Lead Opinion
Affirmed in part, reversed in part, and remanded by published opinion. Judge WILLIAMS wrote the opinion. Judge MOTZ wrote a separate opinion in which she concurred in Parts I., II., III.A. and C., IV., and in the judgment. Judge MURNAGHAN wrote a dissenting opinion.
OPINION
In this appeal we must decide whether the recently enacted limitations on attorney’s fee awards set forth in § 803(d) of the Prison Litigation Reform Act of 1995 (PLRA), Pub.L. No. 104-134, 110 Stat. 1321 (1996) (codified at 42 U.S.C.A § 1997e (West Supp. 1997)), apply to attorney’s fees awarded to Plaintiffs, a group of incarcerated juveniles who have successfully challenged the constitutionality of juvenile prison conditions in the state of South Carolina. Section 803(d) provides that no attorney’s fees shall be awarded to a “prisoner who is confined to any jail, prison, or other correctional facility” in an action seeking redress for unconstitutional prison conditions unless:
(A) the fee was directly and reasonably incurred in proving an actual violation of the plaintiffs right protected by a statute pursuant to which a fee may be awarded under section 1988 of this title; and
(B)(i) the amount of the fee is proportionately related to the court ordered relief for the violation; or
*1377 (ii) the fee was directly and reasonably incurred in enforcing the relief ordered for the violation.
§ 803(d)(1) (codified at 42 U.S.C.A. § 1997e(d)(l)). In addition, any award made pursuant to § 803(d) is limited to an hourly rate no greater than 150 percent of the hourly rate established for payment of court-appointed counsel.
In successive orders, which were consolidated for this appeal,
I.
This appeal arises out of ongoing litigation between a group of incarcerated juveniles confined to four South Carolina juvenile detention facilities and the South Carolina Department of Juvenile Justice (the State). First, we review the procedural background of this case.
A.
In 1990, Plaintiffs filed the underlying class action pursuant to 42 U.S.C.A. § 1983 (West Supp.1997) and three interrelated statutes — the Individuals with Disabilities Education Act, see 20 U.S.C.A. §§ 1400-1485 (West 1990 & Supp.1997); the Rehabilitation Act of 1973, see 29 U.S.C.A. §§ 701-96 (West 1985 & Supp.1997); and the Americans with Disabilities Act, see 42 U.S.C.A. §§ 12101-12213 (West 1995 & Supp.1997) — challenging the conditions of confinement of juveniles housed in the Department of Juvenile Justice facilities operated by the State. Plaintiffs alleged that the State violated a number of their constitutional and federal statutory rights. After exhaustive discovery and a three-month bench trial, the district court concluded that certain aspects of confinement violated Plaintiffs’ rights under the Due Process Clause of the Fourteenth Amendment.
On November 22, 1995, after submissions and arguments, the district court issued an order awarding Plaintiffs attorney’s fees for work relating to the January 1995 order. The State appealed the fee award, but argued only that the rates, hours, and documents submitted by Plaintiffs were inaccurate. In fact, during oral arguments before this court held two weeks after the effective date of the PLRA, the State specifically disavowed any claim that the PLRA limited the fee award.
B.
On May 25, 1995, the State submitted its proposed remedial plan in accordance with the January 1995 district court order. The district court approved the plan, which provided, in pertinent part, for an increase in the facilities’ security staff. The amount of the staffing increase was expressly dependent upon an anticipated reduction in the juvenile facilities’ population.
On August 30, 1995, the district court held a status conference to assess the remedial plan’s implementation progress. The court-appointed special master testified that the existing conditions “caused him to fear for the safety of the juveniles.” (J.A. at 20.) At this conference, Plaintiffs made an oral motion to increase security staffing at the various juvenile facilities. Plaintiffs subsequently submitted in writing an Emergency Motion for Temporary Relief. Plaintiffs then filed a superseding Motion to Modify the Plan with regards to security staffing needs due to an increase, rather than the anticipated decrease, in the number of juveniles detained in the facilities.
In December 1995, the district court held a hearing on the Plaintiffs’ motion to modify the remedial plan to increase staffing. During this hearing, the State agreed to revise its proposed plan. Following the December modification hearing, the district court issued an interim order on February 16, 1996, in which it found that the level of security staffing remained constitutionally inadequate and ordered the State to institute the revised plan presented during the modification hearing. The district court also found that Plaintiffs were the “prevailing party” on this issue and were entitled to reasonable attorney’s fees pursuant to 42 U.S.C.A. § 1988 (West 1994 & Supp.1997). In addition, the district court acknowledged Plaintiffs’ future entitlement to attorney’s fees for ongoing monitor
C.
Plaintiffs subsequently submitted separate motions for attorney’s fees related to, among other things, the December modification hearing and subsequent monitoring activities. The State timely filed objections arguing that the “results obtained” in the December modification hearing did not justify the fee sought and that charges for secretarial services and work performed preparing a separate attorney’s fee appeal and a December 1993 memorandum were improper. The State also submitted a supplemental memorandum, after the enactment of the PLRA, arguing that the limitations contained in § 803(d) of the PLRA applied to Plaintiffs’ pending fee requests. After considering the State’s various objections, the district court issued an order on May 29, 1996, awarding Plaintiffs attorney’s fees for services performed by counsel from May 1995 until February 1996, including the December 1995 modification hearing. The district court specifically concluded that it did not need to determine the applicability of the PLRA because the fees at issue were all incurred prior to the PLRA’s enactment date.
Meanwhile, Plaintiffs continued to submit fee applications to the district court for monitoring work performed from February through July 1996. The State again timely filed objections to the fees, in which the State reiterated its position that the restrictions on attorney’s fees set forth in § 803(d) of the PLRA applied to the Plaintiffs’ fee applications. However, by order dated August 30, 1996, the district court awarded Plaintiffs additional fees for monitoring activities from February through July 1996 based on prePLRA standards. After conducting an in-depth analysis, the district court concluded that § 803(d) did not apply to Plaintiffs because the juveniles, while admittedly “prisoners” under the PLRA, were not “confined to a prison, jail, or other correctional facility” as that phrase is defined by 42 U.S.C.A. § 1997 (West 1994), a section left unaltered by the PLRA. And again, on October 2, 1996, the district court, over the State’s objection that the PLRA limited the available fee award, awarded Plaintiffs attorney’s fees based on pre-PLRA standards for monitoring performed in August 1996. We have consolidated the State’s timely appeals of the orders of February 16, May 29, August 30, and October 2,1996.
II.
On April 26, 1996, Congress enacted the PLRA, landmark legislation that, by imposing new restrictions on class action and individual prisoner lawsuits, sharply circumscribes a prisoner’s ability to seek remedies for alleged unconstitutional prison conditions. To limit federal courts’ involvement in the daily operation of federal and state correctional facilities, the PLRA made significant changes to Titles 18, 28, and 42 of the United States Code. For the purposes of this appeal, we are concerned primarily with §§ 802 and 803 of the PLRA (codified at 18 U.S.C.A. § 3626 (West Supp.1997) and 42 U.S.C.A. § 1997e (West Supp.1997)).
Section 802 limits the remedies available in actions challenging conditions of confinement brought under any Federal law, as in this action, which was brought under 42 U.S.C.A. § 1983. Commonly known as the “Stop Turning Out Prisoners” (STOP) provisions, § 802 limits a federal court’s ability to grant prospective relief. Specifically, § 802’s provisions restrict preliminary injunctive relief, see 18 U.S.C.A. § 3626(a)(2); prohibit the imposition of population caps except as a last resort, see 18 U.S.C.A. § 3626(a)(3); allow for the immediate termination of prospective relief after a limited time, see 18 U.S.C.A. § 3626(b); restrict approval of consent decrees, see 18 U.S.C.A. § 3626(e); require prompt judicial decisions on motions to modify or terminate relief, see 18 U.S.C.A. § 3626(e); and limit the authority and payment of special masters, see 18 U.S.C.A. § 3626(f). Congress specifically made the STOP provisions of § 802 applicable to juvenile prisoners detained in juvenile detention facilities who challenge the conditions of their confinement in “any civil action with respect to prison conditions.” 18 U.S.C.A. § 3626(a)(1); see also 18 U.S.C.A. § 3626(g)(5) (defining prison to include “any Federal, State, or local facility that incarcerates or detains juveniles or adults”).
In an attempt to stem the tide of frivolous lawsuits initiated by federal and state prisoners, Congress passed § 803 of the PLRA (codified at 42 U.S.C.A. § 1997e), which places new procedural restrictions on lawsuits “with respect to prison conditions” whether brought under § 1983 or any other Federal law by “a prisoner confined in any jail, prison, or other correctional facility.” In addition to mandating administrative exhaustion, § 803 of the PLRA, entitled “Suits by prisoners,” provides for the immediate dismissal of frivolous lawsuits, see 42 U.S.C.A. § 1997e(c); limits recovery for mental and emotional injuries, see 42 U.S.C.A § 1997e(e); limits the removal of a prisoner from confinement during pretrial proceedings, see 42 U.S.C.A. § 1997e(f); allows the waiver of the right to reply to prisoner lawsuits, see 42 U.S.C.A § 1997e(g); and, as is pertinent to this action, restricts the availability and amount of attorney’s fees recoverable by prisoners under 42 U.S.C.A. § 1988, see 42 U.S.C.A. § 1997e(d).
III.
This appeal presents three issues. First, are the PLRA’s limitations on attorney’s fees applicable to juveniles incarcerated in juvenile facilities? Second, if applicable to juveniles, are the limitations applicable to fee awards for work performed, but not compensated, prior to the enactment of the PLRA? And third, do the PLRA’s limitations on at
A.
The State contends that the PLRA’s limitations on attorney’s fees apply to the district court’s award of attorney’s fees to the Plaintiffs arising from the Plaintiffs’ successful § 1983 action alleging unconstitutional conditions of confinement in South Carolina’s juvenile facilities. Section 1988 provides that “[i]n any action or proceeding to enforce a provision of section[ ] ... 1983 ... the court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fee.” 42 U.S.C.A. § 1988(b) (West Supp.1997). Therefore, § 1988 is the statutory mechanism under which Plaintiffs sought attorney’s fees before the district court. Section 803 of the PLRA, however, limits the district court’s ability to award attorney’s fees in lawsuits brought on behalf of “a prisoner who is confined to any jail, prison, or other correctional facility, in which attorney’s fees are authorized under section 1988.” § 803(d) (codified at 42 U.S.C.A. § 1997e(d)(l)). Whether the State is correct in arguing that these limitations apply to the attorney’s fees awarded in the May, August, and October orders depends on whether juveniles detained in the State’s juvenile facilities are “prisoners” confined to a “jail, prison, or other correctional facility.”
It is undisputed that the term “prisoner” in § 803(d) of the PLRA encompasses incarcerated juveniles. Section 803(d) provides that “the term ‘prisoner’ means any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program.” § 803(d) (codified at 42 U.S.CAu § 1997e(h)). “Prisoner” is similarly defined in § 802 of the PLRA.
1.
Section 803 of the PLRA does not expressly define the phrase “jail, prison, or correctional facility.” However, § 802 of the PLRA, which sets forth the procedures through which a class of prisoners such as Plaintiffs may contest constitutional violations pertaining to prison conditions, defines “prison” as “any Federal, State, or local facility that incarcerates or detains juveniles or adults accused of, convicted of, Sentenced for, or adjudicated delinquent for, violations of criminal law.” § 802(a) (codified at 18 U.S.C.A. § 3626(g)(5)). Accordingly, the State contends that because Congress, when enacting the PLRA, intended prisons to include juvenile facilities for the purpose of stating a cause of action under § 802, this court should construe prisons to include juvenile facilities for the purpose of awarding attorney’s fees under § 803(d).
Plaintiffs, however, present four arguments in support of their position that the attorney’s fees limitations set forth in § 803(d) are inapplicable to this case. First, relying on the definition of “institution” found in 42 U.S.C.A. § 1997 (West 1994), Plaintiffs contend that Congress did not intend § 803(d) of the PLRA to apply to juvenile facilities. Section 1997, the definitional section applicable to 42 U.S.C.A. § 1997e (the statutory provision containing the attorney’s fees limitations of the PLRA), was left
(i) for persons who are mentally ill, disabled, or retarded, or chronically ill or handicapped;
(ii) a jail, prison, or other correctional facility;
(iii) a pretrial detention facility;
(iv) for juveniles—
(I) held awaiting trial;
(II) residing for any State purpose in such facility or institution (other than a residential facility providing only elementary or secondary education that is not an institution in which reside juveniles who are adjudicated delinquent, in need of supervision, neglected, placed in State custody, mentally ill or disabled, mentally retarded, or chronically ill or handicapped); or
(v) providing skilled nursing, intermediate or long-term care, or custodial or residential care.
42 U.S.C.A. § 1997(1). In defining “institution,” § 1997 differentiates between a “jail, prison, or other correctional facility” and facilities for juveniles, like the ones that are the subject of this action. Therefore, as Plaintiffs argue, one could conclude by negative implication that since the PLRA attorney’s fee limitations in § 803(d) of the Act (codified at 42 U.S.C.A. § 1997e), apply only to prisoners confined to a “jail, prison, or other correctional facility,” and since 42 U.S.C.A. § 1997(1) distinguishes between a “jail, prison, or other correctional facility” and a juvenile facility, the PLRA’s limitations on attorney’s fees do not apply to juvenile Plaintiffs. Plaintiffs argue that if Congress had intended for the all-encompassing definition of “prison” in § 802 to apply to the attorney’s fees limitations in § 803, it would have modified the definition of “institution” in § 1997 to omit the three'separate categories of facilities and to keep the terminology in Title 42 consistent. See United States v. Langley,
Second, Plaintiffs rely upon the fact that, while both §§ 802 and 803 of the PLRA contain definitions of “prisoner,” which includes juveniles, Congress defined “prison” to include juvenile facilities only in § 802. The district court agreed, reasoning that this omission was intentional, “[gjiven the ease with which the[§ 802] definition could have been included in [§ 803].” (J.A at 71.)
Third, Plaintiffs cite Congress’s historically different treatment of adult and juvenile prisoners. Again, the district court agreed, relying on (1) the distinct difference between the ability of juveniles and adults to protect their own interests; (2) the probability, that juveniles’ rights will be pursued only in class actions which require a higher level of legal skill and long-term commitment of counsel; and (3) that the clear distinction made between juvenile facilities and adult prisons in 42 U.S.C.A. §§ 1997 and 1997a (West 1994) was left unchanged by the PLRA
Finally, Plaintiffs rationalize the apparent inconsistency of defining a juvenile not incarcerated in a “prison” as a “prisoner.” The district court reconciled the definitions by concluding that “[t]his would simply place juveniles who have been transferred to adult
2.
In a case that turns on statutory construction, we begin by examining the literal and plain language of the statute. See Robinson v. Shell Oil Co., — U.S. -, -,
Although Congress did not define the phrase “jail, prison, or other correctional facility” in § 803 of the PLRA, the plain meaning of the phrase undoubtedly encompasses juvenile detention facilities. “Jail” is commonly defined as a “place for the lawful confinement of persons” or a “prison.” Webster’s II New Riverside University Dictionary 650 (1988). It is also defined as a “prison” or a place “usually used to hold persons either convicted of misdemeanors (minor crimes) or persons awaiting trial or as a lockup for intoxicated and disorderly persons.” Black’s Law Dictionary 834 (6th ed.1990). “Correctional institution” is a “generic term describing prisons, jails, reformatories and other places of correction and detention.” Id. at 344. And, “house of correction” is defined as a “prison for the reformation of petty or juvenile offenders.” Id. Congress did not add any language limiting the scope of these words to adult facilities. Rather, Congress prefaced the phrase with the word “any.” In a similar context, the Supreme Court has noted that “the word ‘any’ has an expansive meaning.” United States v. Gonzales, — U.S. -, -,
We acknowledge that Congress placed the attorney’s fees limitations provision, applicable to prisoners confined to “jail, prison, or other correctional facility,” into Title 42, and that § 1997 of Title 42 distinguishes between a “jail, prison, or other correctional facility” and facilities housing juveniles. Therefore, we address the apparent conflict. Because, however, the PLRA’s definition of “prison” (which includes juvenile facilities) is inconsistent § 1997’s implicit definition of “jail, prison, or other correctional facility” (which excludes juvenile facilities), we conclude that the phrase is ambiguous. Cf. Robinson, — U.S. at -,
Having determined that the phrase at issue is ambiguous, we apply the traditional tools of statutory construction. Id. at -,
Section 802 of the PLRA defines the term “prison” as any facility that “detains juveniles or adults accused of, convicted of, sentenced for, [or] adjudicated delinquent for” violating criminal law. § 802(a) (codified at 18 U.S.C.A. § 3626(g)(5)). Given this, and the fact that § 803(d) includes an incarcerated juvenile within its definition of “prisoner”, we conclude that the phrase “jail, prison, or other correctional facility” found in § 803(d) of the PLRA (codified at 42 U.S.C.A. § 1997e) must include juvenile facilities such as the ones that are the subject of this action. This construction of the statute makes the PLRA internally consistent and best furthers Congress’s intentions.
In enacting the PLRA, Congress had far-reaching goals, and nothing in the Act indicates an intent to omit juveniles confined in juvenile facilities from its impact. To the contrary, by enacting § 803 of the PLRA, Congress affirmatively amended 42 U.S.C.A. § 1997e to replace the word “adult” with the word “prisoner,” and then defined “prisoner” to expressly include juveniles adjudicated delinquent of crimes. In addition, § 809(a) of the PLRA (codified at 28 U.S.C.A. § 1932 (West Supp.1997)) specifically limits the revocation of earned release credit to “adult[s] convicted of a crime and confined in a Federal correctional facility” if the district court concludes that they filed a civil claim for a malicious purpose, solely to harass the party against which it was filed, or if the claimant presents false evidence to the court. It would be unnecessary to expressly limit § 809 to adults if the term “correctional facility” only applied to detention facilities housing adults. A comparison of these two sections of the PLRA demonstrates that Congress recognized the difference between juveniles and adults when enacting the PLRA, and intended to impose the new provisions of § 803 of the Act (codified at 42 U.S.C.A. § 1997e), including the restrictions on attorney’s fees found in subsection (d), on all “prisoners,” including juvenile prisoners.
Furthermore, Plaintiffs concede that § 802 of the PLRA (codified at 18 U.S.C.A. § 3626) limits the remedies available to juveniles confined in juvenile facilities in prison conditions lawsuits. We can discern no reason for Congress to limit the more important substantive remedies available to juveniles under § 802 of the PLRA, yet not limit the availability of attorney’s fees under § 803. The purpose of the attorney’s fees provision is to encourage private attorneys to represent plaintiffs bringing meritorious lawsuits to expose unconstitutional prison conditions. The limitations placed on fee awards by § 803 do not undermine this purpose. If private attorneys find that fee limitations hinder their ability effectively to litigate these cases, 42 U.S.C.A. § 1997a (West 1994 & Supp.1997), left intact by the PLRA, authorizes the Attorney General to institute actions on behalf of persons residing in or confined to a jail, prison, or other correctional facility if the Attorney General has reasonable cause to believe that such persons are being subjected to unconstitutional conditions of confinement. See 42 U.S.C.A. § 1997a(a).
B.
Having determined that the PLRA’s limitations on attorney’s fees apply to Plaintiffs, we next address the applicability of the provisions to the fees awarded in the May and August orders for services performed by Plaintiffs’ counsel prior to the enactment of the PLRA.
1.
Plaintiffs argue that the State waived application of the provisions to work performed prior to the enactment of the PLRA during oral arguments before this court on May 6, 1996. At that time, the State was appealing a November 22, 1995 order in which the district court awarded Plaintiffs attorneys’ fees for work related to this ongoing litigation. As previously noted, see supra n. 4, in response to inquiry during oral argument as to whether the State had any argument based on the attorney’s fees provisions contained in the recently enacted PLRA, the State “specifically disavowed any such claims.” Alexander S. ex rel. Bowers v. Boyd,
We do not consider the State’s waiver of application of the PLRA’s attorney’s fees provision to the November 1995 order to be a waiver of the statute’s applicability to all future awards based on work completed prior to April 26, 1996. The November order is a separate order, independent of the February, May, August, and October orders currently being appealed. To restrict the State’s arguments in this appeal to those argued in a previous appeal is obviously impermissible. Furthermore, because the parties have not, prior to this appeal, litigated the applicability of the PLRA’s attorney’s fees limitations before this Court, we are not bound by res judicata.
The State timely raised the statute’s applicability for the district court’s consideration prior to the issuance of the May order. In its memorandum, the State argued that the restrictions of § 803(d) (codified at 42 U.S.C.A. § 1997e(d)) applied to Plaintiffs’ pending fee applications for work performed from May 1995 until February 1996. The State reiterated this position in later memorandums filed in objection to Plaintiffs’ subsequent fee applications. As a result, we conclude that the State preserved the issue of the amendments’ application to all awards made by the district court subsequent to the enactment of the PLRA.
2.
Section 803(d) of the PLRA provides that “[n]o award of attorney’s fees” ordered in an action brought by a prisoner claiming unconstitutional conditions of confinement “shall be based on an hourly rate greater than 150 percent of the hourly rate established under section 3006A of Title 18, for
We acknowledge that other courts that have addressed the applicability of the attornej^s fees provisions of § 803 of the PLRA to pending cases have refused to apply the limitations, concluding that such application would have an impermissible retroactive effect. See Jensen v. Clarke,
Absent an express directive from Congress, we must apply a newly enacted statute to pending cases unless doing so would give the statute “retroactive effect.” Id. at 277,
In Landgraf, the Supreme Court recognized several types of statutes that, even though enacted after the events giving rise to the underlying lawsuit, could be applied to pending cases without having a retroactive effect. For example, the Court noted that application of a new statute that affects only secondary, rather than primary, conduct does not give rise to concerns about retroactivity.
We conclude, therefore, that application of the PLRA’s fee limitations to the awards made in the district court’s May and August orders does not have an impermissible retroactive effect because the determination of attorney’s fees awards, which are collateral to the main cause of action, does not attach new legal consequences to completed events. Moreover, the modifications made by § 803 of the PLRA to a plaintiffs entitlement to attorney’s fees are not so fundamentally unfair as to result in manifest injustice. Cf. Farrar v. Hobby,
C.
Finally, we address the new standards imposed by the PLRA for determining a fee award in a prison conditions suit. Section 803(d) of the PLRA requires the district court to conduct a three-step analysis when reviewing attorney’s fees requests. First, the court must be satisfied that the plaintiff is eligible for fees under 42 U.S.C.A. § 1988. Prior to the enactment of the PLRA, a plaintiff in a prison conditions lawsuit obtained attorney’s fees solely through 42 U.S.C.A. § 1988. Section 1988 allows the district court to award reasonable attorney’s fees to a prevailing party “[i]n any action or proceeding to enforce a provision of seetion[ ] ... 1983.” 42 U.S.C.A. § 1988(b). “[T]o qualify as a prevailing party, a civil rights plaintiff must obtain at least some relief on the merits of his claim. The plaintiff must obtain an enforceable judgment against the defendant from whom fees are sought, or comparable relief through a consent decree or settlement.” Farrar,
1.
The State challenges the district court’s finding that Plaintiffs were eligible for fees pursuant to 42 U.S.C.A. § 1988 on two grounds. First, the State contends that the
a.
The State argues that Plaintiffs failed to prove their initial eligibility for fees under 42 U.S.C.A. § 1988 for work relating to the December staffing hearing and modification motion. The State contests Plaintiffs’ status as prevailing party in the resulting February order because (1) the order was only an “interim,” rather than a final order, and (2) the State consented to the revised plan, rendering the Plaintiffs’ motion nothing more than a “catalyst” for the modification. We disagree and hold that the district court properly determined that Plaintiffs were the “prevailing party” in the February order and, therefore, were eligible for fees under 42 U.S.C.A. § 1988.
Part of the remedial plan initially proposed by the State included an increase in the number of security staff to provide minimal levels of physical safety for the juveniles housed in the State’s juvenile facilities. The proposed plan, in addition to increasing staff, included a population reduction of 100 juveniles by July 15, 1996, and 200 juveniles by July 15, 1997. During the June 1994 trial, the juvenile population ranged from 670 to 730 at institutions that had a rated capacity of 299. By July 13, 1995, however, the juvenile population had risen to 851, rather than declining. As a result, Plaintiffs moved for emergency relief, requesting additional staffing. Also, at the August 1995 status conference, the special master appointed to monitor the State’s compliance with the plan lamented that the facilities remained unsafe and that an emergency situation existed.
In response, the State asked the district court to grant it time to implement the original remedial plan. The State also argued that there had been no change in circumstances warranting the relief sought by Plaintiffs. Plaintiffs nevertheless moved for a modification of the remedial plan based on the unexpected increase in the juvenile population. Plaintiffs argued that the modification was necessary because the State’s original plan was predicated upon a reduction in population.
During the subsequent three-day hearing in December 1995, Plaintiffs presented testimony from several juvenile witnesses, Department of Juvenile Justice employees, and two experts. At the time of the hearing, the juvenile population had increased to approximately 1000. Nevertheless, at the beginning of the hearing the State maintained there had been no change in conditions at the juvenile facilities and that the modifications requested by Plaintiffs were premature and unnecessary. However, at the completion of Plaintiffs’ case, the State conceded the need for additional security staffing and proposed its revised remedial plan. The State also conceded that it had begun increasing personnel shortly before the December hearing, and that it planned additional increases due to the rise in the juvenile population.
The district court issued an order on February 16, 1996, requiring the State to increase staffing to “at least that level of staffing set forth in [the State’s revised] plan.” (JA. at 24.) The court further found that the order was “only interim and [was] subject to further modification after an appropriate amount of time has passed to allow evaluation of [the State’s] modified staffing plan.” (JA at 24.) The district court specifically concluded that Plaintiffs were the prevailing party in the December action and provided for the submission of affidavits for an award of attorney’s fees for the staffing issue and monitoring activities since the January 1995 order.
The State contends that Plaintiffs were not a prevailing party, but merely a catalyst which encouraged the State to adopt an increased staffing plan. This Court has clearly rejected the “catalyst theory” as a means of acquiring prevailing party status for the purposes of 42 U.S.CA § 1988. See Arvinger v. Mayor and City Council of Bal
Under these circumstances, the fact that the new plan was “voluntarily” proposed by the State rather than the court is irrelevant. Plaintiffs moved for a modification of the State’s original remedial plan. The State opposed Plaintiffs’ motions, arguing that their original plan should be given time to work. It was not until the conclusion of Plaintiffs’ presentation at the December hearing, during which the State attempted to discredit many of Plaintiffs’ witnesses, that the State conceded that increased staffing was necessary to protect the juveniles housed in the State’s juvenile facilities. Furthermore, while the State implemented some of the ordered changes prior to the hearing, many were not instituted until afterwards, in accordance with the district court’s order. As a result of Plaintiffs’ motions and the subsequent hearing, the district court ordered the State to modify its original remedial plan to provide for increased staffing at the levels proposed by the State during the hearing. This order memorialized the “resolution of [a] dispute which change[d] the legal relationship between [the State] and [Plaintiffs].” Farrar,
b.
The State also challenges the awards of attorney’s fees in the February 16, May 29, and August 30, orders, arguing that the district court abused its discretion when it failed to expressly consider all the factors articulated in Barber v. Kimbrell’s Inc.,
We have enunciated twelve factors that the district court must consider when determining the reasonableness of an attorney fee request. See Barber,
The court wül not require plaintiffs to file affidavits which duplicate the general attorney background information and billing rates filed in support of the prior fee application except as to any new attorneys or attorneys for whom plaintiffs are now claiming a different billing rate. The court wül rely on the affidavits previously filed in this matter absent specific objection from defendants.
(J.A. at 30 (emphasis added).)
Nevertheless, we may correct a forfeited error. See United States v. Olano,
2.
Although we conclude that the district court properly found that Plaintiffs were entitled to fees for the work performed relating to the December motion and that the fee
IV.
In conclusion, we reverse the district court’s holding that the attorney’s fees limitations set forth in § 803(d) of the PLRA (codified at 42 U.S.C.A. § 1997e(d)) are limited to prisoners confined to adult facilities. Rather, we conclude that § 803(d)’s attorney’s fee limitations apply to any action brought by an incarcerated juvenile challenging the constitutionality of his conditions of confinement pursuant to 42 U.S.C.A. § 1983 or any other Federal law in which the attorney’s fee is awarded subsequent to the enactment of the PLRA. We find no evidence in the express language of the PLRA or its legislative history to indicate that Congress intended to exclude juveniles confined in juvenile facilities from the far-reaching effects of the PLRA. To the contrary, an examination of the entire Act reveals a concerted effort to include juveniles within the scope of the PLRA.
We affirm the district court’s conclusion that Plaintiffs are eligible for attorney’s fees under 42 U.S.C.A. § 1988. However, we remand the appealed orders and direct the district court to apply the attorney’s fees limitations of the PLRA when determining the amount of, and Plaintiffs’ entitlement to, attorney’s fees.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
Notes
. Plaintiffs do not dispute the State's computation that the maximum rate is $112.50 per hour under 42 U.S.C.A. § 1997e(d)(3) (West Supp. 1997). However, the State does not concede that Plaintiffs’ counsel's hourly rate should automatically be set at the maximum rate for all attorneys involved. The district court, finding that the attorney’s fees limitations of the PLRA were inapplicable to this case, awarded Plaintiffs' lead counsel $225.00 per hour and associate counsel $100.00 per hour. Paralegal services were compensated at an hourly rate of $65.00.
. We consolidated the State's appeal of the February 16, 1996, May 29, 1996, and August 30, 1996 orders (No. 96-1950) with its later appeal of the October 2, 1996 order (No. 96-2589). The February order does not award fees. The State’s appeal of that order is limited to the district court's conclusion that Plaintiffs achieved “prevailing party” status and therefore were eligible for fees related to a December 1995 hearing. The State challenges the amount of fees awarded in the May, August, and October orders for work related to the December 1995 hearing and subsequent monitoring services.
. Specifically, the State was asked
if it made any additional argument based on the recent amendments to the Civil Rights of the Institutionalized Persons Act, 42 U.S.C. § 1997 (1994). The State specifically disavowed any such claims. We note that it is not at all clear whether the 1996 amendments, which apply only to persons confined to a "jail, prison or other correctional facility” apply to juveniles confined in juvenile institutions, or even if they did whether they would apply retroactively. However, we need not reach that question here in view of the State’s decision not to pursue any argument under the Act.
Alexander S. ex rel. Bowers v. Boyd,
. The district court stated that it would rely on previously filed affidavits regarding general attorney background information and billing rates, except as to any new attorneys, absent specific objection from the State. The district court then instructed:
[The State] shall be allowed ten days after service of plaintiffs initial affidavits and billing documents to draw the court's attention to any perceived inadequacies in the form of plaintiffs’ fee submission to the court. Plaintiffs shall be allowed ten days after the filing of [the State's] specification of inadequacy to supplement the previously filed documents. [The State] shall then be allowed the usual fifteen days after service of plaintiffs’ supplementation to provide any objections to the content of plaintiffs’ submission.
(J.A. at 30.)
. Although the present appeal focuses on the language of §§ 802 and 803 of the PLRA, the Act amended numerous sections of Titles 18, 28, and 42. Section 802 amended 18 U.S.C.A. § 3626 to narrow the relief available to prisoners claiming unconstitutional conditions of confinement. Section 803, in addition to completely revising 42 U.S.C.A. § 1997e, made technical revisions to 42 U.S.C.A. §§ 1997a, 1997b, and 1997c. Section 804 of the PLRA amended 28 U.S.C.A. § 1915 to require, among other things, prisoners proceeding in forma pauperis to pay a partial filing fee before filing a lawsuit or proceeding
. Specifically, § 802(a) (codified at 18 U.S.C.A. § 3626(g) (West Supp.1997)), defines prisoner as "any person subject to incarceration, detention, or admission to any facility who is accused of. convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program."
. Under 42 U.S.C.A. § 1997a (West 1994), the Attorney General has the authority to institute a civil action on behalf of a person residing in or confined to an "institution,” as defined by 42 U.S.C.A. § 1997 (West 1994), seeking relief for violations of statutoiy or constitutional rights. However, § 1997a specifically limits the Attorney General’s authority to bring actions on behalf of a person confined to a “jail, prison, or other correctional facility" to constitutional violations only.
. While we are specifically analyzing the language codified at 42 U.S.C.A. § 1997e(d)(3) in this section to determine its applicability to fees incurred prior to, but awarded subsequent to the enactment of the PLRA, the same analysis applies to the fee restrictions contained in subsections (d)(1) (heightening eligibility requirements for attorney’s fees) and (d)(2) (limiting fees available when a monetary judgment is awarded). Both § 1997e(d)(l), discussed at III.C.2., and (d)(2), which is inapplicable to this case, expressly apply to all fee awards made subsequent to the enactment of the PLRA.
. The Dissent argues that "the'award’ of attorney’s fees occurred on February 16, 1996 when the court set out its instructions regarding how further [monitoring] fees would [be] paid.” Dissenting Op. at 1394. We disagree. While the district court recognized that Plaintiffs were “entitled” to attorney’s fees for future monitoring activity in the February 16 order, it did not award fees. Rather, its limited ruling on this issue was a finding that it was "appropriate ... for plaintiffs' counsel to play some role in this monitoring process" and to be compensated. The district court stated that its decision to "consider fee applications for monitoring activity [was] not ... prior approval of any fee request.” (J.A. at 29.) As the Dissent concedes, the district court had yet to determine “at what rate and for how many hours” counsel was to be compensated. Dissenting Op. at 1394. To conclude, as the Dissent does, that the district court awarded Plaintiffs attorney’s fees on February 16 for all future monitoring activity, without assessing the reasonableness of such fees, is to condone pure speculation and arbitrariness by the district court. We decline to interpret the district court’s order in such a way. Moreover, to adopt the Dissent's rationale would require us to find the PLRA’s fee restrictions inapplicable to all attorney’s fees awarded in this case for monitoring activity related to the implementation of the remedial plan, even when the monitoring occurred subsequent to April 26, 1996. Even the Dissent does not propose this result.
.Contrary to the Dissent’s assertion that we are creating a circuit split as to the retroactive application of the PLRA’s attorney's fees restrictions, Plaintiffs’ case is distinguishable from both Jensen v. Clarke,
. While application of the PLRA's fee limitations may upset the expectations of Plaintiffs’ counsel, it cannot be said that the imposition of the restrictions directly affects the Plaintiffs. Therefore, because a statute has a retroactive effect under Landgraf only when it negatively impacts a party’s expectations or rights, statutory restrictions as to the amount and availability of attorney's fees will not generally raise retroactivi1y problems. See Landgraf v. USI Film Prods.,
. In Landgraf, the Court noted several additional examples of new statutes whose application to pending cases was proper. These included statutes whose plain language unambiguously requires application to pending cases, see United States v. Schooner Peggy, 1 Cranch [5 U.S.] 103,
. The district court ruled that if it had applied the fee limitations of § 803(d), it would have awarded counsel for Plaintiffs the maximum hourly rate available. We express no opinion as to the appropriateness of such an award. The district court may, of course, reconsider the award on remand.
. The Barber factors include:
(1) the time and labor expended; (2) the novelty and difficulty of the questions raised; (3) the skill required to properly perform the legal services rendered; (4) the attorney’s opportunity costs in pressing the instant litigation; (5) the customary fee for like work; (6) the attorney’s expectations at the outset of the litigation; (7) the time limitations imposed by the client or circumstances; (8) the amount in controversy and the results obtained; (9) the experience, reputation and ability of the attorney; (10) the undesirability of the case within the legal community in which the suit arose; (11) the nature and length of the professional relationship between the attorney and client; and (12) attorneys’ fees awards in similar cases.
. We note that the district court had dealt with the issue of attorney's fees awards in the underlying case since the submission of the first motion for attorney's fees by Plaintiffs on April 24, 1992. As a result, the district court and the parties were intimately familiar with the necessary background information used to evaluate each attorney and the type of work involved in this case.
. Also, Plaintiffs voluntarily reduced fees by $8,143 in response to the State's objections. (J.A. at 59.)
.In concluding that the district court carefully considered all the pertinent factors when determining the reasonableness of the fees awarded pursuant to 42 U.S.C.A. § 1988, we further rely on our affirmance of an earlier district court order awarding attorney's fees in this case. In Alexander S. ex rel. Bowers v. Boyd,
Concurrence Opinion
Concurring in Parts, I., II., III.A. and C., IV., and in the judgment:
Section III.B. of Judge Williams’ opinion applies the Supreme Court’s Landgraf analysis to determine whether 42 U.S.C.A § 1977e(d)(3) (West Supp.1997) has a “retroactive effect.” I write separately to state why I believe that application of § 1997e(d)(3) to the fees at issue here presents no retroactivity question.
Section 1997e(d)(3) provides that attorney’s fees under 42 U.S.C. § 1988 “shah not be awarded, except to the extent that” the hourly rate is capped at “150 percent of the hourly rate established under section 3006A of Title 18.” (emphasis added). The plain language of the statute directs that it applies when a court makes its award, not when an attorney completes his work, or totals his time, or submits his fee request, but when a court awards fees. Therefore, the only “retroactivity” question involving § 1997e(d)(3) is whether it applies to fees awarded before its enactment. Because the fees at issue here were awarded on May 29, 1996, a month after the effective date of the statute (April 26, 1996) this case presents no retroactivity question.
I cannot accept Judge Murnaghan’s suggestion that the district court awarded fees on February 16, 1996. The district court’s February 16 order declared plaintiffs entitled to fees; it awarded them nothing. Even after a victory on the merits or a declaration of entitlement to fees an attorney has no right to a specific fee under § 1988 until the actual fees are awarded. A district court must apply a twelve factor test, and can always grant an attorney less than he requests. In short, because § 1997e(d)(3) only affects the rate at which attorneys are compensated it has no “retroactive effect” on their entitlement to some fees — it does not “impair rights a party possessed when he
I note that, if Landgraf did apply, its initial step would resolve this case. That step requires determination of whether “Congress has expressly prescribed the statute’s proper reach.” Id. at 280,
I recognize that Jensen v. Clarke,
Dissenting Opinion
dissenting:
Because I would follow the Seventh and Eighth Circuits and find that the attorney’s fee provision in 42 U.S.C.A. § 1997e does not apply retroactively, I dissent as to part II. B.2.
Section 803(d) of the PLRA provides that in cases such as the case at bar, “[n]o award of attorney’s fees” shall be awarded greater than 150% of the local hourly rate for court-appointed counsel.
In Landgraf v. USI Film Products,
Nothing in the section 803(d) “expressly prescribed [its] proper reach.” (emphasis added). The Majority argues that the language “no award of attorney’s fees” expressly prescribes the statute’s reach in that it indicates that the statute applies when fees are awarded. However, such language certainly does not “expressly” indicate that the Congress intended § 803(d) to apply retroactively. See also Leland v. Federal Ins. Adm’r,
In fact, there is evidence that Congress intended that § 803(d) should apply prospectively. Section 802 of the PLRA specifically provides that § 802 applies to relief “granted or approved before, on, or after the date of enactment of this title.” Section 803, however, is silent in that regard. Although the fact that Congress expressly indicated that § 802 applies retroactively and did not do so for
Secondly, a plain reading of the statutory language in the instant case does not weigh in favor of retroactivity. Based on the Ma-. Jonty’s argument, the statute applies on the date attorney’s fees were awarded. Thus, if attorney’s fees are awarded after the date of the PLRA, the PLRA applies even if the work was done prior to the enactment of the PLRA. It concludes that attorney’s fees were awarded after the date of passage of the PLRA and therefore the PLRA applies. However, under the facts in the instant case, attorney’s fees were awarded well before the passage of the PLRA.
As the Majority concedes, the Appellees were awarded fees for monitoring activities. In its February 16th order, the district court set up specific instructions regarding how the fees would be paid. Moreover, there was no question that the February 16th order granted attorney’s fees to the parties for monitoring activities, the only questions were at what rate and for how many hours. Therefore, the “award” of attorney’s fees occurred on February 16, 1996 when the court set out its instructions regarding how further fees would be paid. These fees were not “ordered” until after the passage of the PLRA, but they were “awarded.”
Even if this reading of the statute is inaccurate, it certainly indicates that the statement “award of attorney’s fees” is insufficient to establish that Congress clearly proscribed the reach of the statute. Since Congress did not expressly prescribe the reach of § 803, the Court must determine whether the statute would have retroactive effect. Landgraf,
In the instant case, plaintiffs’ attorneys had a legitimate expectation that they would receive payment for services rendered. The district court awarded sueh payment in its February 16 order. The court clearly set out procedures, which, if followed by the plaintiffs’ attorneys, would entitle plaintiffs’ attorneys to receive compensation at the prevailing rate. Plaintiffs’ attorneys continued their monitoring activities based on such an understanding. Thus, the statute would certainly have retroactive effect.
The Seventh and Eighth Circuits have reached similar results. In Jensen v. Clarke,
The Majority argues, based on Bradley,
However, in the case at bar, the parties’ expectations, pursuant to the February order, were that they would be paid the prevailing rate for attorney’s fees. Since the parties had previously been awarded fees, the rate for such fees was already set by the court. The district court’s order recognized this and did not require plaintiffs attorneys to refile affidavits regarding fees. Therefore, unlike in Bradley, the attorneys in the instant case had an expectation that they would be paid. Reducing these fees would place an “unforeseeable obligation” on plaintiffs attorneys because, after services had been provided, they would be required to provide those services at a reduced rate.
Since Congress did not expressly provide that § 803(d) applied retroactively and since applying the statute retroactively would have retroactive effect, the traditional presumption against retroactivity should apply. However, even if the statute does not have retroactive effect, the statute should not be applied retroactively because doing so would result in “manifest injustice.” Id. at 711,
In Bradley, the Court held that “a court is to apply the law in effect at the time it renders its decision, unless doing so would result in ‘manifest injustice’ or there is statutory direction or legislative history to the contrary.” Id. Applying this statute retroactively would clearly result in “manifest injustice.”
The parties in the instant case have been embroiled in litigation for several years. Plaintiffs have sought and been awarded fees on several occasions. In addition, plaintiffs’ attorneys were involved in continued monitoring activities. Holding § 803(d) retroactive and applying a reduced rate for attorney’s fees for work already done will certainly create a manifest injustice on the parties. See Jensen,
Moreover, Bradley also held that a statute should not be applied retroactively if “there is statutory direction or legislative history to the contrary.” Bradley,
Since I believe that § 803(d) does not apply to work completed before the passage of the PLRA, and because I believe it is manifestly unjust to apply § 803(d) retroactively in the instant case, I dissent as to part III.B.2.
. As the majority points out, plaintiffs do not dispute that the rate under the PLRA is $112.50. Although the state does not concede that plaintiff's counsel’s hourly rate should be set at $112.50, the district court specifically stated that if the PLRA applied it would set counsel's fees at the maximum amount.
. The fees were not “ordered” until after the passage of the PLRA. In addition, the court’s August 30, 1996 order referenced and incorporated the previous order. The specific fee amount in the August 30th order dated back to the February 16th award and amounted to a nunc pro tunc award. The fact that the specific fee calculation was made after the award does not mean that the award itself was not made on an earlier date.
. In its February 16, 1996 order, the district court stated: "The court further finds that plaintiffs are entitled to fees ... related to monitoring activities.” J.A. at 31. In my view, this is an award of attorney's fees.
. I concede that this does not express clear intent; however, it does indicate that there is “statutory or legislative history to the contrary” regarding retroactivity. Bradley,
Furthermore, the Majority indicates that one of the major purposes of the Act was to stem frivolous law suits. Applying the statute retroactively in no way furthers this goal. In fact, in the instant case, it is clear that the lawsuit was not frivolous in that plaintiffs were determined to be the prevailing parties. Obviously their suit could not have been frivolous if they prevailed in their action.