In the
United States Court of Appeals
For the Seventh Circuit
No. 09-2434
A RCHIE R OBINSON,
Plaintiff-Appellee,
v.
C ITY OF H ARVEY, ILLINOIS,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 99 C 3696—Joan Humphrey Lefkow, Judge.
A RGUED M AY 21, 2010—D ECIDED A UGUST 6, 2010
Before E ASTERBROOK, Chief Judge, and B AUER and
T INDER, Circuit Judges.
E ASTERBROOK, Chief Judge. A jury found in 2002 that
Manuel Escalante, a police officer in Harvey, Illinois, had
shot Archie Robinson without a good reason and then
tried to frame him for possessing a gun. The jury
awarded $25,000 in compensatory damages, for which
Escalante and the City are jointly and severally liable,
and $250,000 in punitive damages, for which Escalante
2 No. 09-2434
alone is liable. (Municipalities are not subject to punitive
damages in suits under 42 U.S.C. §1983. See Newport v.
Fact Concerts, Inc., 453 U.S. 247 (1981).) In October 2004
the district court ordered Escalante and the City to pay
approximately $507,000 as attorneys’ fees under 42
U.S.C. §1988.
After a contentious post-verdict motions practice,
Robinson and Escalante reached a settlement. The City’s
attempt to obtain appellate review of the jury’s award
foundered on its failure to appeal until after the district
court had awarded attorneys’ fees. 489 F.3d 864 (7th Cir.
2007). The appeal was timely with respect to the award
of fees, which was affirmed.
The City paid the $25,000 in damages plus the $507,000
in fees and there, one would have supposed, the litiga-
tion ended. Not so. In April 2008, some 10 months after
we resolved the appeal, Robinson filed a supplemental
request for attorneys’ fees, seeking compensation (from
the City only) for legal work that had been performed
between November 1, 2002, and April 1, 2008. The work
fell into four categories: (1) Time devoted to fending
off Escalante’s post-verdict motions for relief from judg-
ment; (2) time devoted to defeating Escalante’s attempts
to stay enforcement of the judgment; (3) time devoted
to prosecuting the earlier motion (filed in August 2003)
for attorneys’ fees for work done through October 31,
2002; and (4) time devoted to the appellate proceedings
(and the supplemental fee petition itself). The City con-
ceded that Robinson is entitled to compensation for
the time needed to defend against its appeal but con-
No. 09-2434 3
tended, and the district judge agreed, that Robinson
cannot recover attorneys’ fees for his unnecessary and
unsuccessful cross-appeal. 2008 U.S. Dist. L EXIS 79662
*16–18 (N.D. Ill. Oct. 7, 2008). The court rejected the
City’s argument that a supplemental award is barred by
principles of issue or claim preclusion and awarded
Robinson an additional $277,462.
The district court’s rejection of the City’s preclusion
defense is sound; issue and claim preclusion concern
the effect of one suit on a later suit and have nothing
to do with how issues are resolved within a single case.
See Arkla Energy Resources v. Roye Realty & Developing,
Inc., 9 F.3d 855, 866 (10th Cir. 1993) (applying this prin-
ciple to supplemental awards of attorneys’ fees); Wolfe
v. New Mexico Department of Human Services, 28 F.3d
1056, 1059 (10th Cir. 1994) (same). Supplemental awards
of legal fees are common. Since a prevailing party is
entitled to collect the legal expenses incurred in ob-
taining an award of fees for success on the merits, see
Kurowski v. Krajewski, 848 F.2d 767, 777 (7th Cir. 1988), and
defending that award on appeal, see Commissioner of
INS v. Jean, 496 U.S. 154 (1990), supplemental awards
are inevitable. But timing is a more serious problem—as
is the fact that the district judge ordered the City to pay
attorneys’ fees for proceedings that concerned the
award of punitive damages against Escalante.
The first two items on Robinson’s supplemental
bill concern legal work that affected Robinson’s rights vis-
à-vis Escalante. There is no reason why the City should
have to pay for that work. The district judge observed
4 No. 09-2434
that, when multiple defendants are jointly and severally
liable for an award of damages, they are also jointly and
severally liable for attorneys’ fees under §1988. That’s
true enough but not controlling, since the City is not
jointly liable with Escalante for punitive damages. Be-
cause the City was going to pay the $25,000 compensa-
tory award (if it survived the appeal), indeed is re-
quired by Illinois law to do so, 745 ILCS 10/9-102, inde-
pendent of the fact that Robinson was bound to turn
to the deeper pocket, Escalante’s post-judgment mo-
tions concerned the punitive award, for which the City
did not bear any responsibility. Any fees for dealing
with those post-judgment motions therefore are on
Escalante’s tab, not the City’s, and as Escalante has
settled with Robinson it is doubly inappropriate to
shift these expenses to the City.
The district court did not suggest that any of the legal
work performed in categories 1 and 2 concerned the
City’s liability for compensatory damages, as opposed to
Escalante’s liability for punitive damages. And we need
not remand for consideration of the possibility that the
legal time was devoted in part to the City’s liability and
in part to Escalante’s, because there is a second reason
why Robinson is not entitled to a supplemental award
of fees for this legal work. Recall the dates: Jury
verdict in July 2002; motion for attorneys’ fees filed in
August 2003, covering work done before November 1,
2002; award of fees in October 2004; appeal decided in
June 2007; additional motion for fees filed in April 2008,
covering work done during November 2002 through
April 1, 2008. This implies that, as Robinson sees
No. 09-2434 5
things, the fees awarded in October 2004 were just part
of his entitlement; other post-verdict, but pre-award
(indeed, pre-application) legal work remained to be
compensated. Yet the premise of the City’s appeal (and
of our decision) was that the $507,000 awarded in
October 2004 was the full award of attorneys’ fees.
Robinson told this court, in his docketing statement
and brief, that the award represented a final decision on
the fees question. If he had said that the district court’s
order of October 2004 was just a waystation on the path
to a calculation of what the City really owed, this court
would have dismissed the appeal and ordered the
parties to wait until the district judge was done toting
up fees. Only after the full award has been made can a
court of appeals sensibly apply the lodestar method
prescribed by Perdue v. Kenny A., 130 S. Ct. 1662 (2010). (We
thought in 2007 that an award of $500,000 was not
disproportionate to the relief; the disposition might
have been otherwise had the panel known that the full
award was closer to $800,000.)
Awards of attorneys’ fees are appealable separately
from the merits, see White v. New Hampshire Department of
Employment Security, 455 U.S. 445 (1982), but apart from
situations within the scope of the collateral-order
doctrine, such an award, like a decision on the merits,
may be appealed only when it represents a final decision.
An award for part of the legal work in the district court
is no more “final” than would be an award of damages
for income lost in one year, while the district court
had under advisement a motion to calculate the loss for
6 No. 09-2434
a second year. Cf. Liberty Mutual Insurance Co. v. Wetzel,
424 U.S. 737 (1976). The only reason we entertained the
first appeal in this case is that Robinson himself assured
the court that the award of fees was final. Our decision
necessarily held that it is indeed final. That is the law of
the case, which prevents Robinson from attempting to
benefit from an inconsistent position later on. (Principles
of judicial estoppel would have the same effect. See
New Hampshire v. Maine, 532 U.S. 742, 749–51 (2001).)
Legal work performed in seeking the award of fees, and
defending them on appeal, constitutes a separate post-
decision category that is not barred by our conclusion
that the 2004 award was “final.” The problem with respect
to this legal work is time. Robinson’s lawyers knew
by October 2004 how many hours they had devoted to
obtaining the award in the district court. They knew by
June 2007 (and likely December 2006, when the appeal
was argued) how many hours they had devoted to de-
fending that award in this court. Yet Robinson did not
seek compensation for this legal work until April 2008.
According to Fed. R. Civ. P. 54(d)(2)(B)(i), a litigant has
14 days from entry of judgment to seek an award of fees,
unless a statute or court order provides otherwise. No
statute provides otherwise for fees under §1988. Local
Rule 54.3(b) of the Northern District of Illinois does
provide otherwise: it extends the time to 90 days. But
Robinson took more than 1,250 days (measured from
the award of fees in October 2004) or 275 days (measured
from the appellate decision in June 2007).
Robinson tries to excuse his delay by pointing to Local
Rule 54.3(d), which requires the parties to meet and
No. 09-2434 7
attempt to resolve differences about attorneys’ fees
before presenting a motion to the court. Yet this obliga-
tion is why Rule 54.3(b) extends the time from 14 days
to 90, not a reason to take more than 90 days. Robinson
does not contend that his lawyers attempted to fulfil
the meet-and-negotiate requirement within the 90 days
but that the City dragged the process out for years. Nor
does Robinson contend that, as part of negotiations,
the City promised not to invoke the time limit of
Rule 54.3(b). Robinson did not ask the district judge for
an extension, and when granting Robinson’s belated
motion for a supplemental award the district judge
did not mention the fact that the motion had been
filed long after the periods set by Rule 54(d)(2)(B)(i)
and Local Rule 54.3(b). Instead Robinson effectively
contends that there are no time limits for motions
seeking attorneys’ fees. He cites Gautreaux v. Chicago, 690
F.2d 601 (7th Cir. 1982), which applied the doctrine of
laches to these motions. But Rule 54(d)(2)(B)(i) and Local
Rule 54.3 were adopted after Gautreaux and supersede
its approach. We are not disposed to undermine time
limits in the national and local rules. These limits
prevent what has occurred here: The revival of a case
that the defendant supposed had long been closed.
Instead of either following the local rule or asking for
an extension, Robinson waited until the time had
expired and then asked the district judge to “set a sched-
ule” for filing—as if there were no applicable rule. The
judge gave him another seven months, until April 2008,
but did not explain why, let alone find that there was
good cause for either the initial delay in applying or
8 No. 09-2434
the length of the extension. Nor did the district judge
invite a response from the City before setting this
schedule, making it hard to see how the City can be said
to have forfeited its opportunity to protest: it was not
afforded an opportunity. Judges need good reasons
for permitting litigants to exceed deadlines. See Pioneer
Investment Services Co. v. Brunswick Associates Ltd. Partner-
ship, 507 U.S. 380 (1993). The only reason Robinson has
ever given—the need to consult with the City before
filing—is unavailing, as we have already explained.
Litigation must have its end. The supplemental award
of attorneys’ fees is
REVERSED .
8-6-10