Johnson v. City of Tulsa

F IL E D
United States Court of Appeals
Tenth Circuit
PUBLISH
June 14, 2007
U N IT E D ST A T E S C O U R T O F A PP E A L S
Elisabeth A. Shumaker
Clerk of Court
T E N T H C IR C U IT

R OY C. JO H N SO N ; M A RK A .
M O O RE; D WIG H T E. JA CK SON;
STEVEN L. GIBBS; DEBORAH J.
DAN IELS-FLEAK; DEBBIE R.
CR ISP; DEBRA D. DICK EN S;
TA M M A RA M C KIN N EY -O LDEN;
R UFU S E. N EWSO M E; TY RO NE D.
LY NN; M ARV IN BLADES;
W ALTER E. BU SBY, JR.; DERREK
L. LEW IS; R AY D . N ELSO N ;
CO RN ELIUS D. FINLEY ; GA RY L.
PITTS; ALB ER T L. Y O U N G,

Plaintiffs - Appellants,

v. No. 05-5064

C ITY O F TU LSA , O K LA H O M A;
LO D G E 93 FR ATER NA L O RDER OF
PO LICE, LODGE #93,

Defendants - Appellees.

A PPE A L FR O M T H E U N IT ED ST A T ES D IST R IC T C O U R T
FO R T H E N O R T H E R N D IST R IC T O F O K L A H O M A
(D .C . N O . 94-C V -39-T C K -FH M )

Louis W . Bullock (Robert M . Blakemore with him on the brief), of M iller, Keffer
& Bullock, P.C., Tulsa, Oklahoma, for Plaintiffs - Appellants.

Joel L. W ohlgemuth (David R. Ross with him on the brief), of Norman
W ohlgemuth Chandler & Dow dell, Tulsa, Oklahoma, (Larry V. Simmons, Tulsa
City Attorney’s Office, Tulsa, Oklahoma, with him on the brief), for Defendants -
Appellees.

Before H A R T Z, E B E L, and O ’B R IE N , Circuit Judges.

H A R T Z, Circuit Judge.

The question presented on appeal is whether a prevailing party in a class-

action civil-rights lawsuit is entitled to attorney fees for post-consent-decree

efforts that resulted in no court order or judgment. The district court held that

such a party is not. We hold that attorney fees may be awarded for efforts to

preserve the fruits of the decree. W hen, as in this case, the consent decree

establishes mechanisms for ensuring proper treatment of class members, attorney

fees are compensable for reasonable efforts to ensure that those mechanisms are

properly functioning. W e therefore reverse and remand for further proceedings.

I. BACKGROUND

In 1994 Roy Johnson, a Tulsa police officer, filed a complaint against the

City of Tulsa (City) alleging that it had discriminated on the basis of race in

employment practices. In 1998 the district court certified the case as a class

action with a number of named plaintiffs. The class, consisting of all current and

future African-American officers of the Tulsa Police Department (TPD ), asserted

that the City had engaged in various civil-rights violations under 42 U.S.C.

§§ 1981, 1983, and Title VII, 42 U.S.C. § 2000e et seq. The Fraternal Order of

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Police (FOP) w as granted leave to intervene as a defendant.

After extensive litigation the parties entered into a consent decree (the

Decree) that was approved by the court on M ay 12, 2003. The Decree is a lengthy

document w ith a number of provisions.

A. T he D ecree

1. C omm unity R elations

Some provisions of the Decree appear designed more to help the

comm unity than the members of the plaintiff class. Section 2 of the Decree

requires the City to apply for accreditation by the Commission on Accreditation

for Law Enforcement Agencies, Inc. (CALEA), whose purpose is “to develop a

set of law enforcement standards; and to establish and administer an accreditation

process through which law enforcement agencies could demonstrate voluntarily

that they meet professionally-recognized criteria for excellence in management

and service delivery.” R. Vol. III at 328. The City must continue to meet

CALEA standards and reapply for accreditation every three years.

Likew ise, § 12 requires the City to review its training curriculum to ensure

that the “training supports the objectives of the Court’s Decree to unify the

Department and the Community, ” id. at 337–38, and to prepare a report of its

findings and “the steps taken to implement them, ” id. at 338. Section 16

prohibits racial bias in policing and requires the City to adopt and implement

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policies promoting cooperation between police officers and citizens. And § 17

requires the City to implement policies to create a partnership between the TPD

and members of the community.

2. A ntidiscrim ination Provisions

Other Decree provisions forbid discrimination in hiring, promotion, and

police operations, and require specific procedures to give officers a fair

opportunity for advancement. Section 5 1 sets out the process for making

1
The full text of the relevant provisions of § 5 is:
5.1 For the purposes of this Consent Decree, specialty assignments shall
be defined as all assignments other than those that are bid under the
current bid process, and the position of FOP president. All specialty
assignments shall be made on the basis of merit and fitness.

5.2 The Department has adopted a process for making specialty
assignments which provides for the posting in each division and upon
the City’s intranet all openings in specialty assignments. These
postings are to include but are not limited to the specific assignment,
the job description, minimum qualifications of that assignment and
preferred qualifications. This process shall continue.

5.4. In each division, the M ajor shall be charged with accepting all
applications for specialty assignments and for making
recommendations to the Deputy Chief. The Deputy Chief shall
forward the M ajor’s recommendation to the Chief, with the Deputy
Chief’s own recommendation to approve or reject the M ajor’s
recommendation. All applicants shall be notified of the final
decision.

5.5 A policy shall be adopted and implemented prohibiting those in the
chain of command of positions being filled from directly or indirectly
recruiting persons to apply for a specialty assignment other than
through the announcement provided in Paragraph 5.2. Should no one
who is qualified apply for an assignment during the period open for

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specialty assignments (assignments that are not bid under the regular bid process)

within the TPD. Subsection 5.1 requires that “[a]ll specialty assignments . . . be

made on the basis of merit and fitness,” and § 5.2 requires that the TPD post

specialty-assignment vacancies and that the posting include information about the

position such as the “assignment, the job description, minimum qualifications of

that assignment and preferred qualifications.” Id. at 331–32. Subsection 5.4

specifies that the M ajor shall accept applications and make a recommendation for

each position to the Deputy Chief, who will then forward that recommendation

and his or her own recommendation to the Chief of Police for a final decision.

All applicants must be notified of the final decision. Subsection 5.5 requires the

TPD to adopt and implement a policy “prohibiting those in the chain of command

of positions being filled from directly or indirectly recruiting persons to apply for

submitting applications, a period which shall be no less than three
weeks, the chain of command or others may then take steps to secure
qualified persons to serve in the open position, including actively
recruiting qualified persons within the Department.

5.6 The established minimal requirements for all positions shall be
review ed by the Department to assure that those requirements
directly relate to the requirements of the position.

5.7 W ith the following exception, the established minimum
qualifications for positions shall not be waived. If no one who meets
the minimum qualifications for an open specialty assignment applies
for that assignment, the Department may open the position to all
applicants and select the most qualified applicant for the position.
R. Vol. III at 331–33.

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a specialty assignment other than through” the new announcement procedure,

unless no qualified person applies for the position during the three weeks

following the posting. Id. at 332. Subsection 5.6 states that the minimum

requirements for each specialty assignment must directly relate to the

requirements of the position, and § 5.7 provides that the TPD may not open the

position to all applicants unless no one meets those minimum qualifications.

Section 6, which addresses recruiting, provides that “all hiring shall be

based on merit and fitness.” Id. at 334. The TPD must establish a recruiting task

force to evaluate and develop strategies for recruiting, including the recruitment

of women and minorities. To “attract and retain applicants,” id., the TPD must

offer temporary employment opportunities to those accepted to the police

academy. Section 7 states that promotions must be based on merit and fitness.

Section 9 requires the City to ensure “that all supervisors enjoy all of the rights

and privileges which normally accompany” their rank, id. at 336. (This provision

is apparently a response to allegations that African-American supervisors did not

receive proper deference from subordinates). Section 13 2 requires the City to

2
The full text of the relevant parts of § 13 is:
13.1 The City shall adopt and implement a policy consistent with First
Amendment law which forbids all forms of retaliation directed at any
officer or civilian raising matters of public concern, including but not
limited to, claims of racial, gender, religious, or national origin
discrimination or other rights conferred by the Constitution and law s
of the United States, the Constitution and laws of the State of

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“adopt and implement a policy” forbidding retaliation “directed at any officer or

civilian raising matters of public concern, including but not limited to, claims of

racial, gender, religious, or national origin discrimination.” Id. at 339. And § 14

requires the City to adopt a policy describing the obligation of officers to provide

back-up support for other officers and to investigate complaints of backing

failures.

3. D ata-C ollection Provisions

Two Decree provisions relate to data necessary to monitor compliance with

the Decree’s requirements. Section 3 requires the TPD to maintain a data-

collection system that tracks information on each officer, including race, gender,

assignments, training, performance ratings, complaints, discipline, traffic

Oklahoma, or this D ecree. The right to be free from retaliation shall
include those who assert such matters on behalf of others. It shall
not include protection for those who raise issues of personal interest.
The policy shall further forbid any form of retaliation against any
officer or civilian who participates in any fashion in assisting a
person bringing a complaint alleging that their rights have been
violated.

13.3 This policy shall define retaliation as being an action motivated by a
desire to punish a person for the exercise of First A mendment rights
which alters the terms and conditions of employment, including but
not limited to, giving unfair evaluations; initiating a disciplinary
action; giving excessive punishment for a disciplinary infraction;
failing to back or assist another officer; or giving unfavorable
assignments.
R. Vol. III at 339–40.

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citations, arrests, and civil complaints. Section 27 adds to these obligations the

requirement that the City maintain the “records necessary to document its

compliance with the terms of th[e] Decree.” Id. at 351. Subsection 27.3 grants

access by the Independent Auditor (a monitoring position created by the Decree,

to be discussed later) to a wide variety of TPD data and reports. Under § 27.4

“Counsel for Plaintiffs shall be provided access to the[se] documents and data . . .

upon reasonable request to the City.” Id. at 353. Subsections 27.4 and 27.5 state

that Plaintiffs may also request other open records relevant to compliance and

“shall have the right to share with Plaintiffs’ C ounsel information relevant to

compliance with this Decree available to them over the Department’s intranet.”

Id. In addition, under § 27.8 “[t]he City shall provide Plaintiffs’ counsel

quarterly access to the Chief of Police.” Id. at 354.

4. C om pliance M echanism s

The Decree also establishes mechanisms for overseeing compliance with

antidiscrimination and other requirements. Section 11, 3 which addresses

3
The full text of the relevant parts of § 11 is:
11.1 The City shall reorganize Internal Affairs into two squads. The
current internal affairs function shall be assigned to a new
Investigations Squad charged with conducting investigations of
complaints. A second squad, the Audit and Inspections Squad, shall
be charged with assuring that the Department is operating consistent
with the Department’s policies. It shall conduct such investigations
and audits of the Department’s data as necessary to meet this charge.
The A udit and Investigations Squad shall be staffed by two sergeants,

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discipline w ithin the TPD , reorganizes the Internal Affairs Section into two

squads: the Investigations Squad, charged with investigating complaints, and the

Audit and Inspections Squad, which must ensure that the TPD is “operating

consistent[ly] with the Department’s policies” by “conduct[ing] such

investigations and audits of the Department’s data as necessary.” Id. at 336–37.

Subsection 11.3 requires the City to “adopt and implement policies and

procedures” to ensure that every stage of the disciplinary process, from the

initiation of an investigation to the punishment given to an officer, is “free from

racial and or gender discrimination.” Id. at 337.

Section 21 creates a nine-member committee of the United States District

Court for the Northern District of Oklahoma named the Dispute Avoidance and

which shall be newly created positions.

11.3 The City shall adopt and implement policies and procedures to assure
that all stages of the disciplinary process are free from racial and or
gender discrimination, including:
a. the initiation of a disciplinary investigation;
b. the decision to bring disciplinary charges;
c. the resolution of a disciplinary action; and
d. the punishment given to an officer found to have violated a
Department regulation/policy.

11.5 The initiation of a disciplinary action, a decision to bring disciplinary
charges, or any other decision to discipline an employee of the
Department is not sufficient, by itself, to evidence discrimination
(including but not limited to racial or gender discrimination), without
the presence of other indicia of such discrimination.
R. Vol. III at 336–37.

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Resolution Committee (Dispute Resolution Committee). The members are to be

three citizens proposed by the parties and selected by the district court, two

members selected by the Plaintiffs, two senior members of the TPD selected by

the C ity, and two selected by the FOP. Section 22 describes the Committee’s

“primary objective” as “to collect and review information regarding compliance

from the Independent Auditor [created in § 26] and the City and then provide the

Parties an opportunity to discuss issues concerning the requirements of this

Decree, assist in the resolution of issues relevant to this Decree, and assist the

Parties in avoiding future litigation over these matters.” 4 Id. at 346. Section 23

4
The full text of § 22 reads:
22.1 The primary objective of the Committee shall be to collect and
review information regarding compliance from the Independent
Auditor and the City and then provide the Parties an opportunity to
discuss issues concerning the requirements of this D ecree, assist in
resolution of issues relevant to this D ecree, and assist the Parties in
avoiding future litigation over these matters. The Committee shall
have only the duties, responsibilities, and authority conferred by this
Decree. The Committee is not authorized to make policy and shall
not issue orders or directions to any Party or any agent,
representative or employee of the City. This Committee shall assist
the Parties in making the changes and resolving issues related to the
policies and practices required by this D ecree. W hen called upon to
do so, the Committee shall address disputes over compliance acting
as an alternative dispute resolution tool pursuant to the local rules of
the United States District Court for the Northern District of
Oklahoma. Committee members shall be required to participate in
proceedings of the Committee in good faith, openly discussing issues
and seeking ways in which any differences can be resolved. All
processes of the Committee shall be non-binding and not based upon
voting majorities.

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gives the Committee the authority to act as an adjunct settlement judge under

Local Rule 16.2 of the United States District Court for the Northern District of

Oklahoma in any settlement conference between the parties. If the Plaintiffs

believe that the City has failed to fulfill any of its obligations under the Decree,

§ 25.2 requires that they give written notice of the alleged failure to the City and

the Committee 45 days before initiating any court proceeding.

Section 26 5 creates an Independent Auditor, appointed by the court and paid

R. Vol. III at 346–47.
5
The relevant parts of § 26 are:
26. IN D EPEN D EN T A UDITOR

26.1 W ithin thirty (30) days of the entry of this Decree, the City and the
Plaintiffs’ class shall select an Independent Auditor for appointment
by the Court, with any disputes as to selection to be referred to
Settlement Judge Eagan for attempted resolution. The City shall bear
the cost of the Independent Auditor which shall not exceed $36,000
per annum, which may be increased only by a showing to the Court
of clear and convincing evidence that failure to increase the per
annum cost w ould impede the achievement of the objectives of this
Decree and would not violate the Oklahoma M unicipal Budget
Act. . . .

26.2 The Independent Auditor shall have senior management experience
and such other experience as the Court finds appropriate, but may not
be a present or former employee or family member of the City.

26.3 Once appointed, the Independent Auditor shall be deemed an officer
of the Court. The Independent Auditor is not a state or local agency,
or an agent thereof. The Independent Auditor shall not accept
employment or provide consulting services that would present a
conflict of interest with the Independent Auditor’s responsibilities
under this D ecree, including being retained (on a paid or unpaid

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 basis) by any current or future litigant or claimant, or such litigant’s
or claimant’s attorney, in connection with a claim or suit against the
City or the FOP, or their officers, agents or employees, or on behalf
of the City or the FOP, or their officers, agents or employees.

26.4 The Independent Auditor shall not issue statements or make findings
with regard to any act or omission of the City or its agents,
representatives or employees except as required by the terms of this
Decree, during a proceeding in this case or as might otherwise be
required by the Court. The Independent Auditor may testify in an
action brought by one of the Parties to enforce this Decree regarding
any matter relating to the implementation, enforcement or dissolution
of the Decree. The Independent Auditor shall not testify in any other
litigation or proceeding with regard to any act or omission of the City
or any of its agents, representatives or employees related to this
Decree or regarding any matter or subject that the Independent
Auditor may have received knowledge of as a result of his or her role
under this Decree.

26.5 The Independent Auditor shall perform a review of the City’s
compliance with the terms of this Decree and shall report to the
Committee three (3) times a year as to the City’s compliance. The
City shall provide the Independent Auditor with access to the data
collected pursuant to the provisions of Paragraph 3 of this Decree,
and any existing completed analysis thereof. In addition, the
Independent Auditor shall have access to City staff responsible for
creating or compiling this data. . . . The Independent Auditor shall
have access . . . to the reason for rejection of applicants to the
Academy in order to determine compliance with this Decree.
Notwithstanding any other provision of this Decree, counsel for
Plaintiffs shall not have access to such reason. Any dispute over
requests for additional information shall be referred to the Committee
for resolution. If the Committee is unable to resolve any such
dispute, the Independent Auditor may request the Court grant
appropriate access to the requested documents, data, or staff.

26.6 The Independent Auditor’s role is limited to compliance with this
Decree; the Independent Auditor is not a substitute for Internal

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by the City (no more than $36,000 per year, unless essential to effectuate the

Decree), who “shall perform a review of the City’s compliance with the terms of

th[e] Decree and shall report to the Committee three (3) times a year as to the

City’s compliance.” Id. at 350. The City is to provide the Independent Auditor

with necessary access to persons and information. “The Independent Auditor’s

role is limited to compliance with th[e] Decree; the Independent Auditor is not a

substitute for Internal Affairs or criminal investigations.” Id.

5. Pre-D ecree Discrim ination

Sections 28 to 31 of the Decree address individual grievances arising from

pre-Decree discrimination. Those with claims of race discrimination, retaliation,

wrongful discharge, or harassment in employment that arose before August 1,

2001, could file in district court a sworn statement of their claim within 60 days

of entry of the Decree (which was on M ay 12, 2003). Those found to have been

wrongfully denied a promotion could recover all available Title VII relief, front

pay, and back pay (up to $200,000), but no punitive damages. Those who

established wrongful termination before August 1, 2001, could receive back and

front pay up to $150,000 and all other available Title VII relief. For other claims

Affairs or criminal investigations.
R. Vol. III at 348–50.

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that accrued before A ugust 1, 2001, claimants could recover compensatory

damages (including lost wages up to $10,000). W ith respect to all claims,

successful individual claimants could recover attorney fees and expenses up to

$3,000 and a one-time additional $10,000 in attorney fees and expenses for

litigating the statute of limitations, discrimination in the promotion process, or

discrimination and retaliation in discipline.

6. M iscellaneous

Under the Decree, the district court retains jurisdiction of the action.

Section 32 provides that after five years the City may move for dissolution of the

Decree upon a showing that it has been in substantial compliance for two years.

Should the City move for dissolution, the Plaintiffs may object and present

evidence at a court hearing. Both Parties agreed to defend the Decree against

third-party attacks. Finally, the Decree states that Plaintiffs intended to move for

attorney fees.

M any of the Decree’s provisions were explained in a Notice of Proposed

Settlement of Class Action, Fairness Hearing and Right to Object that the parties

submitted to the court in December 2002. The purpose of the Notice was to

inform class members of the provisions of the proposed Decree, and it contained

much of the language included in the final Decree. At least one provision in the

Notice differed from the Decree. Under the heading “M onitoring by Plaintiffs,”

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the Notice stated, “The Decree provides opportunities for Plaintiffs to monitor

compliance by requiring the City to provide their counsel with a number of

documents, reports, and data.” R. Vol. II at 175. Although the final Decree does

give Plaintiffs’ counsel access to certain documents, it contains no use of the

word monitor.

B. Post-D ecree E fforts

Plaintiffs seek reimbursement for their attorneys’ post-D ecree efforts. It is

therefore essential to describe those efforts as best we can on the record before

us.

1. L etters to the C ity

The record indicates that Plaintiffs’ counsel wrote a number of letters

expressing concerns about possible violations of the Decree. For example,

apparently between September 25, 2003, and M arch 24, 2004, they sent seven

letters to the City alleging violations of the “assignments provisions of the

Consent Decree, with regard to [Debra] D ickens and [Ron] Clark.” Pl.’s Reply to

Resp. of City of Tulsa to Notice of Noncompliance at 2, Johnson v. City of Tulsa,

No. 94-C-39-H (M ) (N.D. Okla. M ay 28, 2004). The record, however, does not

contain these letters, so we must infer their content (and hence the efforts by

Plaintiffs’ counsel) by descriptions of them in other documents discussed below .

2. L etter to the Independ ent A uditor

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 On October 29, 2003, Plaintiffs’ counsel sent the Independent Auditor a

letter alleging that the City had violated certain provisions of the Decree.

Although the letter is not in the record, its contents are referenced in the

Auditor’s responses in his First Report to the Dispute Resolution Committee,

dated December 16, 2003, and his Second Report, dated April 21, 2004. W e

summarize each allegation in the letter, as described by the Auditor, and his

response:

(1) Counsel alleged that the City had violated § 5 of the Decree (relating to

specialty assignments) with respect to two officers, Debra Dickens (a named

Plaintiff) and Ron Clark. The First Report does not specify the claimed violations

and responds only by stating that the Plaintiffs’ concerns and allegations would be

more appropriately addressed to the Internal Affairs Section and the Dispute

Resolution Committee. The Auditor added that he would consider any reports

issued by these two entities in his next status report. After reviewing additional

information submitted by the Plaintiffs and the City, he concluded in his Second

Report that the City was in compliance with regard to Officer Dickens but had

violated § 5.2 with regard to Corporal Clark. The Auditor did not specify how the

City had failed to comply with § 5.2, but noted that “when both the Dickens and

Clark matters occurred, the Decree was less than a month old and the City had not

yet incorporated the required protections mandated by the Decree.” Indep.

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Auditor’s Second Report to the Dispute Avoidance & Resolution Comm. (Second

Report) at 3–4, id. (Apr. 21, 2004).

(2) Counsel alleged that the City had violated § 5.6 requirements regarding

vacancy announcements for specialty assignments. The First Report responded

that the City was in compliance because it was in the process of conducting the

required review of such announcements. After receiving additional information

from the City, the Auditor concluded in his Second Report that the City was in

compliance with § 5.6.

(3) Counsel alleged that the City had not fully complied with the § 6

mandate to establish a recruiting task force. The First Report found the City in

compliance, noting that Plaintiffs’ concerns regarding composition of the task

force were more properly addressed to the Dispute Resolution Committee. In the

Auditor’s Second Report he again found the City in compliance.

(4) Counsel alleged that the City had failed to offer temporary assignments

to those accepted to the Tulsa Police Academy, in violation of § 6. Because no

temporary-assignment positions had yet become available, the First Report stated

that the Independent Auditor was unable to determine whether the City had

complied with this provision. W hen he submitted his Second Report, no

temporary positions had yet been identified, so he still was unable to determine

compliance.

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 (5) Counsel alleged that the City had failed to enforce § 9 because

“‘insubordination towards black supervisors has been, and continues to be, a

serious problem in the Department’” and the department had failed to take

corrective action. Indep. Auditor’s First Report to the Dispute Avoidance &

Resolution Comm. (First Report) at 7 n.9, id. (Dec. 16, 2003) (quoting one of

Plaintiffs’ letters to the Indep. Auditor (which are not in the record)). The First

Report responded that these concerns should be addressed to the Internal Affairs

Section and the Dispute R esolution Committee, and that the Auditor w ould

consider any report issued by either entity in his next status report. The Second

Report stated only that § 9 “requires no determination from the Independent

Auditor.” Second Report at 6.

(6) Counsel alleged that the City had failed to recognize publicly the Black

Officer’s Coalition, in violation of § 10. The First Report stated that although

public recognition would be good, it was not required under the terms of the

Decree. The Second Report stated that this section required no determination

from the Independent Auditor.

(7) Counsel alleged that the City had violated the § 11.3 requirement that

the disciplinary process be free from discrimination. The First Report responded

that this concern should initially be addressed to the Internal Affairs Section and

the Dispute Resolution Committee. The Second Report stated that after reviewing

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the information submitted by the City in its first Progress Report and Supplement,

the Independent Auditor had determined that the City had complied with § 11.3

by providing a draft disciplinary policy to the Dispute Resolution Committee for

its review.

(8) Counsel alleged that the City had failed to submit a report required

under § 12 detailing its findings on how current officer training supported the

Decree’s objective of unifying the TPD and the community. The First Report

agreed that the City had failed to submit the report. The Second Report found the

City in compliance because it had “begun a review of Academy training and in-

service curriculum,” Second Report at 7, though it did not mention whether the

required report had been provided.

(9) Counsel alleged that the City had failed to comply with § 17 regarding

partnership in policing. Both the First and Second Reports found that the City

had complied with this section because it had adopted and begun implementing

CALEA standards.

3. N otice of N oncom pliance

After the Independent Auditor’s Second Report on April 21, 2004,

Plaintiffs’ counsel filed in district court on M ay 10, 2004, a Notice of

Noncompliance. The Notice reasserted a number of allegations in the October 29,

2003, letter to the Auditor, because counsel believed that the Auditor had ignored

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evidence of violations when he found the City in substantial compliance with the

Decree in his First and Second Reports. The following summarizes the

specifications of noncompliance:

The Notice alleged several violations with respect to Corporal Ron Clark.

The Second Report had found the City in violation of § 5.2 (without specifying

the nature of the violation), although it commented that the violation had occurred

less than a month after the effective date of the Decree. The Notice alleged that

the City also (1) had violated § 5.1, which requires that all specialty assignments

be made on the basis of merit and fitness, because it had awarded the M otorcycle

Squad Corporal position to an officer who was less experienced than Corporal

Clark, was in worse physical condition, and had performed worse on the

motorcycle-riding exam; and (2) had violated § 5.4, which requires that the

assignment decision be made by the M ajor, because the less-qualified officer had

been selected by the M otorcycle Squad Sergeant and was “based in part upon an

informal survey of the entire M otorcycle Squad.” R. Vol. IV at 439. The Notice

did not state whether Corporal Clark had filed a grievance with the Internal

Affairs Section or whether the matter had been presented to the Dispute

Resolution Committee.

The Notice alleged similar violations with respect to Officer D ickens, a

named Plaintiff. It alleged that she had been denied two specialty assignments,

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one as Detective Division Investigator and one as Traffic Safety Coordinator,

despite being more qualified than the white officers who received the

assignments. The Notice asserted that Officer Dickens was qualified for the

Detective Investigator position because of her 16 years’ experience as a police

officer and her prior experience as a Hit & Run and Fatality Investigator. It

claimed that the City had justified its hiring of two white officers for the

Detective Division positions after the fact by noting that one was good at serving

warrants and was a former auto mechanic and that the other had prior knowledge

of street crimes. According to the Notice of Noncompliance, because these

qualifications were not listed in the posted job notices, the City had violated

§ 5.2, and because the appointments w ere not based on merit and fitness, the City

had violated § 5.1. The Notice also alleged that despite having substantial

experience directly relevant to the position, Officer Dickens had been passed over

for a Traffic Safety Coordinator position that was instead given to an officer who

had not even applied for the job, in violation of § 5.5. The Notice contained no

information about whether Officer Dickens had brought her concerns to the

Internal Affairs Section or the Dispute Resolution Committee.

Another alleged violation relating to Officer D ickens w as the failure to

provide her with requested back-up support on several occasions, in violation of

§ 14, which requires that officers back other officers in need. M oreover, the

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Internal Affairs Section had allegedly responded to the reported incidents by

investigating Captain Busby, also a named Plaintiff, rather than the radio

dispatcher, an incident of retaliation in violation of § 13.

The Notice further complained that the TPD’s A pril 2004 decision to

transfer officers from the Detective Division back into the field had violated § 5.1

of the Decree, which requires that assignments be made on the basis of merit and

fitness. Sixteen officers, four of whom were black, had been transferred out of

the D ivision. Of the four black officers, three were named Plaintiffs in the class-

action suit. The City had given three different reasons why those particular

officers had been transferred, none of which related to merit and fitness. The

Notice also suggested that the transfers of these three officers were in retaliation

for their role in the class action, in violation of § 13. Again, the Notice failed to

state whether any of these concerns had been addressed to either the Internal

Affairs Section or the Dispute Resolution Committee.

Officer M att Wicks w as also alleged to have suffered retaliation in

violation of § 13. Officer W icks had filed in district court, under the Decree

provisions that authorized filing individual claims, a statement of claim alleging

that in 1998 he had been denied a specialty assignment in the M ounted Patrol Unit

because of his involvement in the TBOC. The Notice alleged that in retaliation

for this claim, the City had begun a disciplinary investigation of W icks, charging

-22-
that his claims made false allegations against a fellow officer. W hen W icks

requested that the disciplinary investigation be halted, Police Chief Been

declined, saying that the Decree required that he complete the investigation.

The final violation alleged by the Notice was the appointment of Bob

Jackson, a former president of the FOP, to the Gang Unit. According to the

Notice, not only was the position not posted, a violation of § 5.2, but the

assignment was not made on the basis of merit and fitness as required by § 5.1,

and he was recruited directly for the position, a violation of § 5.5.

In a M ay 18, 2004, response to the Notice of Noncompliance, the City

pointed out that the Decree required Plaintiffs to submit any disputes to the

Dispute Resolution Committee before initiating a court proceeding. Plaintiffs

replied that they had provided the City with repeated notice of the alleged

violations, including seven letters between September 25, 2003, and M arch 24,

2004, regarding Dickens and Clark, and that the City had merely denied that any

violations had occurred. M oreover, they said, because the Auditor had found the

City in compliance with the Decree, they felt that they had to respond to that

finding in some way.

Plaintiffs took an additional step with respect to one alleged violation of

the Decree. On June 8, 2004, they filed a motion for a preliminary injunction to

halt retaliatory conduct against Officer W icks. On June 21 the district court

-23-
referred this dispute to another judge for a settlement conference on June 23. O n

June 25 the court granted a motion to withdraw Plaintiffs’ motion for injunctive

relief, although the record does not indicate the terms of settlement.

The Notice of Noncompliance was referred to the Dispute Resolution

Committee by the district court on June 21, 2004. Before the Committee acted,

the Independent Auditor filed his Third Report on July 1, 2004. It recited the

City’s assertions that (1) the transfers out of the Detective Division had not been

retaliatory, had been necessary because more officers were needed in the field,

had been made under the FO P’s Collective Bargaining Agreement with the TPD ,

and had not been the subject of a grievance or complaint by any of the transferred

officers who were named Plaintiffs; (2) the assignment of Bob Jackson to the

Gang Unit “‘was not a normal special assignment’” but a response to an

“‘immediate need’ for an officer w ith a ‘day shift w eekends off’ w ork schedule,”

and was a temporary assignment made under the Collective Bargaining

Agreement. Indep. Auditor’s Third Report to the Dispute Avoidance &

Resolution Comm. (Third Report) at 4 n.3, Johnson v. City of Tulsa,

No. 94-C-39-H (M ) (July 1, 2004). The report found that the City had complied

with § 5 regarding specialty assignments and § 13’s prohibition on retaliation,

although its only mention of a retaliation allegation was to note the settlement of

the W icks claim. It further found that the City had complied with § 14, regarding

-24-
backing, because the City had ordered a full investigation into O fficer Dickens’s

complaint that she had not received backing. Overall, the Report found no

violation of the Decree.

At a meeting on July 30, 2004, the Dispute Resolution Committee decided

that the issues identified in the Notice of Noncompliance should be referred to the

adjunct settlement process. The district court adopted the recommendation on

August 16, 2004, referring the Notice’s allegations regarding (1) the failure to

select Dickens as an investigator in the Detective Division; (2) the failure to

assign Clark to the M otorcycle Squad; (3) the reassignment of three named

Plaintiffs from the Detective Division to the field; and (4) the assignment of

Jackson to the Gang Unit. Two weeks later it entered an order stating that the

parties had settled the claims set forth in the Notice. Under the settlement Officer

Dickens was offered a position with the Detective Division’s Diversified Crimes

Unit and Corporal Clark was assigned to the motorcycle unit. One of the named

Plaintiffs previously transferred from the Detective Division was allowed to

remain, while the other two named Plaintiffs who had been transferred selected

other assignments. Also, the TPD agreed to draft and implement a new policy

clarifying criteria for transfers. Plaintiffs voluntarily dismissed their claim with

regard to Bob Jackson’s assignment to the Gang Unit. In return the City agreed to

“draft, enact and implement policy language which clarifies that, in the future,

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when a temporary or interim assignment is made to a position which is intended

to be a permanent position, the City will announce the permanent assignment as

open . . . and proceed to fill the position on the basis of merit and fitness.” R.

Vol. VII at 929.

4. C aptain Poindexter Incident

After the Auditor filed on October 27, 2004, his Fourth Report, in which he

found no instances of noncompliance, Plaintiffs’ counsel filed another Notice of

Noncompliance in district court on November 4. It addressed only one claim, an

alleged retaliatory and discriminatory disciplinary action against Captain Greg

Poindexter, in violation of §§ 11.3 and 13 of the Decree. Captain Poindexter, an

African-A merican, had applied to take a promotional exam to become a major.

W hen he learned that a new component had been added to the exam, an oral

resume, he criticized the innovation. He finished fourth on the exam, complained

to one of the examiners about the unfairness of the new exam, and sought advice

from the examiner on how he could improve his candidacy. Police Chief Been

learned of the conversation and ordered an investigation into whether Poindexter

had violated TPD Rule 8, which provides that “‘[o]fficers and employees shall not

comm it any act or indulge in any behavior, on or off duty, which tends to bring

reproach or discredit upon the Department,’” and TPD Rule 10, which states that

“officers may not publicly criticize the TPD in a ‘defamatory, obscene,’ or

-26-
‘unlawful’ manner.” Id. at 960 (emphasis omitted). As a result of the

investigation, Poindexter was suspended for 20 days and demoted three ranks

from captain to officer. Plaintiffs’ counsel gave the Dispute Resolution

Committee written notice of these allegations on August 6, 2004, but the City

failed to respond within the 45-day period allowed by the Decree. Counsel then

contacted the City on September 22 and 29, 2004, to discuss settlement of these

claims. The City responded: “The actions taken against Officer Poindexter were

justified, and did not violate the Consent Decree. Nothing in the Consent Decree

deprives the City from disciplining members of the Department who have violated

Department policies and procedures.” Id. at 988 (City’s Resp. to Pls.’ Sept. 22

Letter). It does not appear that Poindexter ever sought an investigation by the

Internal Affairs Section.

On January 24, 2005, more than two months after filing the Notice,

Plaintiffs’ counsel filed a pleading that combined a motion for a temporary

restraining order, a motion for a preliminary injunction, and a motion to

supplement the notice of noncompliance. On January 14, 2005, Chief Been had

notified Poindexter of a pretermination hearing arising from his alleged attempt to

obtain improper reimbursement of medical expenses through his Flex Plan

account, a violation of TPD Rule 6 requiring officers to be truthful. The pleading

contended that (1) the investigation into the reimbursement issue, coming only

-27-
seven days after the August 6 letter to the Dispute Resolution Committee alleging

retaliation against Poindexter, was further retaliation, and (2) this degree of

discipline violated the Decree’s prohibition against racially motivated disparate

discipline because it was harsher than that faced by white officers who had been

accused of dishonest acts. The pleading therefore sought to enjoin the

pretermination hearing and any subsequent termination of Officer Poindexter until

the district court had ruled on the retaliation violations alleged in the November 4

Notice of Noncompliance. The pleadings relating to Poindexter were eventually

dismissed on February 28, 2005, at the request of Plaintiffs’ counsel. The record

contains no explanation.

5. A ttorney -Fee R equest

Attorney fees in civil-rights litigation may be awarded under 42 U.S.C.

§ 1988(b), which states that a court “in its discretion, may allow the prevailing

party, other than the United States, a reasonable attorney’s fee as part of the

costs.” On February 4, 2005, Plaintiffs’ counsel filed in district court an amended

motion seeking reimbursement under § 1988 for attorney fees and expenses

incurred in two activities: (1) pursuit of the original fee request, and (2) post-

Decree monitoring and compliance efforts. The district court’s award with

respect to the first activity is not challenged on appeal.

W ith respect to the monitoring and enforcement activities, counsel sought

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approximately $96,000. At a M arch 1, 2005, hearing before the magistrate judge

on the fee request, Plaintiffs’ lead attorney Louis Bullock testified that his firm

had “mostly . . . been responding to specific events which have been raised by

officers where we believe there was a clear violation of the Consent Decree” and

that it was “clear that the plaintiffs have a role” in monitoring and enforcing the

Decree. Aplee. Supp. App. at 135. Plaintiffs should get attorney fees, he said,

because “[t]he law in this circuit is that plaintiffs counsel in class actions have an

obligation to monitor and enforce” consent decrees. Id. He continued, “[T]here’s

a clear legal obligation . . . to respond to the claims of individual class members

who were treated in violation of the decree.” Id. at 135–36. W hen asked whether

these individual claims related to the original decree, he replied, “Y ou’re only

there because you won.” Id. at 136. In response to the City’s argument that it

was inappropriate to seek compensation for raising individual compliance claims,

M r. Bullock testified that “many of the things in the Consent Decree . . . are only

demonstrated . . . in the treatment of an individual officer.” Id. at 143. He noted

in particular that retaliation and discrimination in specialty assignments were

actions directed against individuals. In his view the existence of the Independent

Auditor did not alter this duty, because “even where there is a monitoring or some

type of a court process, . . . plaintiffs’ counsel will continue to have their

independent obligation to enforce the decree.” Id. at 145. On cross-examination

-29-
he conceded that he could have negotiated in the Decree a provision for payment

of attorney fees incurred in monitoring compliance, and that the Decree lacked

such a provision, but he reiterated that even without it Plaintiffs had a monitoring

role. He pointed out that there was no reason for Plaintiffs to be given copies of

reports and documents if they were not in some way to be involved in monitoring

the Decree.

The magistrate judge recommended that the request be denied under the

Supreme Court’s decision in Buckhannon Board & Care H om e, Inc., v. West

Virginia Department of Health & Human Resources, 532 U.S. 598 (2001). He

stated, “[H]owever useful the actions taken by Plaintiffs’ counsel in monitoring

and seeking compliance w ith the Consent Decree may have been, since those

activities did not produce an order or other decree in Plaintiff’s [sic] favor,

applying Buckhannon, the Court sees those activities as falling outside the terms

of [42 U.S.C.] § 1988.” R. Vol. VI at 646. Although acknowledging that this

result might seem unfair because “the Consent Decree set up a procedure whereby

Plaintiffs are required to present disputes concerning compliance to a Committee

established by the Decree,” the Decree did not “place Plaintiffs in charge of

assuring compliance,” and “no provision provide[d] for the payment of any fees

related to Plaintiffs’ monitoring activities.” Id. at 647. The district court adopted

the magistrate judge’s recommendation regarding post-Decree monitoring and

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Plaintiffs timely appealed.

II. D ISC U SSIO N

W e review a district court’s award of attorney fees for an abuse of

discretion, reviewing its findings of fact for clear error and its legal conclusions

de novo. See Browder v. City of M oab, 427 F.3d 717, 719 (10th Cir. 2005).

Plaintiffs contend that under Pennsylvania v. Delaware Valley Citizens’

Council for Clean Air, 478 U.S. 546 (1986), they are entitled to reasonable

attorney fees for monitoring the Decree. The City convinced the district court,

and argues again on appeal, that the Supreme Court held in Buckhannon, 532 U.S.

598, that only work that results in a court order or decree conveys “prevailing

party” status for purposes of attorney-fee awards under § 1988, and that because

none of the post-Decree work of Plaintiffs’ counsel resulted in a court order or

decree, it is not compensable. W e reach an intermediate position. To explain our

conclusion we begin w ith an analysis of the leading cases relied on by the parties.

Under the traditional “A merican Rule,” the “prevailing litigant is ordinarily

not entitled to collect a reasonable attorneys’ fee from the loser.” Alyeska

Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 247 (1975). But 42 U.S.C.

§ 1988(b) and other fee-shifting statutes override the traditional rule and

authorize attorney fees in certain circumstances. Congress enacted § 1988 to

“ensure effective access to the judicial process for persons w ith civil rights

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grievances,” Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (internal quotation

marks omitted), the rationale being that individuals are more likely to seek redress

if they have the possibility of recovering their attorney fees. Courts should

therefore award fees to the prevailing party under § 1988 “unless special

circumstances would render such an award unjust.” Id.

The question we must resolve on this appeal is the extent, if any, to which

prevailing-party status attaches to the postdecree efforts of counsel for a class of

plaintiffs who have obtained a consent decree. W e begin by discussing precedent

from the Supreme Court and our circuit suggesting that postdecree efforts may be

compensable even in the absence of affirmative judicial relief.

A. D elaw are Valley

The relevant Supreme Court decision is Delaware Valley. The D elaw are

Valley Citizens’ Council for Clean Air (Delaware Valley) had filed suit under the

Clean Air Act, 42 U.S.C. § 7410, to compel the Commonwealth of Pennsylvania

to enact a vehicle-emissions regulation program. See 478 U.S. at 549. The

parties entered into a consent decree, under the terms of which Pennsylvania

agreed to enact an emissions program for several counties in the Pittsburgh and

Philadelphia areas by August 1, 1980. In addition, the Pennsylvania Department

of Transportation (PennDOT) would seek legislation to establish private

emission-inspection franchises to implement the new emissions requirements. If

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the legislature did not approve the franchise system, PennDOT was to promulgate

regulations certifying private garages to perform the emissions tests.

The plaintiffs’ counsel was quite active after entry of the consent decree

and sought attorney fees for those efforts. Although the specific issue before the

Supreme Court was w hether attorney efforts before administrative agencies could

be compensable, the Court’s opinion plainly signals approval of compensation for

all the described efforts by counsel, so it is instructive to include a rather full

description.

The Court divided the activities following entry of the consent decree into

nine phases. In Phase I Delaware Valley moved to hold Pennsylvania in contempt

because the Pennsylvania legislature had refused to authorize the franchise system

and PennDOT had failed to promulgate the required regulations. But before the

district court could rule on the motion, PennDOT published the regulations. See

id. at 549–50. The district court therefore did not hold the Commonwealth in

contempt but ordered the parties to establish a revised schedule for

implementation of the regulations. Phase II consisted of D elaw are Valley’s

efforts to monitor Pennsylvania’s performance and its submission of comments on

the proposed regulations. In Phase III Delaware Valley reviewed and approved

Pennsylvania’s request for a ten-month extension of the August 1, 1980, deadline,

which the district court granted. Phase IV concerned further efforts regarding

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extensions. By month six of the extension, Pennsylvania requested an additional

two years. W hen the parties were unable to reach an agreement, Pennsylvania

asked the district court to approve its request. Delaware Valley responded by

seeking an order finding Pennsylvania in contempt and modifying the terms of the

consent decree. The district court held Pennsylvania in contempt, refused to

modify the decree, and denied Pennsylvania’s requested extension, although a few

months later it approved a one-year extension. Pennsylvania appealed both the

district court’s finding of contempt and its one-year extension, and lost both

appeals. See id. at 550–51.

Phase V involved a battle of wills between the federal judiciary and the

Pennsylvania legislature. The legislature enacted a law prohibiting the

expenditure of state funds for implementation of the emissions program. See id.

at 551. PennDOT therefore ceased all emissions-program activities after

publishing final regulations for garage owners to conduct emissions inspections.

Pennsylvania then sought to stay implementation of the decree, and Delaw are

Valley sought a finding of contempt and sanctions. The district court held

Pennsylvania in contempt, denied a stay, and limited the Commonwealth’s access

to federal funds by ordering the U nited States Secretary of Transportation to cease

approval of highway projects and grants in the Pittsburgh and Philadelphia areas

unless they met certain criteria. The Commonwealth’s appeal of this order was

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denied.

In Phase VI the City of Pittsburgh and several legislators attempted to

intervene in the litigation. See id. at 552. Delaware Valley successfully resisted

these attempts. In Phase VII the district court reviewed seven projects that the

U nited States Secretary of Transportation had funded and found that only two

were allowable under the court’s prior order. In Phase VIII the Pennsylvania

legislature finally passed the legislation required to implement the emissions

program and negotiated with Delaware Valley for a new implementation schedule,

which the court approved. In Phase IX Delaware Valley successfully opposed

Pennsylvania’s efforts before the Environmental Protection Agency to reduce the

size of the area in which the emissions plan was to be implemented.

Delaware Valley then sought attorney fees it had incurred since the consent

decree had been entered. M uch of the work for which it sought compensation

involved postdecree litigation, but it also involved work in Phases II and IX

before state and federal administrative agencies. The district court awarded fees

for that w ork, and the Third Circuit affirmed.

Pennsylvania argued before the Supreme Court that the language of the

attorney-fee provision of the Clean Air Act allowed recovery only for “costs of

litigation,” and that therefore D elaw are Valley’s administrative w ork in Phases II

and IX was not compensable. See id. at 557–58. The Court disagreed, explaining

-35-
that counsel’s work in those phases, although not traditional legal work,

was as necessary to the attainment of adequate relief for their client
as was all of their earlier work in the courtroom which secured
Delaware Valley’s initial success in obtaining the consent decree.
This case did not involve a single tortious act by the Commonwealth
that resulted in a discrete injury to Delaware Valley, nor was the
harm alleged the kind that could be remedied by a mere award of
damages or the entry of declaratory relief. Instead, Delaware Valley
filed suit to force the Commonwealth to comply with its obligations
under the Clean Air Act to develop and implement an emissions
inspection and maintenance program covering 10 counties
surrounding two major metropolitan areas. To this end, the consent
decree provided detailed instructions as to how the program was to
be developed and the specific dates by which these tasks were to be
accomplished.
Protection of the full scope of relief afforded by the consent
decree was thus crucial to safeguard the interests asserted by
Delaware Valley; and enforcement of the decree, whether in the
courtroom before a judge, or in front of a regulatory agency with
power to modify the substance of the program ordered by the court,
involved the type of work which is properly compensable as a cost of
litigation under § 304. In a case of this kind, measures necessary to
enforce the remedy ordered by the District Court cannot be divorced
from the matters upon which Delaware Valley prevailed in securing
the consent decree.

Id. at 558–59 (emphasis added). The Court therefore held that the postdecree

monitoring work in each phase was compensable.

Although the case arose under the Clean Air Act, the Court stated that the

Act’s fee provision was intended to serve the same purpose as the fee provision in

42 U.S.C. § 1988— to encourage private citizens to enforce rights created under

federal law. The Court cited with approval several § 1988 cases that had awarded

attorney fees for postjudgment monitoring of consent decrees, and stated that the

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fee provisions of the two statutes should be interpreted in the same manner. See

id. at 559–60.

B. Tenth C ircuit Precedent

W ithout relying on Delaware Valley, we have likewise held that some

postdecree monitoring activity by plaintiffs’ counsel is compensable. In Duran v.

Carruthers, 885 F.2d 1492 (10th Cir. 1989), the plaintiff class, inmates in a New

M exico penitentiary, had brought suit against state officials alleging violations of

their civil rights. In 1980 the parties entered into a comprehensive consent decree

that set out detailed rules and regulations governing the operation of the prison.

See id. Among other things the decree established an internal monitoring body.

But the compliance monitor filed two reports highly critical of the defendants and

was fired. The district court then appointed a special master to monitor the

defendants’ compliance. See id. at 1495.

The plaintiffs also monitored compliance and several times sought

contem pt citations. In addition, they opposed several efforts by the defendants to

modify the decree. See id. at 1493. Although the consent decree remained in

effect, many of the postdecree disagreements between the plaintiffs and the

defendants were settled by mutual agreement. See id.

The plaintiffs sought attorney fees for their postdecree work. In awarding

attorney fees, the district court held that the plaintiffs’ “post-judgment services

-37-
necessary to reasonable monitoring of the consent decree were compensable under

42 U.S.C. § 1988.” Id. The defendants challenged the fee award, arguing that

because they conducted their own monitoring and a Special M aster had been

appointed to ensure compliance, the plaintiffs’ monitoring was “essentially

gratuitous, self-initiated and redundant, as well as being unnecessary, duplicative,

and superfluous.” Id. at 1495 (internal quotation marks omitted). Rejecting that

argument, we stated that to hold that plaintiffs’ monitoring work w as unnecessary

“would mean that the plaintiffs must accept reports of the Special M aster and the

defendants’ own compliance officer at face value and they would be unable to

make any real challenge . . . to such reports.” Id. W e noted that plaintiffs’

attorneys were charged with continuing duties under the decree; in particular, they

had the right to challenge in court any declaration of an emergency or any

implementation of the decree. See id. “In short, the 1980 consent decree was

only the beginning, and counsel for the plaintiffs has a continuing duty and

responsibility to make sure that the defendants comply, and continue to comply,

with the decree.” Id. See also Diaz v. Romer, 961 F.2d 1508, 1511 (10th Cir.

1992) (subclass that was “part of the prisoner class that prevailed in the original

litigation, which spawned subsequent stipulations and consent orders[,] . . . did

not lose their prevailing-party status when they were named a subclass.”)

The defendants also argued that the plaintiffs had not prevailed on a motion

-38-
to hold them in contempt because the plaintiffs had withdrawn it under an

agreement with the defendants, and thus should not get fees related to the motion.

But we noted that this agreement also required the defendants to withdraw their

request to the court to modify the decree. Citing M aher v. Gagne, 448 U.S. 122

(1980), we said that plaintiffs were a prevailing party because Ҥ 1988

contemplates that there will be an award of attorneys’ fees and costs if the

plaintiff vindicates his or her rights through settlement.” Id. at 1496. W e

affirmed the district court’s award of attorney fees.

W e also recognized a party’s ongoing prevailing-party status in the

postdecree phase in Joseph A. v. New M exico Department of Human Services, 28

F.3d 1056 (10th Cir. 1994). The plaintiffs, foster children in New M exico, had

entered into a consent decree with the New M exico Department of Human

Services. The decree specifically authorized attorney fees for decree-monitoring

work. See id. at 1058. The defendants appealed an award on the ground that it

included compensation for a failed attempt to obtain a contempt order. See id. at

1059. W e stated that although the degree of success was a consideration in the

overall analysis of what fees to award, lack of success during the monitoring

phase did not deprive them of prevailing-party status. W e said: “[T]he fact that

plaintiffs ultimately did not prevail in their efforts to secure a contempt order

d[id] not divest them of their status as prevailing parties so long as the work done

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was necessary to the overall effort.” Id. at 1060. W e noted that “it may be that

the litigation of the contempt motion resulted in auxiliary or overall benefits to

plaintiffs.” Id. at 1061.

But more than prevailing-party status was necessary to sanction the award.

Fees could be awarded only if “the effort expended was necessary and the fees

requested . . . reasonable.” Id. at 1060. Because “[f]ees are compensable only for

work that is useful and of a type ordinarily necessary to secure the final result

obtained,” id. (internal quotation marks omitted), on remand the district court was

to determine whether the defendants had in fact been failing to comply with the

consent decree and whether the plaintiffs’ failed motion for contempt had been “a

necessary response,” id. at 1061.

C. B uckhann on

In the City’s view, however, Duran, Joseph A., and perhaps even Delaware

Valley, have been overruled, or at least limited, by Buckhannon, 532 U.S. 598.

The issue before the Supreme Court in Buckhannon was the meaning of prevailing

party. Buckhannon had brought suit against the State of West Virginia, seeking

declaratory and injunctive relief, alleging that a statute requiring that residents of

boarding homes be capable of “self-preservation” violated the Fair Housing

Amendments Act of 1988. Id. at 600–01 (internal quotation marks omitted).

W ithin a year of the suit’s being filed, the W est Virginia legislature eliminated

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the requirement, and the district court dismissed the case as moot. See id. at 601.

Buckhannon then requested attorney fees, arguing that it was a prevailing party

because its lawsuit had been the impetus for the legislature’s voluntary enactment

of the statutory change. See id. (The view that attorney fees are compensable in

such circumstances has been called the “catalyst theory” of fee shifting.) The

district court denied attorney fees, and the Fourth Circuit affirmed. See id. at

602. The Supreme Court agreed. It stated, “A defendant’s voluntary change in

conduct, although perhaps accomplishing what the plaintiff sought to achieve by

the law suit, lacks the necessary judicial imprimatur” to make a party prevailing.

Id. at 605. Because there was no “judicially sanctioned change in the legal

relationship of the parties,” id., Buckhannon had not been a prevailing party.

To support its view that Buckhannon precludes the claim for attorney fees

in this case, the City points to Alliance to End Repression v. City of Chicago, 356

F.3d 767 (7th Cir. 2004). In 1981 the Alliance plaintiffs had obtained a consent

decree that restricted the city’s authority to investigate alleged subversive

activities. The decree did not grant the plaintiffs or their lawyers any monitoring

or other responsibilities. See id. at 768. Nonetheless, over a period of seven

years plaintiffs had brought two failed contempt proceedings and a failed

opposition to the city’s request to modify the decree, and had engaged in “efforts,

which also bore no fruit so far as anyone can say, to monitor the city’s

-41-
compliance with the decree— no fruit, that is, except the failed contempt

proceedings.” Id. at 769. Despite this lack of success the district court had

awarded plaintiffs $1 million in attorney fees for these monitoring activities. The

defendants appealed the award, and the court of appeals reversed.

The plaintiffs had argued that they were entitled to attorney fees because

the consent decree made them prevailing parties for the entire life of the decree,

which contained no end date. They also argued that they were “duty-bound 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.” Id. The court disagreed. The

plaintiffs had relied on Delaware Valley to support their fee claim, but the court

distinguished it because “those postjudgment proceedings w ere at least partly

successful,” while “[t]hese plaintiffs’ postjudgment proceedings were not.” Id.

Recognizing that other courts had awarded fees to plaintiffs who obtained

no postdecree relief, Alliance distinguished some on the ground that the consent

decree had specifically authorized attorney fees for plaintiffs’ postdecree efforts

and even then the plaintiffs’ efforts had at least contributed to inducing

compliance w ith the decree. The remaining cases awarding fees are best

explained, said the court, as adopting the view that careful monitoring would

deter violations of the decree. But “the rationale is attenuated in a case such as

-42-
this in which someone else— not the plaintiff— is the appointed monitor.” Id. at

771. And, more importantly, that rationale is “inconsistent with the Supreme

Court’s rejection in Buckhannon of the ‘catalyst’ theory of fee-shifting.” Id. The

plaintiffs’ failure to secure a successful outcome in the postjudgment phase made

their efforts noncompensable. See id.

Alliance acknowledged the view of some courts that compensation might be

appropriate if the failed effort was considered an offshoot of a successful pending

case. But it rejected that view and, in any event, thought it inapplicable on the

facts before it. “[T]he 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.” Id. “W e 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 law yer 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.” Id. at 772.

Finally, the court rejected the notion that the plaintiffs’ attorneys had an

ethical duty to oppose modification of and monitor the decree. Neither the

original nor the modified decree imposed any duties on them. “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

-43-
established. They would not have been letting down the class had they done so.”

Id. Although the court recognized that other courts, including this court in

Duran, had awarded fees to plaintiffs despite the existence of a separate entity to

monitor defendants’ compliance with a consent decree, it stated that those cases

“do not survive Buckhannon.” Id.

D. A nalysis

W e are not persuaded by Alliance, at least as that opinion is interpreted by

the City. It cannot be disputed that Plaintiffs have been prevailing parties in this

litigation. The Supreme Court has held that a party that obtains a consent decree

is a prevailing party. See Maher, 448 U.S. at 129. Buckhannon does not cast

doubt on that proposition. M oreover, Buckhannon does not purport to overturn,

or even limit, Delaware Valley; the Buckhannon opinion does not even mention

Delaware Valley. In light of Delaware Valley and this circuit’s precedents, w e

cannot accept the proposition that attorney fees for postdecree efforts are

compensable only if they result in a judicially sanctioned change in the parties’

legal relationship. The Decree itself was such a change, and attorney fees

incurred for reasonable efforts to enforce that change— that is, protect the fruits

of the Decree— are compensable.

On the other hand, we also depart from the Plaintiffs’ view . Their view is

an overbroad characterization of what constitutes protecting the fruits of the

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decree. A lawyer’s work should not be characterized as protecting the fruits of a

decree just because it is directed at the same problem that the decree was directed

at. W hen a decree establishes a particular mechanism for addressing the problem

that motivated the initial law suit, the “fruit of the decree” is a properly

functioning mechanism, not the elimination of the problem addressed by the

mechanism. For example, the decree in Delaware Valley required implementation

of an automobile-inspection program. So long as the program is functioning

properly, the plaintiffs are enjoying the “fruits” of the decree. There may be

owners w ho fail to bring their vehicles in for inspection. But attorney efforts to

identify and pursue those persons should not be compensable as long as the

C om monwealth’s program is performing this task— say, by refusing to renew a

vehicle’s registration unless the vehicle has an inspection certificate. In other

words, the role of the plaintiffs’ attorney in protecting the fruits of victory is to

ensure that the decree is being honored, not to ensure that the problems

motivating the decree have been eliminated.

This was certainly the circumstance in Delaware Valley. The actions of

counsel through each phase of that case were directed at establishing and

continuing the vehicle-monitoring program, as required by the decree. The

Supreme Court declared that “measures necessary to enforce the remedy ordered

by the D istrict Court cannot be divorced from the matters upon which D elaw are

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Valley prevailed in securing the consent decree.” Delaware Valley, 478 U.S. at

559. In Duran and Joseph A. the particular efforts by the plaintiffs’ attorneys are

unclear, but we characterized them as monitoring performance of the decree. 6

Of course, the decree itself can spell out what efforts by plaintiffs’ counsel

are to be compensated. Indeed, the amount of litigation on the subject suggests

that explicit provisions in consent decrees would be a boon for all concerned

(certainly the courts). But when, as here, the matter was not resolved in the

decree itself, we must apply the above general principles, as informed by

reasonable inferences from the decree’s provisions.

Resolving the matter in this case is not an easy task. As w e proceed to

explain, we do not think that resolution is possible on the record before us, so w e

must reverse and remand for further proceedings. The difficulty in characterizing

the efforts of Plaintiffs’ counsel arises from the Decree’s inclusion of some

6
Certain statements in Duran and Joseph A. might be read to support the
“catalyst theory,” and we recognize that such a reading is no longer defensible in
light of Buckhannon. In our view, however, Duran and Joseph A. are more
properly read to have predicated postdecree attorney fees on the necessity of the
actions to preserve the plaintiffs’ prior success in achieving a consent decree, and
in this respect these opinions survive Buckhannon. See Duran, 885 F.2d at 1496.
(“[T]he entry of the Court’s judgment has not terminated the role of the plaintiffs’
counsel. . . . W ithout determined, competent and dedicated representation, the
provisions of this Consent Decree might have had little practical significance for
the class members.” (internal quotation marks omitted)); Joseph A., 28 F.3d at
1059 (“W hile the degree of success plays a part in the overall analysis [of
postdecree attorney fees], we think a more important inquiry is whether the w ork
done was necessary to achieve the final result.”).

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provisions that set standards and other provisions that establish enforcement

mechanisms. The standards include § 5, which requires that specialty

assignments “be made on the basis of merit and fitness”; § 6, which requires

hiring “on the basis of merit and fitness”; § 7, which requires that promotions

likew ise be based on merit and fitness; and § 13, which forbids retaliation against

anyone who raises “matters of public concern,” including complaints of

discrimination. The enforcement mechanisms include creation of the Dispute

Resolution Committee in § 21, the creation of an Independent Auditor in § 26,

and the reorganization of the Internal Affairs Section in § 11 to include an

Investigations Squad and an Audit and Inspections Squad.

One could argue that a violation of any standard or enforcement provision

constitutes a violation of the Decree, and that Plaintiffs’ counsel should be

reimbursed for all efforts to “enforce” the Decree by identifying and correcting

such a violation. In our view, however, the Decree is best read as establishing

enforcement mechanisms to prevent, detect, and remedy violations of the

standards. The fruit of the Decree is the proper functioning of those mechanisms.

As in any large bureaucracy, violations of the standards will occur; but if the

enforcement mechanisms function properly to prevent, detect, and remedy

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violations, the Decree is serving its purpose. 7 After all, the standards are, in

intent and essence, restatements of the requirements of antidiscrimination law

upon which the original suit was based. To say, for example, that promotion

should be based on merit and fitness is to say that promotion should not be on the

basis of race, religion, etc. Thus, the standards are not the fruit of the Decree.

The fruit is the establishment of the mechanisms to ensure compliance with

antidiscrimination law; the purpose of the provisions setting standards is to set the

goals for enforcement mechanisms and the criteria for measuring their

performance. If those who have been treated improperly— because, for example,

they are the subject of retaliation or because promotion was not based on

merit— generally obtain relief from the mechanisms established by the Decree,

then the mistreated persons have enjoyed the fruit of the decree.

One might argue that another fruit of the Decree is to provide free legal

services during the life of the Decree to anyone who claims injury from a

violation of a standard set out in the Decree. But we decline to infer that purpose

of the Decree in the absence of explicit language, particularly when the Decree

sets a modest upper limit on compensation of the Independent Auditor and its

7
“Proper” functioning does not mean “perfect” functioning. No system
works perfectly. M istakes are inevitable and, inevitably, some individual cases of
mistreatment will not be adequately redressed. Occasional errors do not
necessarily establish systemic failure or deprive the class of the fruits of the
decree.

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explicit provisions on attorney fees address only claims based on pre-Decree

misconduct. Although we reject the Seventh Circuit’s suggestion in Alliance that

the strictures of Buckhannon govern all postdecree efforts by the attorneys who

obtained the decree, see Alliance, 356 F.3d at 771, we share that court’s

reluctance to treat a class-action decree as a “gravy train” that provides attorneys

a “guaranteed lifetime income,” id. at 773.

To consider the matter from a somewhat different perspective, it is w orth

noting the special status of class counsel and the limits on that status. Ordinarily,

all matters relating to the class action must be handled by class counsel. See Fed.

R. Civ. P. 23(g); M cNeil v. Guthrie, 945 F.2d 1163 (10th Cir. 1993). The class

action can be unmanageable if the class cannot speak with one voice. On the

other hand, one who is an intended beneficiary of a consent decree may pursue

personal relief in an action to enforce the decree. Cf. Beckett v. Air Line Pilots

Ass’n, 995 F.2d 280 (D.C. Cir. 1993) (pilots who were nonparties could seek

enforcement of class-action consent decree to receive full payment of money due

them). (W e note that the Decree’s provision for attorney fees arising from claims

for pre-Decree discrimination does not appear to require such claims to be

brought only by class counsel.) Applying these propositions to the case before us,

only class counsel should be able to enforce the Decree’s requirements regarding

the proper functioning of the Decree’s enforcement mechanisms. But an attorney

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retained by a particular officer could seek relief based on the TPD’s post-Decree

failure to, say, promote him based on merit and fitness. Such a personal attorney

could have no claim for reimbursement of fees under the D ecree. W hen class

counsel is performing a task that can be performed only by class counsel—

namely, addressing systemic failure of the Decree’s enforcement mechanisms—

compensation under the D ecree may be appropriate. W hen, however, class

counsel is performing a task that an officer’s personal counsel could perform,

class counsel should be no more entitled to fees under the Decree than would the

personal attorney.

How , then, to characterize the efforts by Plaintiffs’ counsel, who are class

counsel? From what we can tell, much, or even most, of the efforts were to assist

various clients in pursuing complaints within the mechanisms established or

modified by the Decree. Utilizing the Decree’s enforcement mechanisms is not in

itself protecting the fruits of the Decree; rather, it is taking advantage (quite

properly) of the Decree. On the other hand, if Plaintiffs’ counsel can point to

efforts designed to ensure that the Independent Auditor, the Dispute Resolution

Committee, or the Internal Affairs Section is properly performing its duties,

compensation for those efforts may be appropriate. Some efforts by Plaintiffs’

counsel may involve elements of both utilizing the enforcement mechanisms and

ensuring their proper functioning; in that event, apportionment of fees may be

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called for. W e leave to the district court in the first instance to determine what

part of those efforts w ere in fact monitoring the enforcement mechanisms to

ensure against systemic failures. W e note, however, that in assessing what

compensation is due for monitoring efforts, the court must take into account that

the D ecree itself provides for neutral monitoring by the Independent Auditor;

attorney efforts are compensable only if they are reasonable. M oreover, though

counsel’s efforts may be compensable despite the absence of a court order, the

effort must still be effective— for example, by convincing the City to comply

without obtaining a court order. In particular, failed efforts could rarely justify

attorney fees.

Finally, we observe that our approach is not inconsistent with the ethical

obligations imposed on class counsel by our opinion in Duran, 885 F.2d at 1495.

Plaintiffs contend that Duran required their attorneys to engage in the actions for

which we would deny them compensation. They quote Duran for the proposition

that “counsel for the plaintiffs has a continuing duty and responsibility to make

sure that the defendants comply, and continue to comply, with the decree.” 885

F.2d at 1495. But that declaration was founded on language in specific provisions

of the consent decree in that case. In any event, our holding is not contrary to the

quoted proposition. Plaintiffs’ counsel is entitled to compensation for reasonable

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efforts to preserve the fruits of the decree. 8

III. C O N C L U SIO N

W e REVERSE the district court’s holding that Buckhannon precludes an

award of attorney fees to Plaintiffs for the post-D ecree efforts of their counsel,

and REM AND for a determination of whether Plaintiffs are entitled to attorney

fees for those efforts, and if so, the amount to be awarded. W e GRANT

Plaintiffs-A ppellants’ U nopposed M otion for Leave of Court to File D ocuments

Under Seal.

8
There is considerable uncertainty regarding the ethical duties of class
counsel. See Nancy J. M oore, Ethics M atters, Too: The Significance of
Professional Regulation of Attorney Fees and Costs in M ass Tort Litigation— A
Response to Judith Resnick, 148 U . Pa. L. Rev. 2209, 2221 (2000); Nancy J.
M oore, Who Should Regulate Class Action Lawyers?, 744 PLI/Lit 701, 704–05,
PLI Order No. 8588 (July 2006) (noting that neither the M odel Code of
Professional Responsibility nor the M odel Rules of Professional Conduct
specifically addresses the ethical obligations of class-action lawyers).

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05-5064 Johnson v. City of Tulsa

O ’B R IE N , J., concurring

I take our decision to preclude attorney fees for class counsel to the extent

they are incurred in duplicating, or attempting to establish an alternative to, the

Decree’s enforcement mechanisms. For example, a claim of systemic failure

brought by class counsel might be little more than a thinly disguised attempt to

have the district court review a decision (even an erroneous one) rendered in

accordance with the Decree’s enforcement mechanisms. W ith that understanding,

I join the opinion.