We disagree. First of all, Dunlap was

the drafter of the Authorization, so we assume that he

knew (or at least should have known) what all of its terms

meant. Furthermore, we believe that a reasonable official

in Dunlap’s position would, at a minimum, have made some

effort to look into the form’s legal effect. With just minimal

investigation, Dunlap could likely have discovered that veterans’ medical records are housed at the NPRC, but he

chose not to conduct such a search. This was plainly unreasonable, so the district court was correct to deny Dunlap’s

defense of qualified immunity.

C. Injunctive Relief

The defendants’ last argument on appeal is that the

district court erred in granting Denius’s request for injunctive relief. We review the court’s decision for abuse of discretion, analyzing conclusions of law de novo and factual

determinations for clear error. Minnesota Mining & Mfg.

Co. v. Pribyl, 259 F.3d 587, 597 (7th Cir. 2001). 

The defendants claim that the Eleventh Amendment bars

injunctive relief because Denius did not prove the existence

of an ongoing or threatened violation. See Vickery v. Jones,

100 F.3d 1334, 1346 (7th Cir. 1996). The district court found

otherwise, however, concluding that there was a “real

danger” that the defendants would violate Denius’s consti-
Nos. 01-3422, 01-3575, 02-1398 & 02-1460 15

tutional rights again in the future. The court gave two reasons for its finding. First, it believed that the defendants’

conduct throughout the course of this litigation “consistently demonstrated a failure to appreciate the wrong committed.” The court specifically pointed to defense counsel’s

closing argument, which the court believed “malign[ed] the

plaintiff’s integrity,” “castigated” him, and suggested that

he should not recover “because his hands were unclean.”

But whether or not this is true, we are uncertain how relevant defense counsel’s conduct during closing argument is

to the question of how the defendants themselves are likely

to act in the future. Statements made during closing argument are, of course, not evidence. Rastafari v. Anderson,

278 F.3d 673, 690 (7th Cir. 2002). 

Nonetheless, the district court’s other reason for granting

injunctive relief was sound. The jury returned a special verdict finding that the defendants were “likely in the future

to require [Denius] to sign Authorizations for Release of

Personal Information similar to [the First and Second Authorizations] as a condition of employment.” The court

rightly held that it was bound by this determination.

Snider v. Consolidation Coal Co., 973 F.2d 555, 559 (7th

Cir. 1992). True, as the defendants point out, the evidence

supporting the jury’s finding was somewhat sparse. It was

not wholly lacking, however. For instance Thomas testified

on cross-examination that all of the signed First and

Second Authorizations, other than Denius’s, remained in

the LCP personnel files. Thomas further testified that,

other than Denius, LCP employees were never told that

they could retract their Authorizations, nor were they informed that the form had been revised to cover only criminal records. Though this testimony did not speak to

Denius’s situation directly, we conclude that it was enough

evidence, under the highly deferential standard of review

applicable to jury findings, Reynolds v. City of Chicago, 296

F.3d 524, 526-27 (7th Cir. 2002), from which a reasonable

jury could infer the existence of a threatened constitutional violation.
16 Nos. 01-3422, 01-3575, 02-1398 & 02-1460

6 Because we conclude that the injunction was proper, we need

not address Denius’s alternative argument that he is at least entitled to declaratory relief.

The defendants also maintain that the district court

abused its discretion by failing to properly weigh the traditional criteria used to determine the propriety of equitable

relief—namely (1) whether the plaintiff has succeeded on

the merits, (2) whether the plaintiff will have an adequate

remedy at law or will be irreparably harmed if the injunction is not granted, (3) whether the threatened injury to the

plaintiff outweighs the threatened harm the injunction may

inflict on the defendant, and (4) whether the injunction will

harm the public interest. Plummer v. Am. Inst. of Certified

Pub. Accountants, 97 F.3d 220, 229 (7th Cir. 1996). We find

no abuse of discretion. The district court properly weighed

the four factors and found that they justified the grant of

relief. Notably, the defendants conceded at oral argument

that they will suffer no harm whatsoever from the issuance

of the injunction.6

 

D. Damages

In his cross-appeal, Denius maintains that the district

court erred by granting the defendants’ motion for JMOL on

the issue of emotional damages. We review this issue de

novo. Bruso, 239 F.3d at 857.

The only direct evidence that Denius suffered any emotional distress was his own testimony that signing the First

Authorization “would have negated everything I stood for,”

that being out of work at age sixty “concerned” and “troubled” him, and that he was “embarrassed and humiliated”

by the circumstances in which he was fired. But when the

injured party’s own testimony is the only proof of emotional

damages, he must explain the circumstances of his injury

in reasonable detail; he cannot rely on mere conclusory

statements. Biggs v. Village of Dupo, 892 F.2d 1298, 1304
Nos. 01-3422, 01-3575, 02-1398 & 02-1460 17

(7th Cir. 1990). Thus, we have said that bare allegations by

a plaintiff that the defendant’s conduct made him “depressed,” “humiliated,” or the like are not sufficient to establish injury unless the facts underlying the case are so inherently degrading that it would be reasonable to infer that

a person would suffer emotional distress from the defendant’s action. Alston v. King, 231 F.3d 383, 388 (7th Cir.

2000); United States v. Balistrieri, 981 F.2d 916, 931-32

(7th Cir. 1992). 

Here, the circumstances surrounding Denius’s dismissal

were not so inherently humiliating. Denius relies heavily on

the fact that Dunlap called security personnel to escort him

out of the building, but Denius admitted during trial that

Dunlap was nonetheless courteous and gave him the time

to put things away, straighten his desk, and collect his belongings. Further, Denius presented no evidence that the

security personnel touched or mistreated him in any way.

There was, in short, no evidence to suggest any type of “inherently degrading conduct that would portend emotional

distress,” Alston, 231 F.3d at 388, and so Denius’s bare allegations that he was “embarrassed” and “humiliated” were

insufficient to justify sending the issue to the jury. The

court properly granted JMOL for the defendants. Cf. id. at

389 (district court erred in granting JMOL on issue of emotional damages, where plaintiff testified that his co-workers

mocked and laughed at him after defendant terminated his

job without a hearing). 

E. Attorneys’ Fees

Denius also cross-appeals from the district court’s order

awarding attorneys’ fees, claiming that the court erred in

setting the hourly rate for associate counsel J. Brian Heller

at $180 instead of $200. We review the court’s decision for

abuse of discretion. Mathur v. Bd. of Tr. of S. Ill. Univ., 317

F.3d 738, 742 (7th Cir. 2003). 
18 Nos. 01-3422, 01-3575, 02-1398 & 02-1460

When calculating attorneys’ fees, the reasonable hourly

rate is to be derived from the market rate for the services

rendered. Uphoff v. Elegant Bath, Ltd., 176 F.3d 399, 407

(7th Cir. 1999). The attorney’s actual billing rate for comparable work is “presumptively appropriate” to use as the

market rate. Id. To this end Denius submitted an affidavit

from Heller that claimed an hourly rate of $200 in the year

2001. Denius also submitted an affidavit from civil rights

attorney Patricia Benassi stating that $200 was more than

a reasonable rate for an attorney of Heller’s experience and

ability.

The district court expressed “concern” about the sufficiency of these affidavits, however. The court noted that

“there is nothing in the record to show that Mr. Heller . . .

has earned that [$200] hourly rate in other civil rights litigation. The court needs more information before it can determine Mr. Heller’s market rate. . . . The court needs to

know at what hourly rate Mr. Heller has been compensated

in the past in other civil rights matters.” Denius then submitted a supplemental affidavit from Heller, in which

Heller stated that 80-90% of his civil rights practice was

performed for and billed through the law firm of Benassi &

Benassi, P.C., and that the most recent civil rights litigation he undertook on his own occurred in January 2001

and was billed at a rate of $180 per hour. Heller explained

that “the standard rate used in that case is $180.00/hour

rather than $200/hour since the litigation is not in federal

court, and is not contingent in nature.” Denius also submitted a supplemental affidavit from Patricia Benassi

stating that, prior to 1995 and through 1999, Benassi &

Benassi billed out Heller’s services at a rate of $150 per

hour and that the “current” rate for Heller’s services was

$200 per hour.

Defendants argued that these supplemental affidavits

failed to establish that Heller was entitled to a $200 rate,

and the district court agreed, determining that $150 was

the appropriate hourly fee for services rendered before 1999

and $180 for those rendered thereafter. On appeal Denius
Nos. 01-3422, 01-3575, 02-1398 & 02-1460 19

quarrels only with this latter determination. Specifically,

he claims that the court should have used the $200 figure

for services performed after 1999 because the record

showed that 80-90% of Heller’s civil rights work was being

billed at that rate through Benassi & Benassi. We disagree

with Denius’s position. First, Patricia Benassi’s affidavit

spoke only to the “current” rate at which her firm was billing Heller’s services; it said nothing about his rate from

2000 to mid-2001 (when the affidavit was filed). And second, the only evidence regarding Heller’s rate when billing

under his own name (as he is doing here) was his own

statement that he charged $180 per hour for the civil rights

case he litigated in January 2001. The district court was

therefore well within its discretion in setting this figure as

Heller’s market rate.

Finally, Denius argues that the district court should have

awarded interest for the delay in payment of his attorneys’

fees. He did not raise this issue below, however, so it is

waived. Williams v. REP Corp., 302 F.3d 660, 666 (7th Cir.

2002).

III. CONCLUSION

For the reasons stated above, the judgment 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—5-30-03