In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 02-3981, 02-3982

ALLIANCE TO END REPRESSION, et al.,

Plaintiffs-Appellees/Cross-Appellants,

v.

CITY OF CHICAGO,

Defendant-Appellant/Cross-Appellee.

____________

Appeals from the United States District Court

for the Northern District of Illinois, Eastern Division.

Nos. 74 C 3268, 74 C 3295—Joan B. Gottschall, Judge.

____________

ARGUED DECEMBER 11, 2003—DECIDED JANUARY 28, 2004

____________

Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.

POSNER, Circuit Judge. In 1974 and 1975, two classes of

plaintiffs, represented by the Alliance to End Repression

and the American Civil Liberties Union respectively,

brought suit under 42 U.S.C. § 1983 against the United

States and the City of Chicago. The suit charged that the

FBI’s Chicago office and the Chicago Police Department’s

intelligence division were violating the class members’ First

Amendment rights by overly intrusive and improperly mo-
2 Nos. 02-3981, 02-3982

tivated investigations of alleged subversive activities. In

1981, before a trial could be held, the defendants agreed to

a consent decree, which was approved by the district court

the following year, imposing detailed restrictions on the

defendants’ investigative authority. 561 F. Supp. 537 (N.D.

Ill. 1982). The decree did not, however, vest monitoring or

other responsibilities in the plaintiffs or their lawyers.

In 1997, long after this court had interpreted the decree as

imposing fewer restrictions on the FBI than the district court

had thought it did, 742 F.2d 1007 (7th Cir. 1984) (en banc),

the City asked the district court to modify it to make the

restrictions on the City less onerous. The district court refused even though the judge who had approved the decree

in the first place had said it was so strict that she wouldn’t

have awarded the plaintiffs such draconian relief even if

they had proved all their allegations in a trial. 561 F. Supp.

at 551.

The City appealed from the refusal to modify the decree.

It pointed out that it had complied with the decree throughout the entire period of almost two decades in which it had

been in force, that during this period the Supreme Court

and this court had become ever more emphatic that the federal judiciary must endeavor to return the control of local

governmental activities to local government at the earliest

possible opportunity compatible with achievement of the

objectives of the decree that transferred that control to the

federal courts, and that the culture of law enforcement in

Chicago and the character of the threats to public safety by

ideologically motivated criminals had so far changed as to

make much of the decree obsolete. We agreed with the City

and ordered that its motion be granted in its entirety. 237

F.3d 799 (7th Cir. 2001). We pointed out that the decree was

frustrating the efforts of the police to cope with the problems of today because earlier generations of police had
Nos. 02-3981, 02-3982 3

coped improperly with the problems of yesterday. Because

of what the police department’s “Red Squad” had done

many years ago, the Chicago police would, unless the decree was modified, labor indefinitely under severe handicaps from which other police forces were free. Under the

modified decree, which forbids investigations intended to

impede freedom of expression and requires the City to

commission independent periodic audits to determine the

City’s compliance, First Amendment rights would, we

held, be secure, while under the original decree the public

safety was insecure and the prerogatives of local government scorned. And this was before the terrorist attacks on

the United States of September 11, 2001, brought about a

renewed appreciation of the weight of security considerations in determining the point of balance between safety

and liberty that we call our civil liberties.

All this is by way of background to the present appeal

(and cross-appeal, in which the ACLU, however, does not

join), which is by the City from an award by the district

court to the class representatives of more than $1 million in

attorneys’ fees. That is on top of at least $450,000 in fees

awarded (and paid) for legal services rendered earlier in the

proceedings; the true figure is undoubtedly higher but the

parties’ records are incomplete, doubtless because of the

great age of the case.

The $1 million award is for the following legal services

rendered between 1994 and 2001: two proceedings for contempt of the decree, which failed; the opposition, just described, which also failed, to the modification of the decree;

and efforts, which also bore no fruit so far as anyone can

say, to monitor the City’s compliance with the decree—no

fruit, that is, except the failed contempt proceedings. The

order is appealable now because the activities for which the

fees were awarded are complete in a sense that will become

clearer in our discussion of the merits.
4 Nos. 02-3981, 02-3982

The awarding of attorneys’ fees under 42 U.S.C. § 1983

is governed by 42 U.S.C. § 1988(b), which authorizes such

awards only to the prevailing party. See Buckhannon Board

& Care Home, Inc. v. West Virginia Dept. of Health & Human

Resources, 532 U.S. 598 (2001). The plaintiffs argue that by

virtue of obtaining the consent decree in the first place they

became the prevailing party for the entire life of the decree

(which contains no sunset provision)—indeed, beyond, for

they contend that even if the decree had been dissolved

in 2001, rather than just being modified, they would be entitled to the legal fees they incurred in opposing that result,

provided only that the fees were reasonable in amount

and the opposition to dissolution not frivolous. They base

this claim primarily on the Supreme Court’s decision in

Pennsylvania v. Delaware Valley Citizens’ Council for Clean

Air, 478 U.S. 546, 557-61 (1986), which allowed the reimbursement of attorneys’ fees for postjudgment proceedings

brought by the plaintiffs’ lawyers. But those postjudgment

proceedings were at least partly successful. These plaintiffs’

postjudgment proceedings were not. They argue that they

shouldn’t be penalized for failure because they were dutybound to oppose the modification of the decree, to monitor

compliance with the decree before and after it was modified, and to bring contempt proceedings against anyone

who they thought might be violating it. In support of the argument they cite our decision in Ustrak v. Fairman, 851

F.2d 983, 990 (7th Cir. 1988), where we said that the plaintiff, having won a judgment in the district court, “had no

choice” but to incur attorneys’ fees to defend the judgment

in our court. But in that case, too, the plaintiff was successful—not entirely, but enough to make him the prevailing

party. Had he lost on appeal he would not have been entitled to any award of fees.

In only two classes of case governed by section 1988(b)

or similar fee-shifting provisions (see Hensley v. Eckerhart,
Nos. 02-3981, 02-3982 5

461 U.S. 424, 433 n. 7 (1983)) has a plaintiff who obtained no

relief in postdecree proceedings nevertheless been awarded

fees for those proceedings. The first class consists of cases

in which the consent decree itself authorized the court to

award fees to the plaintiff that would be incurred in disputes brought to the court in the wake of the decree. Plyler

v Evatt, 902 F.2d 273, 276 n. 1, 279 n. 4 (4th Cir. 1990); Turner

v. Orr, 785 F.2d 1498, 1500 nn. 2, 3 (11th Cir. 1986). The

contractual entitlement (there is none in our case) supplemented or superseded the statutory one. Granted, Plyler

contains language suggesting that the case would probably

have been decided the same way without benefit of the

decretal provision. Similar dicta can be found in other cases

as well, such as Cody v. Hillard, 304 F.3d 767, 773 (8th Cir.

2002); San Francisco NAACP v. San Francisco Unified School

District, 284 F.3d 1163, 1166 (9th Cir. 2002), and Jenkins v.

Missouri, 127 F.3d 709, 716-19 (8th Cir. 1997). But partly by

its approving reference (902 F.2d at 281) to our decision in

Ustrak, where, to repeat, the plaintiff had some success, and

partly by its observing that the plaintiffs had merely not

been “successful in detail,” id., the court in Plyler indicated

that it thought the plaintiffs’ efforts had contributed to

compliance with the decree, and thus had not been fruitless

after all. Indeed, the court noted that the defendant hadn’t

even appealed part of the district court’s order in favor of

the plaintiffs. Id. at 276, 279. This statement may have been

erroneous, see Plyler v. Evatt, 846 F.2d 208, 210, 215-16 (4th

Cir. 1988) (an earlier round, in which the court vacated the

district court’s order in its entirety), but it shows the court’s

thinking.

And likewise in Turner the court made clear its belief

that the postdecree efforts had been valuable in inducing

compliance with the decree, even though they, too, had

failed in detail. 785 F.2d at 1504; cf. Bond v. Stanton, 630 F.2d

1231, 1233-34 (7th Cir. 1980); Miller v. Carson, 628 F.2d 346,
6 Nos. 02-3981, 02-3982

347-49 (5th Cir. 1980). These cases can be thought of as extensions of the principle that a plaintiff is not to be denied

full attorneys’ fees merely because he lost some interim

rulings en route to ultimate success. Jaffee v. Redmond, 142

F.3d 409, 414 (7th Cir. 1998); Jenkins v. Missouri, supra, 127

F.3d at 714-16. Such setbacks are well-nigh inevitable, and a

lawyer who nevertheless was sedulous to avoid them might

lose a good case through an excess of caution. Likewise in

postdecree litigation there may be inevitable setbacks en

route to victory, partial or complete. But in the present case

there has for a decade now been nothing but loss—a million

dollars’ worth of legal services poured down the drain.

There was not even a disappointing partial success, as there

would have been if the City had moved to dissolve the

decree and the plaintiffs had fended off dissolution yet had

not averted a substantial modification.

In the second and more numerous class of cases, attorneys’ fees incurred in efforts to monitor compliance with the

consent decree are said or assumed to be compensable even

if no postjudgment order results from the efforts. Eirhart v.

Libbey-Owens-Ford Co., 996 F.2d 846, 850-51 (7th Cir. 1993);

San Francisco NAACP v. San Francisco Unified School District,

supra, 284 F.3d at 1166; Joseph A. v. New Mexico Dept. of

Human Services, 28 F.3d 1056, 1059-61 (10th Cir. 1994); Keith

v. Volpe, 833 F.2d 850, 855-57 (9th Cir. 1987); Garrity v.

Sununu, 752 F.2d 727, 738-39 (1st Cir. 1984); Northcross v.

Board of Education, 611 F.2d 624, 637 (6th Cir. 1979). These

cases are best explained on a deterrence rationale: careful

monitoring reduces the likelihood that the decree will be

violated. The rationale is attenuated in a case such as this in

which someone else—not the plaintiff—is the appointed

monitor. More fundamentally, the cases we have cited—all

of which except San Francisco NAACP precede Buckhannon

Board & Care Home, Inc. v. West Virginia Dept. of Health &

Human Resources, supra, and in San Francisco NAACP no fees
Nos. 02-3981, 02-3982 7

were in fact awarded—are inconsistent with the Supreme

Court’s rejection in Buckhannon of the “catalyst” theory of

fee-shifting. As may also be such cases as Plyler, Turner,

Bond, and Miller, insofar as they—though Plyler and Turner

only in dictum, for remember the contractual fee-shifting

provisions in those cases—reward lawyers for promoting

compliance with the original decree rather than for obtaining supplementary court-ordered relief.

The catalyst idea was that if a lawyer’s effort produces a

good result albeit not an actual judgment or other judicial

relief, it should be compensable. The Court described it as

the idea that a fee-shifting statute “allows an award where

there is no judicially sanctioned change in the legal relationship of the parties,” 532 U.S. at 605—and rejected it. Monitoring may reduce the incidence of violations of a decree,

but if it does not produce a judgment or order, then under

the rule of Buckhannon it is not compensable.

The plaintiffs are left to argue that the fact that the failed

proceedings were offshoots of a pending case rather than

entirely free-standing lawsuits should make a difference.

Some cases have suggested that if postjudgment proceedings are “inextricably intertwined” with the original decree,

in the sense of involving the same facts and legal issues,

they can be considered part of the original case in which the

plaintiff prevailed. Cody v. Hillard, supra, 304 F.3d at 773;

Arvinger v. Mayor & City Council of Baltimore, 31 F.3d 196,

200-02 (4th Cir. 1994). That is a questionable extension of the

sound and settled principle that attorneys’ fees incurred in

interim defeats en route to a successful conclusion are compensable because, as we have noted, such skirmishes are

indispensable inputs into a successful conclusion of litigation. Time, however, runs in only one direction. Interim

defeats can contribute to ultimate victory, but failed efforts

to follow up that victory contribute to nothing.
8 Nos. 02-3981, 02-3982

In any event, the postjudgment proceedings here,

coming as they did so many years after the consent decree

went into effect, are clearly separable from the proceeding

that led up to the entry of the decree. Just as a bankruptcy

proceeding provides a venue and procedural framework for

prosecuting discrete claims (“adversary proceedings”) by

and against the debtor—for example, a tort claim by the

debtor that were he not in bankruptcy would be prosecuted

as a civil suit in state court—so a consent decree will often,

and here does, provide a venue and procedural framework

for prosecuting discrete claims. For example, persons

complaining of violations of the Shakman decree (actually

decrees, Shakman v. Democratic Organization of Cook County,

481 F. Supp. 1315, 1356-59 (N.D. Ill. 1979), vacated under the

name Shakman v. Dunne, 829 F.2d 1387 (7th Cir. 1987); 569 F.

Supp. 177, 183-207 (N.D. Ill. 1983)), which limits patronage

practices in employment by the City of Chicago, litigate the

violations as contempts of court, see Smith v. City of Chicago,

769 F.2d 408, 411-13 (7th Cir. 1985), rather than having to

prosecute them as independent suits. That procedural shortcut does not earn a legal fee paid by the City if the claim

fails. Ancillary or offshoot proceedings in class actions (such

as contempt proceedings under the Shakman decree), or in

bankruptcy, are treated by the law as if they were independent, free-standing proceedings, see, e.g., In re James

Wilson Associates, 965 F.2d 160, 166-67 (7th Cir. 1992) (bankruptcy), with the decisions ending the proceedings thus

being treated as appealable final decisions. That is one

reason why the fee awards that the district court ordered

are appealable now rather than only after the decree is dissolved, cf. Budinich v. Becton Dickinson & Co., 486 U.S. 196,

201-03 (1988), if it is ever dissolved—a matter to which we

return at the end of this opinion. Another reason for

allowing an immediate appeal is that a decree might never

be dissolved, so that to treat fee awards as interlocutory
Nos. 02-3981, 02-3982 9

might defer appeal to the end of time. Bogard v. Wright, 159

F.3d 1060, 1063 (7th Cir. 1998).

We do not think that our plaintiffs would argue that if a

member of the class went to a lawyer who does not represent the class, and that lawyer filed a motion for contempt

on behalf of his client and lost, the lawyer would be entitled

to a fee, on the ground that the class member was a prevailing party by virtue of the consent decree. They would

attempt to distinguish the case on the ground that the

lawyers who negotiated the decree, or their successors (it

has been, after all, more than two decades since the decree

was entered), were “duty-bound” to enforce the decree—to

monitor it, to file contempt proceedings on the basis of information obtained through the monitoring or otherwise,

and to oppose any effort to lift or alter the decree. The

attempt would fail. The decree imposes no such duties; nor

does the law. The original decree contained provisions for

audits and other methods of assuring compliance with the

decree that were to be administered by the Chicago Police

Board, while the modified decree requires annual audits by

the Chicago Police Department and one audit to be performed by a national independent public accounting firm

within five years. Neither the original nor the modified

decree imposes on these lawyers any duty of operating the

compliance machinery. They could have walked away from

the case as soon as the consent decree was approved confident that a compliance machinery in which they had been

given no role had been established. They would not have

been letting down the class had they done so.

This brings out an important difference between this case

and Plyler and Turner. Consider why the decrees in those

cases but not in this one authorized the award of attorneys’

fees for postdecree litigation without requiring that the

plaintiffs prevail in that litigation. The answer is that they
10 Nos. 02-3981, 02-3982

must have been expected to be the enforcers of the decree.

This is explicit in Turner: “the consent judgment provided

that the representatives of the plaintiff class would establish

the PMC [Plaintiffs’ Monitoring Committee, the entity seeking the award of fees] to, as its name suggests, monitor and

ensure the continuing enforcement of the consent judgment.” 785 F.2d at 1500. The present decree contains no

contractual attorneys’ fees provision because, rather than

the lawyers for the class being the appointed enforcers of

compliance with the degree, a public body, the Chicago

Police Board, was given that task. We are mindful that some

cases have authorized compensation for piggyback monitoring of the type involved in this case, e.g., Duran v.

Carruthers, 885 F.2d 1492, 1495-97 (10th Cir. 1989); Keith v.

Volpe, supra, 833 F.2d at 857-58, but they do not survive

Buckhannon.

We are not suggesting that the lawyers for the class had to

walk away from the decree once it was entered. But they

could not appropriate for themselves a guaranteed lifetime

income by bringing and losing a series of actions to enforce

the decree and charging the expense to the City and thus to

the taxpayers. The class-action device is not intended to be

a lawyers’ gravy train. The law does not reward lawyers for

losing cases, or reimburse them for a prefiling investigation

(which is the character of the plaintiffs’ monitoring of compliance with the decree) that leads to the filing of a losing

suit. The plaintiffs sue and lose, the City defends and

wins—but, we are told, the City is to pay its own expenses

plus the plaintiffs’. We do not see the sense of that. The

plaintiffs argue that unless they are reimbursed when they

lose, their incentive to sue will be diminished because there

is always a danger of losing a suit. Yes, and if section 1988

said that losing plaintiffs were entitled to awards of attorneys’ fees, they would have a good argument.
Nos. 02-3981, 02-3982 11

Their strongest claim is to fees for defending the decree

against the modification sought by the City. It is strongest

because they were responding rather than initiating and because modification is perhaps not as readily conceptualized

as a separate suit adventitiously embedded in the underlying class action as is a proceeding for contempt or what we

have characterized as a prefiling investigation. But we reject

the claim for three reasons. First, we have conceptualized

postdecree litigation, including collection litigation, broadly

as a discrete phase analogous to a free-standing suit.

Resolution Trust Corp. v. Ruggiero, 994 F.2d 1221, 1224-25 (7th

Cir. 1993); King v. Ionization International, Inc., 825 F.2d 1180,

1184-85 (7th Cir. 1987); see Bogard v. Wright, supra, 159 F.3d

at 1062-63; In re Joint Eastern & Southern Districts Asbestos

Litigation, 22 F.3d 755, 760-65 (7th Cir. 1994). This does not

mean that every procedural order that follows the entry of

a consent decree or other judgment requiring continuing

supervision is immediately appealable. Bogard v. Wright,

supra, 159 F.3d at 1062-63; compare SEC v. Suter, 832 F.2d

988, 990 (7th Cir. 1987). That would lead to an unmanageable proliferation of appeals. But orders modifying or

refusing to modify injunctions are appealable immediately,

28 U.S.C. § 1292(a)(1), and that principle supports treating

a proceeding to modify a consent decree as a discrete phase

of an otherwise open-ended proceeding.

Second, as we have noted already, the plaintiffs had no

duty—statutory, contractual, or ethical—to oppose modification. Third, and further demonstrating the absence of

even an ethical duty to oppose their opposition, verged on

the unreasonable. The decree had been in force for 15 years

when the City asked that it be modified.

If not limited to reasonable and necessary implementations of federal law, remedies outlined in consent decrees involving state [or, we add, local] officeholders
12 Nos. 02-3981, 02-3982

may improperly deprive future officials of their designated legislative and executive powers. They may also

lead to federal court oversight of state programs for

long periods of time even absent an ongoing violation

of federal law. . . . Rule 60(b)(5) allows a party to move

for relief if “it is no longer equitable that the judgment

should have prospective application.”. . . In Rufo v.

Inmates of Suffolk County Jail, 502 U.S. 367 (1992), the

Court explored the application of the Rule to consent

decrees involving institutional reform. The Court noted

that district courts should apply a “flexible standard” to

the modification of consent decrees when a significant

change in facts or law warrants their amendment. Id., at

393.

Frew v. Hawkins, No. 02-628, 2004 WL 57266, at *7 (U.S. Jan.

14, 2004). In the present case, the circumstances out of which

the class action suit had arisen had changed dramatically

when modification was sought. The decree in its original

form had accomplished its purpose and had become

obsolete. There would have been no ignominy in the

plaintiffs’ acceding to the modification. They might have

breathed a sigh of relief, since if the City had asked that the

decree be dissolved, it probably would have been. The

plaintiffs’ opposition to modification gained the class

nothing. Section 1988 does not reward failure. The contrast

with Plyler is sharp, where the court described “the position

taken” by the plaintiffs as “essential to the preservation of

the integrity of the consent decree as a whole.” 902 F.2d at

281.

Another point and we are done. The fees awarded in this

case are for work dating back to 1994, a dozen years after

the decree had been entered. This suggests the unwisdom

of “conduct,” or “regulatory,” decrees (that is, equitable

decrees that do not merely tell the defendant not to do or

to stop doing something, but instead regulate his behavior
Nos. 02-3981, 02-3982 13

and so impose a continuing duty of judicial supervision)

that contain no sunset provision. Beginning in the Clinton

Administration and continuing in the present

Administration, the Justice Department and the Federal

Trade Commission have both decided to include sunset

provisions in their regulatory antitrust decrees. U.S. Dept.

of Justice, Antitrust Division, Antitrust Division Manual ch.

4, p. 55 (3d ed. 1998); Federal Trade Commission, Final

Rule, “Duration of Existing Competition and Consumer

Protection Orders,” 60 Fed. Reg. 58514, 58515 (Nov. 28,

1995). The absence of such a provision from the decree involved in the present case is, in retrospect, a considerable

defect. It has meant that the plaintiffs have been encouraged

to pursue enforcement efforts bound to fail because the decree, a response to the turmoil of the Vietnam War era now

almost forgotten, is merely a relic.

The modified decree has a quasi-sunset provision. It

provides that upon the completion of the independent audit

that the modified decree orders but in any event no later

than 2006, the district judge is to consider whether to

dissolve the decree. We urge expedited completion of the

audit, to clear the way to a prompt consideration of whether

the decree has indeed outlived its usefulness, as in People

Who Care v. Rockford Board of Education, 171 F.3d 1083, 1090-

91 (7th Cir. 1999); 246 F.3d 1073 (7th Cir. 2001). As the

Supreme Court reminded us just weeks ago, “The federal

court must exercise its equitable powers to ensure that when

the objects of the decree have been attained, responsibility

for discharging the State’s obligations is returned promptly

to the State and its officials.” Frew v. Hawkins, supra, at *7.

The fee award is reversed. The plaintiffs are entitled to no

fees for the legal services rendered during the period in

issue, and a fortiori the Alliance is not entitled to the additional half million dollars sought in its cross-appeal.

REVERSED.
14 Nos. 02-3981, 02-3982

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—1-28-04