The City of Chicago v. Sessions III

Filing 147

MEMORANDUM Opinion and Order: For the reasons stated in the attached order, Plaintiff's motion for award of attorneys' fees [Dkt. No. 99] is granted in part and denied in part. Plaintiff is entitled to $391,168.55 in attorneys' fees. Plaintiff's motion to supplement [Dkt. No. 145] is denied as moot. No appearance is necessary on 5/4/21. Civil case terminated. Signed by the Honorable Harry D. Leinenweber on 4/28/2021: Mailed notice(maf)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
THE CITY OF CHICAGO,
Plaintiff,

Case No. 18 C 6859

v.

Judge Harry D. Leinenweber

MERRICK B. GARLAND, Attorney
General of the United States,

Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff’s motion for award of attorneys’ fees (Dkt. No. 99)
is granted in part and denied in part. Plaintiff is entitled to
$391,168.55 in attorneys’ fees.
I.

BACKGROUND

In addition to describing the most relevant facts below, the
Court incorporates the facts from its earlier rulings. See City of
Chicago v. Sessions, 264 F.Supp.3d 933 (N.D. Ill 2017) (“Sessions
I”), City of Chicago v. Sessions, 321 F.Supp.3d 855 (N.D. Ill.
2018) (“Sessions III”), and City of Chicago v. Barr, 405 F.Supp.3d
748

(N.D.

Ill.

2019)

(“Barr

I”).

Plaintiff

City

of

Chicago

(“Chicago” or the “City”) filed the instant motion seeking to
recoup a portion of the expenses it incurred over the course of
three years and two lawsuits disputing certain conditions attached
to the Byrne Justice Assistance Grant (“JAG”) funds. For ease of

reference, citations to “2017 Dkt. No.” correspond to the docket
for the City’s challenge to the FY 17 Byrne JAG conditions, Chicago
v. Sessions, 17-cv-05720 (N.D. Ill. 2017) (Leinenweber, J.), and
“2018 Dkt. No.” refers to the current docket.
The City first filed suit against the Attorney General in
August 2017, challenging the Government’s attachment of certain
notice,

access,

and

compliance

immigration

conditions

to

the

FY 2017 JAG funds (collectively the “Original Conditions”) and
seeking preliminary and permanent injunctions. In September 2017,
the Court issued a preliminary, nationwide injunction as to the
notice and access conditions. Sessions I, 264 F.Supp.3d at 951.
The Seventh Circuit affirmed. Chicago v. Sessions, 888 F.3d 272,
286 (7th Cir. 2018) (“Sessions II”). The Seventh Circuit later
decided to take up the limited issue of the injunction’s nationwide
scope en banc. Chicago v. Sessions, 2018 WL 4268817 (7th Cir. June
4,

2018).

While

the

en

banc

appeal

was

pending,

the

Court

permanently enjoined all three Original Conditions. Sessions III,
321

F.Supp.3d

at

881.

The

Court’s

final

order

limited

the

injunction to the FY 2017 JAG awards, in part based on the Attorney
General’s

representation

that

the

Government

had

“taken

[the

Court’s order] to heart” and was “looking at the conditions for
next year against the backdrop of your prior decision.” (8/15/18

- 2 -

Tr. at 5, 2017 Dkt. No. 213; FY 2017 Final J. at 3, 2017 Dkt.
No. 211.)
Despite the Attorney General’s representation to this Court,
the FY 2018 JAG awards re-imposed substantially similar versions
of

the

Original

immigration-related

Conditions,
conditions.

as

well

First,

as

the

three
FY

2018

additional
JAG

award

imposed a new compliance condition that is materially identical to
the

FY

2017

compliance

condition.

Because

the

constitutional

analysis applies equally to both the FY 2017 compliance condition
and the new FY 2018 compliance condition, hereinafter both are
included in references to the Original Conditions. See Barr I, 405
F.Supp.3d at 762. Second, the FY 2018 awards also included two
entirely new conditions, the additional certification condition,
and the harboring condition (together, the “New Conditions”). On
October 12, 2018, having not received a FY 2018 JAG award by the
anticipated deadline of September 30, 2018, Chicago filed this
lawsuit challenging the FY 2018 immigration conditions and once
again seeking a permanent injunction. On September 19, 2019, the
Court granted summary judgment in favor of the City, relying on
precedent from the FY 2017 litigation. Barr I, 405 F.Supp.3d at
761–68. In light of “the extent of the violation established []
and DOJ's track record in this litigation” the Court issued a

- 3 -

permanent injunction for the FY 2018 grants and all future years.
Id. at 770.
Chicago reserved the right to move for attorneys’ fees in
connection with the FY 2018 litigation in its amended complaint.
(Amend. Compl. at 57, 2018 Dkt. No. 34.) Following the Court’s
entry of a final judgment and order, the City filed this motion
for attorneys’ fees. The litigation, now settled, the Court turns
to the merits.
II.

LEGAL STANDARD

The Equal Access to Justice Act (“EAJA”) allows the Court to
award attorneys’ fees and expenses “to the prevailing party in any
civil action brought by or against the United States or any agency
or any official of the United States acting in his or her official
capacity” to the same extent “that any other party would be liable
under the common law” for attorneys’ fees. 28 U.S.C. § 2412(b).
The American Rule is that parties to litigation pay their own fees.
Chambers v. NASCO, Inc., 501 U.S. 32, 45–46 (1991). The Supreme
Court has recognized an exception where a party has “acted in bad
faith, vexatiously, wantonly, or for oppressive reasons.” Id. at
45–46. The claimant “bears the burden of establishing entitlement
to [a fee] award and documenting the appropriate hours expended
and hourly rates.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).

- 4 -

III.
A.

DISCUSSION
Eligibility

The threshold question for eligibility under the EAJA is
whether Chicago is a “prevailing party.” A prevailing party “is
one who has been awarded some relief by the court,” including
judgments

on

the

merits

and

the

award

of

nominal

damages.

Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Hum.
Res., 532 U.S. 598, 603 (2001). Chicago was awarded complete relief
by the Court, including a permanent injunction preventing the
Attorney General from imposing both the Original Conditions and
the New Conditions in FY 2018 or in the future. Consequently, there
is no question that the City is the prevailing party and eligible
to pursue an award of attorneys’ fees under the Section 2412(b) of
the EAJA.
B.
The

second

Bad Faith Analysis

question

is

whether

Chicago

can

establish

entitlement to fees under the common law. At common law, parties
ordinarily pay their own fees, unless the conduct falls within the
limited list of recognized exceptions. Chambers, 501 U.S. at 45.
The “bad faith exception” awards attorneys’ fees where the nonmoving party “acted in bad faith, vexatiously, wantonly, or for
oppressive reasons.” Id. at 45–46. The bad faith exception is
rooted in the court’s inherent power to “to fashion an appropriate
- 5 -

sanction for conduct which abuses the judicial process.” Id. 44–
45. The Court may issue such sanctions where “the offender has
willfully

abused

the

judicial

process

or

otherwise

conducted

litigation in bad faith.” Salmeron v. Enter. Recovery Sys., Inc.,
579 F.3d 787, 793 (7th Cir. 2009). This inherent authority is not,
however, “a grant of authority to do good and rectify shortcomings
of the common law” and should be “exercised sparingly.” Zapata
Hermanos Sucesores, S.A. v. Hearthside Baking Co., Inc., 313 F.3d
385, 390–91 (7th Cir. 2002).
There is no bright-line rule for what constitutes bad faith.
“Courts have used phrases such as harassment, unnecessary delay,
needless increase in the cost of litigation, willful disobedience,
and recklessly making a frivolous claim.” Mach v. Will Cnty.
Sheriff, 580 F.3d 495, 501 (7th Cir. 2009) (citing Stive v. U.S.,
366 F.3d 520, 521–22 (7th Cir. 2004) (collecting cases)). The
Seventh

Circuit

has

also

looked

to

28

U.S.C.

§

1927,

which

similarly awards fees for unreasonable and vexatious conduct. Id.
In the context of a Section 1927 award, the Seventh Circuit has
held that litigants are not required to prove subjective bad faith
or malice. Dal Pozzo v. Basic Mach. Co., Inc., 463 F.3d 609, 614
(7th Cir. 2006). Fee awards may also be appropriate under an
objective bad faith standard, which only requires proof of reckless
indifference to the law. Id. For example, “[i]f a lawyer pursues
- 6 -

a path that a reasonably careful attorney would have known, after
appropriate inquiry, to be unsound, the conduct is objectively
unreasonable and vexatious.” Id. (internal quotation marks and
citations omitted).
Chicago alleges it is entitled to a fee award based in part
on the Attorney General’s pre-litigation decision to re-impose the
Original Conditions, as well as impose the New Conditions, all
based on authority the Seventh Circuit already concluded he did
not have. In response, the Attorney General argues that the bad
faith exception only awards attorneys’ fees for conduct occurring
during the course of the litigation. The Attorney General, however,
misstates the rule. Pre-litigation actions can be a basis for bad
faith in addition to a party’s conduct during the pendency of the
litigation. Roadway Exp., Inc. v. Piper, 447 U.S. 752, 766 (1980).
Fees

based

on

pre-litigation

conduct

are

only

appropriate,

however, where such conduct is distinct from the substantive claims
at issue. Zapata Hermanos Sucesores, 313 F.3d at 391. For example,
in a claim for breach of contract, attorneys’ fees cannot be
awarded based on allegations that the breach was committed in bad
faith. Grochocinski v. Mayer Brown Rowe & Maw LLP, 452 B.R. 676,
683 (N.D. Ill. 2011). Fees may be awarded, however, based on a
finding that pre-suit conduct, such as a strategy decision, was
done in bad faith. Id.
- 7 -

The Attorney General made a tactical decision to impose
meritless conditions instead of pursuing alternative means, such
extending the FY 2017 injunction, to achieve the same goals. The
Court

finds

this

pre-litigation

decision

to

be

eligible

for

consideration as to whether it was done in bad faith. This analysis
is

distinct

from

the

substantive

challenges

to

the

FY

2018

conditions raised by the City in its complaint, which alleged the
Attorney General did not have the authority to impose any of the
FY 2018 immigration conditions. Because the conduct at-issue in
this motion is distinct from the conduct in Chicago’s complaint,
the Court will consider conduct occurring prior to the initiation
of this suit in addition to the Attorney’s General actions during
the course of litigation.
1.

The Original Conditions

Chicago seeks to collect fees for its re-litigation of the
Original Conditions, arguing the Attorney General’s re-imposition
of these conditions was in willful disregard for the Court’s FY
2017 final judgment and binding Seventh Circuit precedent and
therefore in bad faith. The Attorney General contends his reimposition of the Original Conditions was merely to preserve his
ability to enforce the conditions in FY 2018 if his litigation
position changed. The Court disagrees with the Attorney General

- 8 -

and

will

award

fees

for

the

re-litigation

of

the

Original

Conditions.
This Court, relying on an unequivocal preliminary injunction
opinion from the Seventh Circuit, explicitly rejected the Attorney
General’s rationale for the Original Conditions. Nevertheless, the
Attorney General pressed ahead with his re-imposition of the
Original Conditions and the two New Conditions in FY 2018. The
Attorney General addressed the FY 2018 conditions during a hearing
on August 15, 2018 where the Government explained that it was
“looking at the conditions for [FY 2018] against the backdrop of
[the Court’s] prior decision.” (8/15/18 Tr. at 5.) The Attorney
General then admitted that “if [the Government] impose[s] the exact
same

conditions

without

notice

and

forces

[Chicago]

to

affirmatively file a case, there might be other remedies available
to the plaintiffs in that context.” (Id. at 6.) The Court replied,
“That would mean their lawyers would get paid.” (Id.) Relying on
that representation, the Court entered the final order and judgment
on the Original Conditions, limited only to the FY 2017 JAG funds.
(2017 Final Order at 3.)
Despite the Attorney General’s August 15, 2018 assertions,
the Government remained silent until November 2018. On November 2,
2018, the Attorney General posted a Special Notice on the JAG
website. (FY 2018 Special Notice, Amended Compl., Ex. E, 2018 Dkt.
- 9 -

No. 34-5.) According to the Special Notice, the Attorney General
would not enforce the Original Conditions as to Chicago while the
current litigation remained pending. (Id. at 1–2.) During the
nearly three months Chicago waited for the Attorney General to
declare his intentions regarding the FY 2018 conditions millions
of JAG dollars were awarded, all with the Original Conditions
attached. By the time Chicago filed this lawsuit on October 12,
2018, the City had no reason to believe any award it received would
not also include the Original Conditions.
The City was not required to sit idly by and wait for the
Attorney General to re-impose the Original Conditions. During the
course of this case, the Seventh Circuit made clear that “a
plaintiff injured by an unconstitutional or unlawful action in one
year does not need to suffer injuries repeatedly in each ensuing
year — and separately sue after each injury — to obtain relief
from the unlawful actions.” Barr II, 961 F.3d at 910–11. The
Attorney General also offers no reason for his delay in giving the
City notice. In light of the Attorney General’s representations to
this Court, the weight of the precedent rejecting the Original
Conditions, and the significant potential consequences for the
Chicago, the Court concludes that the Attorney General’s delay was
unreasonable and unnecessary and in bad faith.

- 10 -

The fact that the Attorney General eventually gave notice
that he would not enforce the Original Conditions does not limit
the City’s award. (FY 2018 Special Notice at 1–2.) The Special
Notice was nothing more than a posting to the JAG website, which
holds no binding legal authority. As this Court later recognized,
the Attorney General was committed to imposing these immigration
conditions on JAG awards. Barr I, 405 F.Supp.3d at 770. The
Attorney

General’s

pursuit

of

the

immigration

conditions,

in

Chicago and across the country, made it reasonable for the City
not to rely exclusively on statements with no legally binding
authority.
Instead of these bad faith actions, which caused the City to
litigate the conditions once again, there was a simple solution.
The Attorney General could have agreed to extend the FY 2017
injunction to FY 2018 when it was before this Court in August 2018.
This would have avoided further litigation while the injunctive
relief was reviewed by the Seventh Circuit. If the injunction was
lifted by the Seventh Circuit, the Attorney General would have had
the same enforcement remedies it claims to have been preserving.
Instead, the Attorney General failed to subject itself to a legally
binding

order,

abused

the

judicial

increased the City’s litigation costs.

- 11 -

process,

and

needlessly

The Attorney General’s failure to substantively defend the
Original Conditions in its FY 2018 briefing also does not change
this analysis. When the Seventh Circuit affirmed the FY 2017
preliminary injunction, it left no question that the outcome would
be the same at the permanent injunction stage and in future years.
The Attorney General acknowledged this by declining to either raise
new arguments or explain why re-re-imposing these conditions was
reasonable. Simply put, a “litigant can't be allowed to file
repeated meritless suits with impunity just so long as he does not
protract any one of them unreasonably.” Carr v. Tillery, 591 F.3d
909, 919 (7th Cir. 2010). The same is true here. The Attorney
General cannot be allowed to cause Chicago to file repeated suits
to

defend

against

the

Government’s

meritless

imposition

of

immigration-related JAG award conditions. The Court thus finds the
Attorney General acted in bad faith even after posting the Special
Notice.
For

all

these

reasons,

and

subject

to

the

limitations

described below in Section III.C., supra, Chicago is entitled to
attorneys’

fees

for

its

FY

2018

challenge

to

the

Original

Conditions.
2.
Chicago

also

seeks

The New Conditions
fees

for

its

challenge

of

the

New

Conditions. The City argues that the Attorney General’s rationale
- 12 -

for the New Conditions was already “foreclosed by orders of both
this Court and the Seventh Circuit.” (Mem. at 13, 2018 Dkt.
No. 99.)

The

Attorney

General

argues

that

because

the

New

Conditions were “untested in any court” and the City offers nothing
to suggest the imposition or defense was done to harass, Chicago
has not met its burden. The Court agrees with Chicago and will
award fees for the work challenging the New Conditions.
The Seventh Circuit’s holding in Mach v. Will County Sheriff
is instructive. In Mach, the Court concluded that discovery “erased
any doubt that [five of plaintiff’s] arguments had even a chance
of success. Mach, 580 F.3d at 501. Even so, the plaintiff waited
until after the defendant filed its motion for summary judgment to
abandon these claims. Id. at 498, 501. The Seventh Circuit awarded
fees

to

the

unnecessary

defendant,
summary

finding

judgment

that

costs

on

the
the

plaintiff

inflicted

defendant,

despite

knowing “that five of the six bases for his claims were ‘worthless’
and non-starters.” Id. at 501.
Here, the Attorney General knew that that his claims of
authority were meritless. In defense of the New Conditions, the
Attorney General raised already-rejected arguments regarding the
scope of the Government’s authority under the JAG statute. Barr I,
405 F.Supp.3d at 763–64, 766. Indeed, the Court expressly noted
that the Attorney General “is not free to disregard the Seventh
- 13 -

Circuit's rulings in its briefings before this Court.” Id. at 767.
Consequently, the Court summarily rejected the Government’s argued
for authority to impose the harboring condition, explaining that
the Seventh Circuit already concluded that imposing immigration
conditions falls outside the communication and coordination duties
delegated to the Attorney General under 34 U.S.C. 10102(a)(1)-(5).
Id. at 766. The Court also called attention to the fact that
Government did not explain why the Seventh Circuit's analysis of
34 U.S.C. 10102(a)(6) in the context of the notice and access
conditions should not equally apply to the harboring condition.
Id. at 766–67. Moreover, in its only defense of the additional
certification

requirement

“the

DOJ

presented

no

arguments

regarding the source of its statutory authority . . . and for that
reason seems to have conceded the point.” Id. at 763.
Like Mach, the Attorney General “permitted litigation to
continue” despite clear precedent that had erased any “doubt that
his arguments had even a chance of success.” Mach, 580 F.3d at
501.

The

Attorney

General

could

have

extended

the

FY

2017

injunction to include the New Conditions, sparing the City the
cost of litigating and allowing the review by the Seventh Circuit
to go forward. He did not. For this reason, the Attorney General
“inflicted unnecessary costs upon [the City]” and an award of
attorneys’ fees for this conduct is appropriate. Id.
- 14 -

For these reasons and subject to the limitations described
below in Section III.C., supra, Chicago is entitled to attorneys’
fees for its FY 2018 challenge to the New Conditions.
C.

EAJA Award

Finding that Chicago is entitled to attorneys’ fees under the
bad faith exception, the Court must determine the appropriate size
of the award. To calculate the proper award, the Court will use
“the lodestar method, multiplying the number of hours reasonably
expended on the litigation . . . by a reasonable hourly rate.”
Pickett v. Sheridan Health Care Ctr., 664 F.3d 632, 639 (7th Cir.
2011) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983))
(internal quotation marks omitted). Based on the hourly rates and
hours described below, the Court calculates a lodestar amount of
$391,168.55.
1.
A

reasonable

measured

by

the

hourly
“rate

Hourly Rates
rate

that

is

an

lawyers

attorney’s
of

similar

market

rate,

ability

and

experience in the community normally charge their paying clients
for the type of work in question.” Spegon v. Catholic Bishop of
Chicago, 175 F.3d 544, 555 (7th Cir. 1999) (quoting Bankston v.
State of Ill., 60 F.3d 1249, 1256 (7th Cir. 1995)) (internal
quotation marks and citations omitted). The Seventh Circuit has
long held that an “attorney's actual billing rate for comparable
- 15 -

work is ‘presumptively appropriate’ to use as the market rate.”
Id. (quoting People Who Care v. Rockford Bd. of Educ., Sch. Dist.
No. 205, 90 F.3d 1307, 1310 (7th Cir. 1996)); see also Montanez v.
Simon, 755 F.3d 547, 553 (7th Cir. 2014) (“The best evidence of
the market rate is the amount the attorney actually bills for
similar work.”); Pickett, 664 F.3d at 640 (“We presume that an
attorney's

actual

billing

rate

for

similar

litigation

is

appropriate to use as the market rate.”). Only when the requesting
attorney or attorneys do not have a billable rate, will the Court
look to the “next best evidence” — the hourly rates of lawyers
with comparable skills, experience, and reputation. Spegon, 175
F.3d at 554; People Who Care, 90 F.3d at 1310. The fee applicant
bears the burden of establishing the attorneys’ market rates.
Pickett, 664 F.3d at 640. Once “the fee applicant satisfies [their]
burden, the burden shifts to the other party to offer evidence
that sets forth a good reason why a lower rate is essential.” Id.
(internal quotation marks and citations omitted).
Chicago’s attorneys rely on their actual billable rates from
2018 to establish their market rates. Wilmer Cutler Pickering Hale
and Dorr LLP (“WilmerHale”) presents evidence of the firm’s 2018
billable rates via attorney affidavit. (See Holtzblatt Decl. ¶¶ 6–
16,

19,

2018

Dkt.

No.

99-2).

WilmerHale

further

offers

an

engagement letter from a prior representation, evidencing that the
- 16 -

City previously agreed to pay the firm’s billable rates, with a
10% discount. (2015 Engagement Ltr., Holtzblatt Decl., Ex. 1, 2018
Dkt. No. 99-3.) Chicago’s local counsel, Riley Safer Holmes &
Cancila LLP (“Riley Safer”), also presents an attorney affidavit
to establish the firm’s 2018 billable rates. Mr. Crowley reviewed
each attorney’s and paralegal’s billable rate and attests to the
fact that the rate being sought was the same or lower than the
rate being charged to other clients during the same month. (Crowley
Decl. ¶¶ 6–17, 2018 Dkt. No. 99-4.)
The Attorney General argues that the Holtzblatt and Crowley
Declarations are “self serving” and insufficient to establish each
firm’s billable rates (Oppn. at 16-17, 2018 Dkt. No. 105). But the
Attorney General’s argument misinterprets the rule in the Seventh
Circuit. Cases discussing the need for extrinsic evidence beyond
an attorney’s affidavit do so when examining the hourly rates of
attorneys with no fee-paying clients, such as those working on
contingency or for public aid organizations. See, e.g., Uphoff v.
Elegant Bath, Ltd., 176 F.3d 399, 407 (7th Cir. 1999) (evaluating
the appropriate hourly rate for attorneys with no fee paying
clients); Spegon, 175 F.3d at 555 (same). Chicago’s attorneys
established their market rates based on the actual billable rates
charged to and paid by firm clients. Consequently, the Court need
not look to the next best evidence and undertake a review of rates
- 17 -

charged

by

attorneys

with

similar

skills,

experience,

and

reputation. The Court concludes that the Holtzblatt and Crowley
Declarations adequately establish the market rates for Chicago’s
attorneys.
As a result, the burden now shifts to the Attorney General to
explain why this Court should award a lower hourly rate. The
Attorney General argues that Chicago’s award should be consistent
with the hourly rates this Court awarded in the similar case, City
of Evanston et al v. Barr, 2020 WL 1954142 (N.D. Ill. Apr. 23,
2020). According to the Attorney General the rates sought by
Chicago will result in a “windfall” and evidences the City’s “endrun” around the rate caps found in Section 2412(d) of the EAJA.
While the fee caps in Section 2412(d) could be instructive if
Chicago failed to meet its burden, those caps are inapplicable to
Chicago’s fee award under Section 2412(b). Furthermore, a Section
2412(d) award is only available to a subset of plaintiffs to which
Chicago is not a member. See 28 U.S.C. § 2412(d). It is therefore
not an “end run” around the Section 2412(d) fee caps for Chicago
to appropriately seek fees under Section 2412(b). The Court further
notes that fee award is not a “windfall.” The fee award here
represents the market cost of reasonable legal services rendered
that were unnecessarily caused by the Attorney General’s bad faith
actions.

The

Seventh

Circuit

recognizes

- 18 -

that

“[p]revailing

plaintiffs are entitled not to a ‘just’ or ‘fair’ price for legal
services, but to the market price for legal services.” Pressley v.
Haeger, 977 F.2d 295, 299 (7th Cir. 1992).
For

these

reasons,

the

Court

will

base

its

Lodestar

calculation on the billing rates identified in the Holtzblatt and
Crowley affidavits.
2.
The

prevailing

Hours Expended

party

is

entitled

to

compensation

for

reasonable hours expended and must “exclude from a fee request
hours that are excessive, redundant, or otherwise unnecessary.”
Spegon, 175 F.3d at 552 (quoting Hensley, 461 U.S. at 434). Chicago
seeks to recover the attorneys’ fees for 753 hours billed by 13
attorneys and 3 paralegals. Chicago argues this is reasonable given
the work necessary to litigate this case over the course of
thirteen months. In addition, the City explains that it reasonably
allocated the work, delegating research and writing to more junior
attorneys,

with

partners

serving

in

a

supervisory

role.

The

Attorney General raises a number of objections.
The Government first asks for a blanket exclusion of the hours
billed by all but two WilmerHale attorneys, Mr. Holtzblatt and Ms.
Jennings. The Attorney General contends that because this case was
an extension of the FY 2017 litigation the work could have been

- 19 -

handled by a single partner and a single associate. The Court
disagrees.
Division of labor is common in law firms. Firms are not
required to staff just one or two lawyers to a single case.
Instead, where there is a large team involved in the litigation
the

court

must

“scrutinize

a

fees

petition

carefully

for

duplicative time.” Jardien v. Winston Network, Inc., 888 F.2d 1151,
1160

(7th

Cir.

1989).

This

case

presented

complex

issues

of

constitutional law and statutory interpretation with far-reaching
consequences and involved a number of simultaneous workstreams.
For that reason, the Court will not grant a blanket exclusion of
the time billed by all but two attorneys. Instead the Court will
look at time spent on specific tasks (e.g., drafting the complaint,
revising the motion for summary judgment) and determine whether
the entries reflect excessive time spent or duplication of efforts
by multiple attorneys or paralegals.
The
entries

Attorney
in

deficiencies:

General

Chicago’s
(1)

fee

further

objects

petition

unnecessary

or

based

to
on

individual
three

duplicative

time

alleged

work;

(2)

unreasonable hours dedicated to a particular task; and (3) vague
diary entries. (Jt. Statement at 3–4, 2018 Dkt. No. 99-1; Oppn. at
18–20.) The Attorney General also objects to the time spent on

- 20 -

Chicago’s fee petition. The Court reviews the Attorney General’s
objections below.
a.

Unnecessary or Duplicative Work Objections

The time entries the Attorney General views as unnecessary or
duplicative fall into four categories: (1) internal meetings; (2)
more than one attorney attending events; (3) the FY 18 preliminary
injunction motion; (4) work unrelated the FY 2018 litigation.
The Government objects to dozens of time entries as redundant
or excessive solely because another attorney billed for the same
internal or client meeting, hearing, or other event. The Seventh
Circuit does not enforce a “hard-and-fast rule as to how many
lawyers can be at a meeting or how many hours lawyers can spend
discussing a project.” Gautreaux v. Chicago Hous. Auth., 491 F.3d
649,

661

(7th

communications
“practice

of

Cir.
would
law

2007).
be

often,

Such

a

“totally
indeed

blanket

rule

unrealistic”
usually,

for

given

involves

internal
that

the

significant

periods of consultation among counsel.” Tchemkou v. Mukasey, 517
F.3d 506, 511 (7th Cir. 2008). In fact, “[t]alking through a set
of authorities or seeking advice on a vexing problem is often
significantly more efficient than one attorney's trying to wade
through the issue alone.” Id. at 511–12. The same is true for
external meetings and hearings, where it is often necessary for
attorneys “to spend at least some of their time conferring with
- 21 -

colleagues, particularly their subordinates, to ensure that a case
in managed in an effective as well as efficient manner.” T.P. ex
rel. Kimbrely R. v. City of Chicago Pub. Sch. Dist. 299, 2011 WL
1197353, at *9 (N.D. Ill. Mar. 29, 2011) (quoting Williams v. R.W.
Cannon, Inc., 657 F.Supp.2d 1302, 1312 (S.D. Fla.2009)).
The proper analysis for events involving multiple attorneys
is whether the diary entries include sufficient details that the
Court can discern whether the time was reasonably spent. Tchemkou,
517 F.3d at 512. Having reviewed these records, representing
approximately 100 hours across the 13 months of litigation, the
Court finds that the diary entries for internal and external
meetings, hearings, and other allegedly duplicative events provide
sufficient detail to identify the subject matter of the meeting or
event. As a result, the Court concludes this time was reasonably
expended and is recoverable by Chicago.
Second, the Attorney General objects to all hours billed for
the preparation of a FY 2018 motion for preliminary injunction.
The Government argues that because this motion was never filed,
the time spent on it was unnecessary and therefore not compensable.
The Court disagrees.
Whether a course of action is reasonable is measured by the
circumstances at the time, not with the benefit of hindsight. The
Attorney General knew in July 2018 that the Government should not
- 22 -

attempt to re-enforce the FY 2017 conditions in FY 2018. The
Attorney General admitted as much in August 2018 when he stated,
on the record, that the Government was reviewing the proposed FY
2018 conditions. The Attorney General then went silent and took no
further

action

until

November

2018.

Chicago’s

FY

2018

JAG

submission sat unanswered for months, leaving the City without
clarity on whether the Attorney General intended enforce any of
the

FY

2018

immigration-related

conditions.

It

was

therefore

reasonable for the City of Chicago to prepare a new preliminary
injunction motion up through the time the City issued its Special
Notice.
Having reviewed the billing records, the Court determines
that the less than 40 hours spent researching, drafting, and
preparing the unfiled FY 2018 motion for preliminary injunction
was reasonable. Moreover, none of the bills reflect work done after
November 2, 2018, the date the Special Notice was posted. For these
reasons, the Court will not strike any of the time spent on the
unfiled FY 2018 motion for preliminary injunction.
Third, the Attorney General objects to all time spent on the
FY 2019 JAG application, amicus briefs and appellate work. The
Government

argues

these

tasks

are

litigation. The Court agrees in part.

- 23 -

unrelated

to

the

FY

2018

Time attributable to the FY 2019 JAG solicitation falls into
two categories: (1) a motion for leave to cite the FY 2019
conditions as supplemental authority in connection with Chicago’s
FY 2018 motion for summary judgment, and (2) preparation of Chicago
FY 2019 JAG application. The supplemental authority motion is
clearly related to this litigation and therefore time attributable
to its preparation and filing are compensable. Time spent preparing
the FY 2019 JAG application is also related to the FY 2018
litigation

and

compensable.

The

FY

2018

litigation

sought

a

permanent injunction covering the FY 2018 JAG funds and all future
JAG funds, thus bringing the FY 2019 within the scope of this
litigation.

In

addition,

Chicago’s

careful

response

to

these

conditions was necessary to preserve its litigation position in
the

ongoing

FY

2018

lawsuit.

Finally,

the

need

for

attorney

involvement in the application process was directly caused by the
Attorney General’s insistence on re-imposing the same conditions.
Indeed, the FY 2019 re-imposition is the very same conduct this
Court has concluded was in bad faith.
The Court will, however, strike as unnecessary and unrelated
to the FY 2018 litigation all time attributable to amicus briefing
and appellate work. In the Fall of 2018 and Spring of 2019
Chicago’s attorneys were coordinating amicus briefs, preparing
Seventh Circuit disclosure forms, and generally communicating with
- 24 -

the appellate team. During this time, the FY 2018 litigation
remained pending before this Court. Thus, any Seventh Circuit
filing or appellate coordination could not be related to this
litigation. The same must be true of the time related to the amicus
briefs. No such briefs were filed before this Court in connection
with

Chicago’s

General’s

motion

motion

to

for

summary

dismiss.

judgment

or

Consequently,

the

Attorney

without

more

information the Court must conclude that the time entries related
to amicus briefs reflect work done in connection with the thenpending FY 2017 appeal. Time spent on the FY 2017 litigation not
compensable, and the Court thus excludes Riley Safer entries 12,
13, 23, 26, 33, 41, 43. (See Annotated Attorney Bills, Oppn.,
Ex. A, 2018 Dkt. No. 105-1.)
b.

Excessive Hours Objections

The Attorney General also objects to the hours related to
certain tasks as excessive. According to the Government, Chicago
spent

excessive

hours

preparing

the

complaint

and

amended

complaint, preparing the motion to reassign, reviewing work done
by Mr. Holtzblatt and Ms. Jennings, finalizing documents for
filing, cite checking, and performing non-legal tasks, such as
entering appearances. For the reasons set out below, the Court
agrees in part and reduces Chicago’s award for the time spent on
certain of these tasks.
- 25 -

Chicago spent nearly 140 hours working on its complaint and
the amended complaint. Of those 140 hours, approximately 34 hours
were dedicated to drafting and 64 hours were dedicated to editing.
Unlike most lawsuits, however, the City had a starting point for
its

complaint,

its

FY

2017

lawsuit

challenging

substantially

similar conditions. The initial factual basis for of the FY 2017
complaint and the FY 2018 complaint were nearly identical, and
only

required

the

additional

history

related

to

the

FY

2017

litigation and the addition of the New Conditions. Even so, a
comparison of the two documents reflects substantial editing of
the background sections, in addition to the necessary additional
details. Moreover, a review of the changes from original FY 2018
complaint to the FY 2018 amended complaint reveals changes beyond
the incorporation of the Attorney General’s November 2018 Special
Notice, including information that was known when the initial
complaint was filed. It is not reasonable for Chicago to seek fees
for stylistic, as opposed to substantive, revisions and the City
does not offer a compelling reason for the number of hours billed
to these tasks. For these reasons the hours billed to drafting and
editing the complaint and amended complaint will be reduced by
50%. This reduction will apply to WilmerHale entries 15, 17, 18,
19, 21, 24-26, 28, 30, 54, 55, 57, 73, 76, 78–82, 85, 87, 89, 91–
94, 96, 98, 100, 102, 104, 105, 107, 108, 135, 140, 143, 144, 146,
- 26 -

148, 149, 151–55, 157, 160 and Riley Safer entry 16. (See Annotated
Attorney Bills.) The approximately 16 hours spent on research for
the complaint and amended complaint is not unreasonable and will
not be reduced.
Chicago seeks fees for ten hours for work on its motion to
reassign this case to this Court, given its relationship to the FY
2017 litigation. The Court will not strike all work done on this
motion, as the Attorney General suggests. The motion to reassign
was the natural result of Chicago having to file another lawsuit
related to JAG award conditions. Moreover, ten hours is not an
unreasonable amount of time to spend on this motion. This is
particularly true where the bulk of the writing and editing on
this brief was done by Mr. Evans, one of the more junior associates
working on this case. Consequently, the Court will not disturb the
hours relating to the motion to reassign.
Chicago

also

objects

to

any

time

spent

reviewing

work

completed by Mr. Holtzblatt and Ms. Jennings as excessive and
unnecessary. To start, Ms. Jennings was the primary drafter on a
number of documents, including the complaint and the motion for
summary judgment. To exclude any time dedicated to revising her
work on these topics would be contrary to a common practice in the
legal profession—collaboration. Similar to the rejection of the
Attorney General’s insistence on one attorney per meeting, the
- 27 -

Court will not enforce a one attorney per document rule. During
the course of its review of the billing entries, the Court reviewed
the hours spent on each project and the specific tasks therein,
such as drafting, editing, researching, etc. For the reasons set
forth above the drafting and editing hours for the complaint and
amended complaint will be reduced. For the remaining projects
related to litigating this case on the merits, including the motion
for summary judgment and the opposition to the motion to dismiss,
the Court concluded that the overall hours spent were reasonable.
For that reason, the Court will not provide any further reductions
for the time spent reviewing work done by Mr. Holtzblatt and Ms.
Jennings.
Chicago seeks fees for approximately 75 hours attributable to
finalizing documents for filing and cite checking. The Court agrees
that approximately 40 hours on cite checking is excessive and will
reduce the award for these hours by 50%. The Court similarly finds
excessive the 35 hours attributable to finalizing and filing
documents, particularly where these entries are distinct from the
ongoing edits during the drafting process. The Court will also
reduce

these

entries

by

50%.

These

reductions

will

apply

to

WilmerHale entries 105, 157, 159, 160, 273, 278, 282, 292, 295–97
336, 339, 341, 354 and Riley Safer entry 19. (See Annotated
Attorney Bills.)
- 28 -

Finally,

the

Attorney

General

challenges

as

unreasonable

certain tasks that it characterizes as non-legal. None of the
entries identified by the attorney general are the type of purely
administrative tasks that can be delegated solely to non-legal
staff. Reviewing court orders to ensure compliance, clarifying
orders

and

courtroom

processes

with

chambers,

coordinating

briefing schedules and filing any necessary motions with the court,
assembling exhibits, drafting declarations and other ancillary
filings, and coordinating strategy are all tasks that at minimum
require legal oversight and are typically performed by attorneys.
The Court will, however, reduce the 12 hours sought in connection
with drafting and filing appearances. Appearances are routine
documents. Even considering the number of attorneys that entered
appearances in this case, 12 hours is unreasonable. The Court
therefore reduces those hours by 50%. This reduction will apply to
Riley Safer entries 18, 20, 21, 25, 31. (See Annotated Attorney
Bills.)
c.

Vagueness Objections

The Attorney General objects to approximately 18 entries as
vague.

While

sufficient

the

detail

majority

of

regarding

the

disputed

activity

entries

undertaken

provide
and

its

relationship the FY 2018 litigation, some do not. WilmerHale
entries 16, 56, 162, 261, 381 and Riley Safer entries 32 and 38
- 29 -

fail to provide the detail necessary to connect the tasks to the
FY 2018 litigation. (See id.) Consequently, these entries will be
stricken from the award.
d.

Fee Petition Objections

The Attorney General objects to the 123.6 hours Chicago spent
on its fees motion as excessive. The Seventh Circuit has held that
the excessiveness of the fee petition hours depends on a comparison
of the time spent on the fee petition and the time spent reasonably
litigating the merits. Spegon, 175 F.3d at 554. If the fee petition
hours are deemed disproportionate to the time spent on the merits,
the Court may reduce the hours to make the award reasonable. Id.
In Ustrak v. Fairman, the Seventh Circuit found that 15 minutes of
fee petition work for every hour of merits work was excessive. 851
F.2d 983, 987–88 (7th Cir. 1988). The Ustrak award was reduced by
two-thirds, or to 5 minutes of fee petition work for every hour of
merits work. A similar adjustment was made to the award in Gibson
v. City of Chicago, 873 F.Supp.2d 975 (N.D. Ill. 2012). The Gibson
court concluded that 10 minutes of fee petition work for every
hour of merits work was excessive. Id. at 992–93. The court then
cut the award in half, to 5 minutes per hour of merits litigation
work. Id.
Here Chicago seeks to recover 123.6 hours for the preparation
and filing of the Government’s fee petition. After making the
- 30 -

adjustments detailed above the City is able to reasonably recover
527.05 hours for litigating on the merits. This results in a ratio
of approximately 14 minutes on the fee petition for every hour
spent litigating the merits. The Court concludes this is excessive
and in line with the reductions in Ustrak and Gibson reduces the
award by 2/3.
Based on the foregoing hours reductions, Chicago is awarded
$391,168.55 in attorneys’ fees. This breaks down into $18,584.75
to be awarded to Riley Safer and $372,583.80 to WilmerHale.
IV.

CONCLUSION

For the reasons stated herein, Plaintiff’s motion for award
of attorneys’ fees (2018 Dkt. No. 99) is granted in part and denied
in part. Plaintiff is entitled to $391,168.55 in attorneys’ fees.
IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
Dated: 4/28/2021

- 31 -