Danielle Pickett v. Sheridan Health Care Center , 813 F.3d 640 ( 2016 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-3705
DANIELLE PICKETT,
Plaintiff-Appellant,
v.
SHERIDAN HEALTH CARE CENTER,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 07 CV 01722 — Manish S. Shah, Judge
____________________
ARGUED SEPTEMBER 21, 2015 — DECIDED FEBRUARY 16, 2016
____________________
Before POSNER, WILLIAMS, and SYKES, Circuit Judges.
WILLIAMS, Circuit Judge. Danielle Pickett filed a Title VII
retaliation lawsuit against her employer Sheridan Health
Care Center. Ernest T. Rossiello & Associates represented her.
After a two-day trial, the jury awarded Pickett $65,000 in
damages. She then filed a motion for attorney’s fees. The dis-
2 No. 14-3705
trict court granted in part and denied in part the motion, find-
ing, among other facts, that the hourly market rate for Rossi-
ello’s services was $400, not the $540–$620 that was requested.
Pickett appealed the award of attorney’s fees, arguing that the
$400 hourly rate was arbitrarily decided and erroneously re-
duced based on the existence of a contingent fee agreement
between Pickett and Rossiello, among other improper factors.
The appeal was successful. We concluded that the district
court erred by making impermissible considerations when
calculating the hourly rate. We vacated the reward and re-
manded for further proceedings. Pickett v. Sheridan Health Care
Ctr., 664 F.3d 632 (7th Cir. 2011).
On remand, the district court determined that the evi-
dence supported a $425 hourly rate for Rossiello and awarded
fees based on that hourly rate. It also determined that the
claim to attorney’s fees for the work done on remand had
been waived. Pickett appealed, arguing that the district court
failed to rely on the district court’s pre-remand factual find-
ings and erroneously relied on a case that was wrongly de-
cided. This time, we disagree. We find no legal error or abuse
of discretion, and therefore, affirm the district court’s fee
award.
I. BACKGROUND
This appeal stems from harassment and retaliation claims
brought by Danielle Pickett in 2007 under Title VII of the Civil
Rights Act of 1964. Pickett worked as a housekeeper at the
Sheridan Health Care Center, a nursing home. She alleged
that residents of the nursing home sexually harassed her and
that Sheridan fired her for complaining about it. Sheridan
won summary judgment on the harassment claim, but the re-
taliation claim went to trial. At trial, Pickett prevailed on the
No. 14-3705 3
retaliation claim and was awarded $65,000. We affirmed this
judgment in Pickett v. Sheridan Health Care Center, 610 F.3d 434
(7th Cir. 2010) (“Pickett I”).
A year after the trial, but before we affirmed the judgment
in Pickett I, Pickett filed a motion for attorney’s fees, which
was stayed because of the pending appeal. The motion sought
fees for work done by her attorney Ernest Rossiello and his
associates and paralegals. The motion did not request pre-
judgment interest. Following Pickett I, the district court lifted
the stay, and Pickett renewed her motion to include addi-
tional hours accumulated. Pickett also sought reimbursement
for an associate working under Rossiello’s supervision while
Rossiello was suspended from practice 1 as well as fees paid
to outside counsel. Again, the motion did not request pre-
judgment interest.
On March 29, 2011, the district court granted in part and
denied in part Pickett’s motion for fees. Relevant to this ap-
peal, the district court determined that Rossiello’s market rate
was $400 per hour and that 175 hours of the approximately
225 hours submitted were proper. The district court excluded
hours it found duplicative and hours accumulated while Ros-
siello was suspended from practice. Pickett appealed the fee
award. Pickett v. Sheridan Health Care Ctr., 664 F.3d 632 (7th
Cir. 2011) (“Pickett II”).
In Picket II we vacated the $400 per hour fee award. We
found that the district court improperly calculated the rate for
1 Rossiello was suspended from the practice of law twice during this
lawsuit, once from February 2008 to June 2008 and also from October 2011
to July 2012.
4 No. 14-3705
several reasons. First, the district court relied on the Con-
sumer Price Index and the Laffey Matrix (collectively, “price
indexes”) in its calculations, evidence that neither party pro-
vided nor was given an opportunity to address. Second, the
district court considered the fact that Rossiello would receive
a contingency fee in addition to the court ordered fees, which
we found to be an impermissible consideration. Third, the
district court improperly disregarded evidence of Rossiello’s
hourly rate in cases where the defendant did not contest the
fee award. We also found the district court erred in declining
to award fees to an outside counsel because they were not pre-
paid. Finally, we determined that the district court failed to
provide a clear explanation of the basis of its hourly rate cal-
culation. We vacated and remanded the case for the district
court to recalculate the hour rate and attorney fee award in
light of our opinion. Pickett II, 664 F.3d at 654–55.
Following remand, in January 2012, Pickett filed a motion
for attorney’s fees on remand. The motion requested fees for
the life of the case and for the first time requested prejudg-
ment interest. The case was transferred to several judges be-
fore the district court ruled on the motion and issued the fee
order that is the subject of this appeal on November 13, 2014.
The district court determined that as of November 2014,
Rossiello’s current market hourly rate was $425 per hour. The
court considered Pickett’s evidence of prior fee awards Rossi-
ello received and affidavits from other attorneys who have
practiced employment law as long as Rossiello and charged
$450–$745 per hour for employment discrimination work.
The district court considered the affidavits but did not find
that they established Rossiello’s rate because each affiant’s
reputation was not similar to Rossiello’s, i.e., they did not
No. 14-3705 5
have a disciplinary history similar to Rossiello’s. The district
court noted that Rossiello did work that many litigators with
his experience would assign to younger associates who bill at
a cheaper rate, suggesting that the market rate for that work
would be lower. The affidavits suffered from other infirmities
that led the district court to find that they were not sufficient
to establish Rossiello’s hourly rate. The district court also re-
viewed Rossiello’s prior fee awards in cases Sheridan submit-
ted for consideration, including a recent decision finding that
Rossiello’s rate in another employment case was $425, see
Johnson v. GDF, Inc., No. 07 CV 3996, 2014 WL 463676, at *21
(N.D. Ill. Feb. 5, 2014), and recent awards in similar civil rights
cases tried by similarly experienced attorneys. It also re-
viewed the Consumer Price Index.
Next, the district court ordered payment for the hours al-
ready approved by the district court prior to Pickett II at the
rate of $425 per hour. The district court then considered sev-
eral requests by Pickett to increase the hours for which Rossi-
ello would be compensated. The district court approved the
time requested for Rossiello’s work on Pickett II, less the time
spent on administrative tasks. The district court also awarded
prejudgment interest as to the Pickett II fees because Pickett
had timely requested it. The district court rejected additional
hours submitted for paralegal and associate work completed
in preparation for trial because the hours were not included
in the pre-Pickett II fee applications. The district court also
found that any claim for prejudgment interest as to fees in-
curred before Pickett II was waived because prejudgment in-
terest on those fees was not requested until after remand. It
also found that the following statement made in the reply to
the motion for attorney’s fees on remand waived any claim
for fees incurred to adjudicate the motion for attorney’s fees
6 No. 14-3705
on remand: “Counsel does not seek any reimbursement for
time spent while suspended or on the instant motion.” The
court noted that even if it did not find the claim for fees on
remand waived, it would have exercised its discretion and de-
nied the fees because Pickett abandoned key issues identified
in Pickett II, raised arguments and added time that could have
been put before the court prior to Pickett II, and “submitted
unsolicited and irrelevant supplemental authority,” all of
which was not a good use of the court’s time. Pickett now ap-
peals the second fee order.
II. ANALYSIS
On appeal, Pickett again primarily challenges the district
court’s determination of the proper hourly rate for Rossiello’s
services. Specifically, Pickett argues that the district court:
(1) exceeded the scope of the Pickett II remand by disregard-
ing the three affidavits submitted in support of Rossiello’s
hourly rate; (2) erred by considering the hourly rate the dis-
trict court awarded Rossiello in a different case to determine
the proper hourly rate in Pickett’s case; (3) erred by denying
her request for prejudgment interest on the attorney fee
award; and (4) erred by denying the request for attorney’s fees
for services rendered after Pickett II. We review an award of
attorney’s fees for abuse of discretion. Pickett II, 664 F.3d at
639. We review de novo any legal analysis that is part of the
district court’s decision. Jaffee v. Redmond, 142 F.3d 409, 412–13
(7th Cir. 1998); see also Pickett II, 664 F.3d at 639.
Pickett argues that the district court exceeded the scope of
the remand by re-evaluating all of the evidence, the affidavits
in particular, and finding Rossiello’s disciplinary history rele-
vant. In Pickett II, because of the district court’s errors, “we
vacate[d] the award of attorneys’ fees for Rossiello's services,
No. 14-3705 7
and we remand[ed] for further proceedings consistent with
th[e] opinion.” 664 F.3d 654–55. We noted that we remanded
the case “to give the district court an opportunity to reevalu-
ate the evidence consistent with our conclusions.” Id. at 647.
We also noted that our view of the evidence was that substan-
tial evidence supported rates much lower than the ones Ros-
siello requested and some evidence supported the rates re-
quested. Id. at 646. We instructed the district court to re-deter-
mine Rossiello’s reasonably hourly rate without considering
the contingent fee. Id. at 640, 645. We further instructed the
district court to allow the parties to comment on whether and
how the price indexes should be used to determine Rossiello’s
reasonable hourly rate. Id. at 651. “[T]he general rule [is] that
upon a reversal and remand for further consistent proceed-
ings the case goes back to the trial court and there stands for
determination of the issues presented as though they had not
been determined before, pursuant, of course, to the principles of
law enunciated in the appellate court’s opinion which must be
taken as the law of the case at the new trial.” Graefenhain v.
Pabst Brewing Co., 870 F.2d 1198, 1207 (7th Cir. 1989).
On remand, the district court followed our Pickett II in-
structions. It did not consider the contingent fee. The parties
had the opportunity to comment on the applicability of the
price indexes. The district court considered evidence of Ros-
siello’s fee awards in other cases and did not consider inde-
pendent evidence. It also explained its fee determination.
Thus, the district court acted within the scope of the remand.
Moreover, we did not limit the district court’s review of the
evidence, so the district court did not exceed the scope of the
remand by re-evaluating the evidence. The district court was
free to reconsider the affidavits and afford them whatever
weight it deemed appropriate. See Pickett II, 664 F.3d at 646 (“A
8 No. 14-3705
district court ‘is entitled to determine the probative value of
each evidentiary submission.’” (quoting Batt v. Micro Ware-
house, Inc., 241 F.3d 891, 895 (7th Cir. 2001))); accord Small v.
Richard Wolf Med. Instruments Corp., 264 F.3d 702, 707 (7th Cir.
2001) (“Although the district court must consider submitted
evidence of the hourly rates of attorneys with comparable ex-
perience, the court is ‘entitled to determine the probative
value of each submission and must arrive at its own determi-
nation as to a proper fee.’”). And we also find that the district
court’s determination was reasonable, so there was no abuse
of its discretion.
To the extent Picket argues the district court erred by con-
sidering Rossiello’s disciplinary history in determining a rea-
sonable hourly rate for him, we disagree. Since Rossiello’s
work is based on a contingent fee, “the Supreme Court and
this court have instructed courts to rely on the hourly rates
that attorneys of comparable skill, experience, and reputa-
tions charge for similar work.” Pickett II at 641. Disciplinary
action has an impact on the lawyer’s reputation. See, e.g., Pre-
cision Specialty Metals, Inc. v. United States, 315 F.3d 1346, 1352
(Fed. Cir. 2003) (reviewing a district court’s reprimand of a
lawyer in an order, noting that “a judicial reprimand is likely
to have [a seriously adverse effect] upon a lawyer’s reputation
and status in the community and upon his career”). Since dis-
cipline is a factor in a lawyer’s reputation and the court had
to consider Rossiello’s reputation in calculating his hourly
rate, the district court did not err by considering Rossiello’s
disciplinary history.
Pickett’s remaining arguments warrant just a short discus-
sion. She argues that the district court was not permitted to
consider the hourly rate the district court decided represented
No. 14-3705 9
a reasonable rate for Rossiello’s services in Johnson v. GDF,
No. 07-CV-03996, 2014 WL 463676 (7th Cir. Feb. 5, 2014) be-
cause, in her view, it was erroneously decided. Although the
Johnson plaintiff initially appealed that order, the parties set-
tled and requested that we dismiss the appeal, which we did.
“[B]y agreeing to a settlement the parties to an appeal re-
nounce the right to challenge the decision that was appealed.”
Marseilles Hydro Power LLC v. Marseilles Land & Water Co., 481
F.3d 1002, 1003 (7th Cir. 2007) (citing U.S. Bancorp Mortg. Co.
v. Bonner Mall P’ship, 513 U.S. 18 (1994)). Further, the order
was not vacated.
We typically do not vacate district court orders merely be-
cause the parties settled on appeal because at the time the dis-
trict court entered its order, it had a live controversy before it,
“and, while not binding on anyone, [the district court’s] rea-
soning may be helpful to other courts to the extent that it is
persuasive.” Clark Equip. Co. v. Lift Parts Mfg. Co. Inc., 972 F.2d
817, 820 (7th Cir. 1992). The order was helpful to the district
court here. Rossiello represented the plaintiff in Johnson,
which was also an employment case. 2
We have said, “a previous attorney’s fee award is useful
for establishing a reasonable market rate for similar work.”
Pickett II, 664 F.3d at 648. So, the district court was acting in
accordance with the principles outlined in Pickett II when it
considered Rossiello’s fee award in Johnson. The district court
did not err by considering, as part of its analysis, Rossiello’s
hourly rate as determined in Johnson. See Small, 264 F.3d at 708
2 The parties indicate that the affidavits submitted here are the same
ones used in Johnson.
10 No. 14-3705
(finding no abuse of discretion where the district court con-
sidered Rossiello’s fee award in similar cases to determine
Rossiello’s hourly rate in Small).
Pickett next argues that Rossiello is entitled to prejudg-
ment interest on her attorney’s fee award because she was not
awarded fees based on Rossiello’s current hourly rate. She
also maintains that she did not waive a claim to prejudgment
interest by failing to request prejudgment interest before re-
mand because prejudgment interest is presumptively
awarded. We review a district court’s decision on whether to
award prejudgment interest for abuse of discretion. Shot v.
Rush-Presbyterian-St. Luke’s Med. Ctr., 338 F.3d 736, 745 (7th
Cir. 2003).
Prejudgment interest “is simply an ingredient of full com-
pensation that corrects judgments for the time value of
money.” Matter of P.A. Bergner & Co., 140 F.3d 1111, 1123 (7th
Cir. 1998). “The basic purpose of prejudgment interest is to
put a party in the position it would have been in had it been
paid immediately.” Am. Nat’l Fire Ins. Co. v. Yellow Freight Sys.,
Inc. 325 F.3d 924, 935 (7th Cir. 2003). The decision to award
prejudgment interest lies within the discretion of the district
court. United States v. Bd. of Educ. of Consol. High Sch. Dist. 230,
Palos Hills, Ill., 983 F.2d 790, 799 (7th Cir. 1993). But, “[p]re-
judgment interest should be presumptively available to vic-
tims of federal law violations,” Gorenstein Enters., Inc. v. Qual-
ity Care-USA, Inc., 874 F.2d 431, 436 (7th Cir. 1989), “unless
there is a sound reason not to do so,” Matter of Milwaukee
Cheese Wis., Inc., 112 F.3d 845, 849 (7th Cir. 1997). We have said
that if a plaintiff has failed to plead prejudgment interest relief
in her complaint, the plaintiff must request prejudgment in-
terest, at the latest, in a post-trial motion or else it is waived.
No. 14-3705 11
See Brooms v. Regal Tube Co., 881 F.2d 412, 424 n.9 (7th Cir.
1989), overruled in part on other grounds by Saxton v. Am. Tel. &
Tel. Co., 10 F.3d 526, 533 & n.12 (7th Cir. 1993). We have found
no abuse of discretion where a district court has denied a
party’s request for prejudgment interest that was made for the
first time after a remand and a second entry of judgment. See
McKnight v. Gen. Motors Corp., 973 F.2d 1366, 1373 (7th Cir.
1992). The district court determined that the request for pre-
judgment interest for the portion of the original fee petition
that remained due was untimely. Pickett admits that she did
not request prejudgment interest before Pickett II, 3 and she
did not request it in her complaint. We find no abuse of dis-
cretion as to the prejudgment interest finding in light of the
untimely request.
Moreover, courts must base attorney’s fees awards on “the
market rate for services rendered.” Smith v. Vill. of Maywood,
17 F.3d 219, 221 (7th Cir. 1994) (quoting Missouri v. Jenkins, 491
U.S. 274, 283 (1989)). Since payment for services in civil rights
litigation often comes by court order years after the services
were performed, the court must account for the delay in pay-
ment of attorney’s fees. Id. To account for the delay, a dis-
trict court has the discretion to choose one of two methods to
calculate the fee award. Id. It may calculate the fee award for
services rendered in prior years using the attorney’s current
hourly billing rate. Mathur v. Bd. of Trs. of S. Ill. Univ., 317 F.3d
738, 744–45 (7th Cir. 2003). Or it may also calculate the fee
award using the hourly rate the lawyer charged at the time
3 The district court found that “Rossiello did not seek prejudgment
interest during the first round of litigation over the fee petition.” On ap-
peal, Pickett conceded that the district court “correctly stated that prejudg-
ment interest had not been requested early on.”
12 No. 14-3705
the lawyer performed the services for the client (the “histori-
cal rate”) and add interest to that amount. See id. Since the dis-
trict court awarded fees based on Rossiello’s current hourly
rate, not the historical rate, no interest was due on the $425.
Pickett’s last argument is that the district court erred by
finding that she waived her claim for attorney’s fees incurred
for pursuing fees on remand. She asserts on appeal that she
did not intend to waive any fees for the fee motion. However,
in her reply to her motion for attorney’s fees on remand,
Pickett stated, “Counsel does not seek any reimbursement for
time spent while suspended or on the instant motion.” In light
of this assertion, the district court found that she waived her
claim to fees for pursuing fees on remand. We agree. A plain
reading of the statement is that Pickett’s counsel did not in-
tend to seek fees for the work done in connection with the
motion for attorney’s fees on remand. So, Pickett waived her
claim to attorney’s fees.
III. CONCLUSION
For the reasons stated, we AFFIRM the district court.