Chester L. Chowaniec v. Arlington Park Race Track, Limited, a Partnership, Joseph F. Joyce, Jr., Individually and as General Partner of Arlington Park Race Track, Limited and Aprt Corporation

Citations: 934 F.2d 128; 1991 U.S. App. LEXIS 11434Docket: 90-1800

Court: Court of Appeals for the Seventh Circuit; June 7, 1991; Federal Appellate Court

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Chester L. Chowaniec, acting pro se, and seven other plaintiffs sued Illinois officials and Arlington Park Race Track, alleging constitutional violations from unlawful arrest and detention under 42 U.S.C. § 1983. A jury found in favor of all plaintiffs, leading to an appeal by Arlington Park defendants, which resulted in an affirmation of liability but a remand for damages unless a settlement was reached. Following a settlement, the plaintiffs sought attorney's fees under 42 U.S.C. § 1988. 

The district court recognized the plaintiffs as prevailing parties eligible for fees but reduced Chowaniec's requested compensation. While it established a fee of $175 per hour for trial and $140 for nontrial work based on prevailing market rates, Chowaniec's rate was set at $80 per hour for 30 hours of non-trial work, excluding trial time due to his lack of basic trial skills and the significant assistance from co-plaintiffs' attorneys. The court ultimately awarded him $2,400, which Chowaniec is appealing, while the defendants did not contest the ruling that a pro se attorney may recover fees under § 1988.

The Supreme Court's decision in *Kay v. Ehrler* clarified that a pro se litigant who is an attorney cannot recover attorney's fees under 42 U.S.C. Sec. 1988 in a successful civil rights case, as the statute is designed to incentivize the attorney-client relationship. This ruling creates a unique procedural situation in the current appeal, particularly because the appellees did not cross-appeal regarding Mr. Chowaniec's entitlement to attorney's fees. Consequently, the court determined it could not alter the fee award made by the district court since the defendants failed to file a cross-appeal, aligning with established case law that requires such action to seek judgment modification.

The court also addressed Mr. Chowaniec's request to modify the award. Generally, courts apply the law as it exists at the time of their decisions, meaning the *Kay v. Ehrler* ruling would prevent the district court from awarding attorney's fees to Mr. Chowaniec. The court considered whether this decision could be applied retroactively, referencing the Chevron Oil Co. v. Huson standards, which outline three considerations against retroactive application: the establishment of a new legal principle, potential interference with federal statutes, and the risk of substantial inequitable results.

The Court analyzed whether the decision in *Ehrler* established a new legal principle, concluding it did not overrule existing precedent since there had been no prior determination in this circuit regarding attorney's fees for prevailing pro se attorneys under section 1988. Prior to *Ehrler*, there was a lack of consensus among circuits and district courts on this issue, particularly regarding non-lawyer pro se litigants' entitlement to fees. The Court highlighted that *Ehrler* underscored the importance of independent counsel for victims of civil rights violations and noted that pro se attorneys face unique disadvantages, including ethical restrictions that limit their ability to testify and lack of independent judgment in legal strategy.

The Court found it equitable to require Mr. Chowaniec to forgo additional compensation, asserting that the question of fee entitlement for pro se attorney litigants had long been unresolved, and therefore, he could not have reasonably relied on prior law to his detriment. The retroactive application of *Ehrler* aligns with the objectives of section 1988 without disrupting any reasonable expectations held by Mr. Chowaniec.

Ultimately, the Supreme Court's ruling in *Kay v. Ehrler* governs this appeal, leading to the affirmation of the district court's judgment that Mr. Chowaniec is entitled to no further fee award.

The excerpt references key legal precedents emphasizing the role of appellate courts in applying current laws, particularly when a new law alters the governing rules post-judgment. Chief Justice Marshall's remarks in *United States v. Schooner Peggy* highlight that appellate courts must adhere to constitutional laws, even if this means overturning prior judgments. Various cases illustrate differing outcomes regarding the entitlement of pro se attorneys to fees under section 1988, establishing a nuanced landscape of legal precedent. It is concluded that the Supreme Court's ruling in *Kay v. Ehrler* dictates that Mr. Chowaniec is not entitled to additional fees, affirming the district court's judgment. The ruling does not disrupt reasonable expectations of litigants regarding fee awards.

A court can recognize jurisdictional defects even without a notice of appeal. The waiver of Federal Rule of Appellate Procedure 4(a)(3) is not permissible in the case at hand, despite arguments made by the Arlington Park defendants regarding fee awards for pro se plaintiff-attorneys. The state defendants request the affirmation of the district court's judgment. The origin of the appellate court's authority to assess judgments is grounded in Chief Justice Marshall's principles, which state that if a law changes after a judgment, the court must adhere to the new law, even if it leads to the overturning of a previously valid judgment. The document references various cases to illustrate differing outcomes regarding fee entitlements for pro se attorneys. Lastly, while recent opinions question the validity of the Chevron approach to retroactivity, the text asserts that none of the alternatives would support a nonretroactive application of the ruling in Ehrler.