William R. CODY, individually and on behalf of all others similarly situated, Plaintiff-Appellee,
v.
Carole HILLARD, President of the Board of Charities and Corrections; Frank Brost, Vice President; Ted Spaulding, Member; D.A. Gellhoff, Member; Lyle Swenson, Member; James Smith, Executive Secretary; Herman Solem, Warden of the South Dakota State Penitentiary; sued individually and in their official capacities, Defendants-Appellants.
No. 00-3918.
United States Court of Appeals, Eighth Circuit.
Submitted: December 14, 2001.
Filed: September 11, 2002.
COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED James E. Moore, argued, Sioux Falls, SD, for appellant.
Elizabeth Alexander, argued, Washington, DC (Tom Clayton, on the brief), for appellee.
Before McMILLIAN, JOHN R. GIBSON, and MAGILL, Circuit Judges.
JOHN R. GIBSON, Circuit Judge.
The Cody class1 in this long-running prison civil rights litigation seeks attorneys' fees for counsel's work that culminated in a private settlement agreement dismissing the case without prejudice. Because the class had earlier obtained a consent decree lasting more than a decade, and because the parties' earlier practice had been for the defendants to pay the class's legal fees, the district court2 awarded fees. The State appeals, and we affirm.
I.
The class members are South Dakota prisoners. Defendants are that state's main prison officials, whom we refer to as the State. In 1980 the class sued under 42 U.S.C. § 1983 to challenge conditions of confinement in several South Dakota prisons as violative of the Eighth and Fourteenth Amendments. After a bench trial, the district court held that numerous conditions in the prison system were unconstitutional. Cody v. Hillard,
In the years that followed, the State paid attorneys' fees to the class on multiple occasions beginning at least as early as 1985. The State did not dispute the class's entitlement to fees, though the parties sometimes negotiated the reasonableness of particular fee and expense requests.
The court held evidentiary hearings in 1987 and 1992 to monitor the State's compliance with the consent decree. After the 1987 hearing the court entered a supplemental order outlining procedures to identify "deficiencies in compliance." After the 1992 hearing the court found that the State had failed to comply with the decree in certain respects relating to sanitary conditions in the prison and inmate fire safety. It entered supplemental remedial orders.
On April 16, 1996, the State, arguing that it was now in substantial compliance, moved under Fed.R.Civ.P. 60(b) to dissolve the consent decree and supplemental orders. The class opposed the motion. After submissions, but without an evidentiary hearing, the district court entered a two-paragraph order terminating the decree. The class appealed. We remanded, holding that the district court's order had not provided a sufficient factual or legal basis to explain its decision. Cody v. Hillard,
After remand, before the district court entered any further ruling, the parties entered into a settlement agreement stipulating that the case would be dismissed without prejudice. Most of the agreement consists of promises by the State to take specific steps to improve prison conditions. The agreement contains no provision expressly discussing attorneys' fees.
The district court approved the settlement agreement on February 17, 2000. Cody v. Hillard,
The State appeals this award. It presents the same arguments it raised below: (1) that with respect to most of the work at issue here, the class was not a "prevailing party" under 42 U.S.C. § 1988; (2) that the award was contrary to the Prison Litigation Reform Act, which limits fees not "directly and reasonably incurred" in proving a violation, see 42 U.S.C. § 1997e(d)(1)(A) (2000); and (3) that the class waived any right to seek attorneys' fees by entering into a settlement agreement silent about fees. We consider each argument in turn.
II.
Under 42 U.S.C. § 1988, district courts may award attorneys' fees to the "prevailing party" in suits brought under 42 U.S.C. § 1983 and other civil rights statutes. A plaintiff who prevails under a statute covered by § 1988 is normally entitled to fees. Wray v. Clarke,
The Supreme Court recently clarified the meaning of "prevailing party" in Buckhannon Bd. & Care Home, Inc. v. West Va. Dep't of Health & Human Resources,
Here, the class obtained a court-ordered consent decree which governed the operation of the prison for twelve years. This was clearly a "judicially sanctioned change" in the parties' relationship that conferred prevailing party status on the class under Buckhannon. Id. at 605,
Nevertheless, that a plaintiff has once established prevailing party status does not make all later work compensable. Compensability is subject to several limitations. First, the award of fees should take into account the degree of a plaintiff's success in the case as a whole. Jenkins,
It is helpful to divide the period of time for which the class seeks fees into three phases. See Pennsylvania v. Delaware Valley Citizens' Council,
One of the State's arguments against prevailing-party status applies to the entire period at issue. The district court's 1997 order said it "vacated" the consent decree and remedial orders in the case, rather than saying it "terminated" them. Some courts have expressly distinguished these terms. In construing the automatic termination provisions of the Prison Litigation Reform Act, the First Circuit stated that "`terminate' means `to put an end to' or `to end,' whereas `vacate' means `to annul' or `to render ... void.'" Inmates of Suffolk County Jail v. Rouse,
We are reluctant to consider this argument since it was not clearly articulated until the State's reply brief. See Akeyo v. O'Hanlon,
The State does not otherwise dispute that class counsel's activity in the first of the three phases was compensable under prevailing-party case law. A district court may award fees to a prevailing party for reasonable postjudgment monitoring. Association for Retarded Citizens of North Dakota v. Schafer,
The State does argue, however, that the class members fail to qualify as prevailing parties with respect to the second and third phases, which begin with the State's motion to vacate the decree. The State maintains that this part of the litigation was not "inextricably intertwined" with the constitutional violations recognized in the class's consent decree, because the settlement agreement the parties finally entered into after remand addressed issues not contained in the decree. Hence the class cannot claim fees unless it "prevailed" anew on these issues under Buckhannon's standards. Securing the settlement agreement, the State further argues, was not enough to do this.
We reject the State's contention with respect to the second phase, resisting the motion to vacate. We have held before that work done to defend a remedy for a constitutional violation is inextricably intertwined with the litigation that yielded that remedy. See Jenkins,
Similar reasoning justifies compensating class counsel's activity in the third phase, negotiating the settlement agreement after remand. The settlement agreement's provisions correspond to the more general provisions of the original consent decree and the supplemental remedial orders. As the district court earlier observed, the agreement
contain[s] more specific language than is found in the 1985 Consent Decree. For example, the Consent Decree provides that defendants "shall provide proper medical screening for newly admitted inmates" while the Settlement Agreement specifies diagnostic and infection control procedures consistent with Center for Disease Control guidelines. In addition, the Consent Decree states that "adequate ventilation" must be provided in the West Hall shower, while the Settlement Agreement specifies that defendants shall provide at least ten air exchanges per hour.
Cody,
III.
Because the class members are prisoners, their civil rights suit is also subject to the Prison Litigation Reform Act of 1996, Pub.L. No. 104-134, 110 Stat. 1321-1371, or PLRA, which imposes special limitations on fee awards. It provides:
(1) In any action brought by a prisoner who is confined to any jail, prison or other correctional facility, in which attorney's fees are authorized under [42 U.S.C. § 1988], such fees shall not be awarded, except to the extent that —
(A) the fee was directly and reasonably incurred in proving an actual violation of the plaintiff's rights protected by a statute pursuant to which a fee may be awarded under [42 U.S.C. § 1988]; and
(B)(i) the amount of the fee is proportionately related to the court ordered relief for the violation; or
(ii) the fee was directly and reasonably incurred in enforcing the relief ordered for the violation.
42 U.S.C. § 1997e(d)(1) (2000). The State argues that this provision bars any award of fees for the work done by class counsel after March 13, 1997, when the district court entered its order vacating the consent decree. The State claims that because the work after this event yielded only a private settlement agreement, it was not "directly and reasonably incurred in proving an actual violation of the plaintiff's rights," § 1997e(d)(1)(A), and so is not compensable.
To evaluate this argument we must interpret § 1997e(d)(1), which, like other parts of the PLRA, "is not a paragon of clarity." Rouse,
Statutes are to be interpreted as a whole, however. United States v. Talley,
A reasonable reading of the statute accomplishes this. Under the PLRA, attorneys' fees can be awarded in a prisoner civil rights case only if the prisoner "prov[es] an actual violation of ... rights" protected by a relevant statute. § 1997e(d)(1)(A). Once a violation has been proven, later work is compensable if it is "directly and reasonably incurred in enforcing the relief ordered" for the violation. § 1997e(d)(1)(B)(ii).4 Accord Webb v. Ada County,
The first phase is routine monitoring prior to the filing of the state's motion to vacate. This work was performed before the PLRA's effective date of April 26, 1996, so the statute does not apply to it. Hadix,
The second phase is the class's litigation from April 16, 1996 to March 27, 1998, opposing the motion to vacate. The PLRA governs most of this work. However, this work satisfies the PLRA's requirements. The class members "prov[ed] ... actual violation[s] of [their] rights" at the start of the litigation by obtaining a bench verdict in their favor and a consent decree. Cf. Siripongs v. Davis,
Awarding fees is thus authorized to the extent that class counsel directly and reasonably incurred them in enforcing the relief ordered for the violations. § 1997e(d)(1)(B)(ii). There is little precedent applying this requirement. One authority states: "The implication of the provision... is that only services calculated to enforce, by noncompliance or contempt motion, for example, the judgment and not merely to monitor the defendant's compliance with it, may be compensable under § 1988." 2 Martin A. Schwartz & John E. Kirklin, Section 1983 Litigation § 2.8, at p. 39 (3d ed.1997). We agree, but note that noncompliance and contempt motions are not the only types of work compensable under § 1997e(d)(1)(B)(ii). We hold that the class's effort to prolong the efficacy of the remedial decree was time spent "enforcing" that decree, and is fully compensable. Whether a plaintiff is pressing a contempt motion or defending against a motion to vacate, in both cases the point is to give effect to an existing remedy, suggesting that the two circumstances should be treated alike. The Supreme Court has suggested such an equivalence. In Delaware Valley, the Court considered a victorious plaintiff's counsel's participation in a separate administrative proceeding that threatened to curtail the remedy the client had gained in court. The Court held this administrative litigation to be compensable. It observed that "[p]rotection of the full scope of relief afforded by the consent decree was ... crucial to safeguard the interests asserted by [the plaintiff]," describing this effort as "enforcement of the decree."
We also hold that the work in the third phase of litigation, securing the settlement agreement, is compensable under the PLRA. As discussed in Part II supra, the settlement agreement sets forth specific responses to constitutional violations that were acknowledged in the trial court's decision and the consent decree. It is reasonable to regard the work class counsel did to secure these parts of the agreement as work "incurred in enforcing" the decree. § 1997e(d)(1)(B)(ii).
IV.
The State's final argument, applicable to all three phases of class counsel's work, is that the class waived its right to seek fees by entering into the private settlement agreement. As support the State cites Young v. Powell,
Young was an employment discrimination suit and Wray a prisoner civil rights suit, but their procedural facts were the same. In both cases the parties settled before trial and the plaintiff obtained no consent decree. The parties entered into a settlement agreement that purported to resolve all disputed issues and said nothing about plaintiff's entitlement to attorneys' fees. Young,
Wray and Young imply that if the parties to a civil rights litigation enter into a settlement agreement before entry of an enforceable judgment or consent decree, and the agreement purports to resolve all issues in the case, then it will be presumed to exclude an award of attorneys' fees to plaintiff unless the parties expressly provide to the contrary. This rule has added force after Buckhannon, since that case clarifies that a plaintiff is rarely, if ever, legally entitled to court-awarded fees unless he or she has gained a consent decree or judgment.
However, no presumption against fees applies here. The settlement we interpret was reached after the class won a consent decree, clearly establishing its status as a prevailing party. In addition, the agreement here, unlike the agreements at issue in Wray and Young, nowhere purports to resolve all disputed issues. We must therefore determine the parties' intent from other features of the agreement. We analyze settlement agreements according to general contract law principles. Gilbert v. Monsanto Co.,
The class argues that the text of the agreement implicitly preserves its right to seek fees. One provision permits plaintiffs to inspect the South Dakota State Penitentiary for three years after the date of the agreement. It specifies that "[t]he cost of any such inspection will be borne by the plaintiffs." The class submits that this provision only makes sense against a background assumption that it would be compensated for the time and effort that its counsel put into the case. We agree that this provision tends to support the class's reading of the document. See Crowley v. Texaco, Inc.,
This argument is at least sufficient to establish that the agreement is textually ambiguous with respect to fees. In such a circumstance the district court could properly consider extrinsic evidence of the parties' prior conduct, as it did. A course of dealing between the parties may explain or supplement an agreement's meaning in matters left ambiguous by its express language. See Swiden Appliance & Furniture, Inc. v. Nat'l Bank of S.D., E. Branch,
The court held that the agreement permitted a fee petition after observing that the "defendants [have] ma[d]e periodic payments of attorney fees to plaintiffs over the course of twelve years." Mem. Op. at 9. This history further distinguishes the present case from Wray and Young, where no fees had ever been paid. The State responds that other extrinsic evidence in the record undermines the conclusion the district court drew from the parties' dealings. It cites a February 26, 1996, letter from the South Dakota Attorney General's office to the class's Washington, D.C. counsel, in which counsel for the State wrote: "As I indicated on the telephone, I question the need for continued monitoring in this matter and the attorney fees incurred as a result thereof." The State argues that this letter disputed the class's entitlement to fees for monitoring work. This argument is not persuasive. If anything, the letter reflects a realization that the State would be paying any attorneys' fees "incurred as a result" of the "continued monitoring" of the case. To the extent that the letter raises a dispute, the dispute relates only to the reasonableness of continued monitoring, not to the class's status as a prevailing party entitled to fees for work class counsel reasonably performed. Alternately, the district court could have reasonably interpreted the letter as evidence that the parties did not intend the settlement to resolve the disputed issue of fees one way or the other — which would still permit the class to seek fees.
The State also points to a letter of May 14, 1997, shortly after the district court's termination order, in which class counsel told the State that "we will delay our action on plaintiffs' attorneys' fees claim until the court of appeals has acted." This terse document sheds little light on the issues. At most it suggests that the State had reservations about the fees claim. Again, this would show only that the issue of fees was in dispute, not that it was resolved against the class by the agreement.
The district court's conclusion was consistent with the text of the agreement, and its interpretation of the extrinsic evidence was not clearly erroneous. There was no waiver of the right to seek fees.
For the foregoing reasons, we affirm the district court's order awarding the class $106,877.74 in attorneys' fees.
Notes:
Notes
Class representative William Cody also proceeds here individually, and is represented by the same counsel as the class
The Honorable Lawrence L. Piersol, Chief United States District Judge for the District of South Dakota
The claims before the Supreme Court inBuckhannon involved the "prevailing party" provisions of the Fair Housing Amendments Act of 1988 and the Americans with Disabilities Act of 1990. However, Buckhannon's analysis of the meaning of "prevailing party" was general. The Court stated that it was interpreting "a legal term of art," id. at 603,
Enforcement work under subsection (B)(ii) is not governed by subsection (B)(i) (which is connected to (B)(ii) by an "or"), so the PLRA does not require courts to reduce fees for enforcing relief in proportion to the relative success of the claims the plaintiff originally asserted