City of Chicago v. Robert Winston ( 2014 )


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  •                                In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________________
    Nos. 13-3553 & 14-1371
    ROBERT L. WINSTON,
    Plaintiff-Appellee,
    v.
    OFFICER O’BRIEN, et al.,
    Defendants,
    APPEAL OF: CITY OF CHICAGO.
    ____________________
    Appeal from the United States District Court for the
    Northern District of Illinois, Eastern Division.
    No. 1:10-cv-08218 —Elaine E. Bucklo, Judge.
    ____________________
    ARGUED OCTOBER 3, 2014 — DECIDED NOVEMBER 7, 2014
    AMENDED OPINION ISSUED NOVEMBER 14, 2014
    ____________________
    Before POSNER, ROVNER, and TINDER, Circuit Judges.
    TINDER, Circuit Judge. The City of Chicago appeals the
    district court’s decision to hold it responsible for attorney’s
    fees assessed under 
    42 U.S.C. § 1988
     against one of its offic-
    2                                       Nos. 13-3553 & 14-1371
    ers, Matthew O’Brien. The district court concluded that the
    City was liable for the fees under § 9-102 of Illinois’s Local
    Governmental and Governmental Employees Tort Immunity
    Act, 745 ILCS 10/9-102.
    I.   BACKGROUND
    In 2010, Winston sued Officer O’Brien under 
    42 U.S.C. § 1983
    , alleging that O’Brien and Officer Nicholas Yates used
    excessive force while detaining Winston at a Chicago police
    station. According to Winston, O’Brien tasered him repeat-
    edly and punched him while he was in handcuffs. When the
    case went to trial, attorneys recruited to represent Winston
    asked the jury to award $10,000 in compensatory damages
    against each officer and an unspecified amount of punitive
    damages. The jury found in favor of Yates, but determined
    that O’Brien was liable for $1 in compensatory damages and
    $7,500 in punitive damages.
    Winston then petitioned for $336,918 in attorney’s fees
    under § 1988. In response, Officer O’Brien argued that Win-
    ston could not recover fees because the compensatory dam-
    ages awarded were de minimis. But the district court reject-
    ed that argument, explaining that Winston’s “victory was
    real, not Pyrrhic,” because the jury awarded him “sizable
    punitive damages against Officer O’Brien, whose actions
    were the primary focus of plaintiff’s case.” The court further
    determined that Winston’s attorneys could recover fees for
    all their requested hours but sought too high of an hourly
    rate. The court granted a reduced fee award of $187,467.
    Seeking to collect on this award, Winston filed a “petition
    for indemnification and motion for writ of execution against
    the City of Chicago.” In the petition, Winston asked the dis-
    Nos. 13-3553 & 14-1371                                       3
    trict court to order the City to pay the fee award or indemni-
    fy Officer O’Brien for the fees. Winston argued that the City
    was required to pay for fees under state law, which pro-
    vides:
    A local public entity is empowered and di-
    rected to pay any tort judgment or settlement
    for compensatory damages (and may pay any
    associated attorney’s fees and costs) for which
    it or an employee while acting within the scope
    of his employment is liable in the manner pro-
    vided in this Article.
    745 ILCS 10/9-102.
    Additionally, Winston contended that the City’s collec-
    tive bargaining agreement (“CBA”) with its police officers
    required indemnification. Article 22 of that agreement ad-
    dresses indemnification, and under sections 22.1 and 22.4,
    the City “shall be responsible for, hold officers harmless
    from and pay for damages or monies which may be ad-
    judged, assessed, or otherwise levied against any officer
    cover by this Agreement,” so long as the officer was acting
    within the scope of his or her employment and cooperated
    with the City’s defense. Section 22.5 allows for expedited ar-
    bitration of grievances alleging violations of Article 22.
    In response to Winston’s petition, the City noted that § 9-
    102 states only that municipalities “may pay” attorney’s fees
    and that those fees must be “associated” with an award of
    compensatory damages. The City argued that the fees at is-
    sue are not adequately associated with compensatory (ver-
    sus punitive) damages to require indemnification and that
    § 9-102 makes indemnification discretionary rather than
    4                                       Nos. 13-3553 & 14-1371
    mandatory. The City also contended that Winston had no
    standing to enforce the CBA and that the court should re-
    frain from determining whether the CBA applied.
    The district court sided with Winston. The court first re-
    jected the City’s argument that the fees were not associated
    with an award of compensatory damages, explaining that
    there was “no clear divide between the legal work per-
    formed in support of Winston’s claim for compensatory
    damages and the legal work performed in support of his
    claim for punitive damages.” The court then reasoned, quot-
    ing Lally v. City of Chicago, No. 10 C 5011, 
    2013 WL 1984422
    ,
    at *11 (N.D. Ill. May 13, 2013), that the City’s “‘liability for
    attorneys’ fees comes from its responsibility for the compen-
    satory damages awarded.’” The court also observed that the
    City did not deny that it “was at the helm of defendant’s de-
    fense” and “made key strategic decisions that increased
    Winston’s legal fees.” For that reason, the court concluded,
    “it would be unfair to pass the cost of the City’s litigation
    strategy on to [Winston], who may have little chance of re-
    covering from defendant the fees to which he is entitled un-
    der § 1988.” The court did not address the City’s argument
    about the discretionary nature of the attorney-fee language
    in § 9-102 or rely on the indemnification provisions in the
    CBA.
    The next day, the Chicago Police Department issued a re-
    sponse to a grievance that the police union had filed on Of-
    ficer O’Brien’s behalf seeking indemnification for compensa-
    tory and punitive damages under Article 22 of the CBA. In
    the response, O’Brien’s immediate supervisor and an acting
    commander agreed that his grievance could not be resolved
    at their level of review. A month later, a police commander
    Nos. 13-3553 & 14-1371                                        5
    explained in a letter to the union’s grievance representative
    that “[t]he City will pay for the compensatory damages
    awarded to plaintiff, along with the related attorneys’ fees in
    compliance with 745 ILCS 10/9-102.” The commander added,
    however, that the City would not pay for punitive damages.
    There is no indication that O’Brien or the police union has
    ever sought arbitration as permitted by the CBA.
    After the City appealed the initial indemnification order,
    the district court granted Winston’s request for an additional
    $90,777 in supplemental attorney’s fees incurred after Win-
    ston initially petitioned for fees. In doing so, the court again
    rejected the City’s argument that it should not be held re-
    sponsible for the fees because it was not a party when the
    court first granted Winston’s request for fees. The court not-
    ed that “the City does not dispute that it controlled defend-
    ants’ litigation strategy.” The City appealed this decision in
    addition to the earlier indemnification decision, and we con-
    solidated our review of the two orders.
    II.   DISCUSSION
    On appeal, the City contends that the district court
    lacked authority to hold it responsible for the attorney’s fees
    assessed against Officer O’Brien. The City maintains that the
    court’s orders went beyond what is authorized under either
    § 1988 or § 9-102.
    Winston does not contend that § 1988 authorizes indem-
    nification by its own terms. Generally, “[t]hat a plaintiff has
    prevailed against one party does not entitle him to fees from
    another party, let alone from a nonparty.” Kentucky v. Gra-
    ham, 
    473 U.S. 159
    , 168 (1985). For that reason, the Supreme
    Court has held that success in civil-rights litigation against
    6                                        Nos. 13-3553 & 14-1371
    individual government officials does not necessarily entitle a
    plaintiff to fees from a governmental entity. 
    Id.
     We have
    acknowledged, however, that a state indemnification statute
    might permit recovery of fees independent of § 1988.
    See Richardson v. City of Chicago, 
    740 F.3d 1099
    , 1102 (7th Cir.
    2014); Graham v. Sauk Prairie Police Comm’n, 
    915 F.2d 1085
    ,
    1108 (7th Cir. 1990).
    We also agree with the City that § 9-102 does not man-
    date indemnification of attorney’s fees. Under Illinois law,
    “[t]he primary goal of statutory construction is to ascertain
    and give effect to the intent of the legislature,” and “[t]he
    most reliable indicator of legislative intent is the language of
    the statute, which is to be given its plain, ordinary and
    popularly understood meaning.” In re Detention of Powell,
    
    839 N.E.2d 1008
    , 1015 (Ill. 2005); see United States v. Clintwood
    Elkhorn Mining Co., 
    553 U.S. 1
    , 11 (2008) (recognizing the
    presumption that plain language expresses legislative in-
    tent). Section 9-102 “direct[s]” municipalities to pay compen-
    satory damages against employees acting within the scope of
    their employment, but adds that municipalities “may pay
    any associated attorney’s fees and costs” (emphasis added).
    There is no dispute that “[t]he word ‘may’ customarily con-
    notes discretion.” Jama v. Immigration & Customs Enforcement,
    
    543 U.S. 335
    , 346 (2005); see Fogerty v. Fantasy, Inc., 
    510 U.S. 517
    , 533 (1994). Winston asserts that we should consider that
    the City did not appeal an earlier ruling holding it responsi-
    ble for fees under § 9-102. See Lally, 
    2013 WL 1984422
    , at *11.
    But that argument is meritless. Winston cites no precedent
    suggesting that the City’s decision not to appeal an earlier
    adverse ruling should overcome the plain meaning of
    § 9-102.
    Nos. 13-3553 & 14-1371                                      7
    Winston also argues that the City’s reading of § 9-102 is
    unfair because it would deprive plaintiffs’ attorneys of full
    compensation when they prevail against judgment-proof de-
    fendants. Winston points to our analysis in Graham, 
    915 F.2d at 1108
    , which upheld a district court’s decision to require,
    based on a Wisconsin indemnity statute, that a municipality
    indemnify attorney’s fees assessed against one of its police
    officers. The plaintiff in Graham could not recover absent in-
    demnification, we explained, and thus requiring indemnifi-
    cation of fees served “§ 1988’s purpose of ensuring effective
    access to the judicial process for persons with civil rights
    grievances” and “the indemnity statute’s policy of protecting
    a public employee from personal financial loss because of a
    judgment resulting from an act committed within the scope
    of employment.” Id.
    But these policy concerns do not undermine our interpre-
    tation of § 9-102. In Graham, the Wisconsin indemnity statute
    dictated that municipalities “shall” pay the “damages and
    costs” of employees, and the parties did not dispute that
    “costs” included attorney’s fees. 
    915 F.2d at
    1107–08. Section
    9-102, in contrast, includes no requirement to pay “costs,” or
    anything beyond “any tort judgment or settlement for com-
    pensatory damages.” Moreover, the Illinois Supreme Court
    rejected arguments similar to Winston’s when it refused to
    construe the term “compensatory damages” in an earlier
    version of § 9-102, which was silent about fees, as including
    attorney’s fees. Yang v. City of Chicago, 
    745 N.E.2d 541
    , 547
    (Ill. 2001). The court in Yang reasoned that the legislative
    purposes of § 9-102 and § 1988 did not justify extending § 9-
    102 beyond its plain language. The policy arguments reject-
    ed in Yang are no more persuasive as a reason to abandon a
    plain reading of § 9-102 now that the statute has been
    8                                        Nos. 13-3553 & 14-1371
    amended to clarify that municipalities “may” indemnify fees
    when they so choose.
    Winston next argues that, even if § 9-102 gives the City
    discretion to choose to indemnify fees, the City “made this
    choice in advance” by agreeing in the CBA to pay “damages
    or monies” assessed against its officers. He clarifies that he is
    not asking us to enforce the CBA (of course, he would have
    no standing to do so) but to interpret § 9-102 by taking the
    CBA into account.
    However, the fact that the terms of the CBA are subject to
    dispute cautions against relying on it to interpret § 9-102. Ar-
    ticle 22 of the CBA never explicitly mentions attorney’s fees.
    The phrase “damages or monies” in Section 22.1 could be
    read as covering fees. But that phrase also could be read as
    covering punitive damages, and as the City notes, indemni-
    fication of punitive damages is prohibited under Illinois law.
    See 745 ILCS 10/2-302. This conflict suggests that the CBA
    should not be given its broadest possible reading.
    More importantly, regardless of interpretation of the
    CBA, we are not convinced that the CBA somehow modifies
    the plain language of § 9-102. As Winston acknowledges, he
    asks for indemnification solely under § 9-102, not the CBA,
    which has its own procedures for determining an employ-
    ee’s entitlement to indemnification. The CBA’s indemnifica-
    tion provisions never cite § 9-102 nor give any hint that they
    are intended to implement § 9-102. Winston has not per-
    suaded us that the CBA transforms § 9-102 from a rule that
    municipalities “may pay” attorney’s fees to one requiring
    that they “must” or “shall” pay fees.
    Nos. 13-3553 & 14-1371                                            9
    Winston also contends that the City conceded that the
    CBA covers attorney’s fees in the police commander’s letter
    agreeing to pay fees “in compliance with” § 9-102. As with
    the CBA, however, the City disputes Winston’s reading of
    the letter, arguing that it amounts to nothing more than a
    boilerplate acknowledgment that the City will abide by state
    law. Further, no matter the meaning of the letter, like the
    CBA, the letter itself does not change the meaning of § 9-102.
    Moreover, the letter underscores a possible danger of
    Winston’s approach. That the letter was issued after Winston
    moved for indemnification suggests that the district court
    risked short-circuiting the grievance process if it had inter-
    preted the CBA before Winston received a response. Even
    now, it remains unclear whether the police union has ex-
    hausted its remedies under the CBA. In the context of feder-
    al labor law—though not controlling here because the CBA
    is between a city and its police officers’ union, see 
    29 U.S.C. § 152
    (2) (defining “employer” as excluding “any State or po-
    litical subdivision thereof”); see also Police Dep’t of City of Chi-
    cago v. Mosley, 
    408 U.S. 92
    , 102 n.9 (1972)—the Supreme
    Court has cautioned that permitting employees to sidestep
    grievance procedures would undermine the effectiveness of
    arbitration, which has an important role in federal labor reg-
    ulations. Cf. Lingle v. Norge Div. of Magic Chef, Inc., 
    486 U.S. 399
    , 411 (1988). This principle, though not directly applica-
    ble, further cautions against basing our interpretation of § 9-
    102 on the CBA or the commander’s letter.
    In sum, the plain language of § 9-102 gives the City dis-
    cretion in deciding to indemnify attorney’s fees associated
    with an award of compensatory damages, and the CBA with
    the police union does not convert § 9-102 into a mandate to
    10                                      Nos. 13-3553 & 14-1371
    pay fees. We thus conclude that the district court erred in
    ordering the City to indemnify Officer O’Brien’s attorney’s
    fees, and the two orders related to indemnification, to the
    extent that they hold the City responsible for attorney’s fees,
    are REVERSED.