Cody v. HillardCody v. Hillard
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.
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
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
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, 88 F.Supp.2d 1049 (D.S.D.2000). Shortly thereafter, the class moved for an award of fees for the work its counsel had done since December 1, 1995. Over the State‘s opposition, the district court awarded most of the fees sought. The court held that the initial litigation had established the class‘s status as prevailing parties under
II.
Under
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, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). That case held that a plaintiff must secure a “judicially sanctioned change in the legal relationship of the parties” to qualify as a prevailing party. Id. at 605, 121 S.Ct. 1835.3 Buckhannon affirmed that a plaintiff who obtains either an enforceable judgment on the merits or a court-ordered consent decree has established the required judicially sanctioned change in legal relationship, and so is a prevailing party. Id. at 604, 121 S.Ct. 1835.
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, 121 S.Ct. 1835.
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, 127 F.3d at 718. Second, an earlier established prevailing party status extends to postjudgment work only if it is a “necessary adjunc[t] to the initial litigation.” Id. at 716. Work that is more “like a new, separate lawsuit” requires a fresh determination of entitlement to fees. The test is whether the later issues litigated were “inextricably intertwined with those on which the plaintiff prevailed in the underlying suit.” Id. at 717. Third, plaintiffs cannot over-litigate. Postjudgment litigation, like all work under the fee-shifting statutes, must be reasonable in degree. Hensley v. Eckerhart, 461 U.S. 424, 433-34, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). “[S]ervices that were redundant, inefficient, or simply unnecessary are not compensable.” Jenkins, 127 F.3d at 716.
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, 478 U.S. 546, 549, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986) (describing analysis by phases as “useful in protracted litigation“). In the first phase, the class seeks a small amount of fees for monitoring the State‘s compliance with the consent decree after December 1, 1995. This phase ended when the State filed its motion to dissolve the decree under Rule 60(b) on April 16, 1996. The second phase consists of the class‘s litigation before the district court and this court in opposition to the motion to dissolve. It culminates in our remand order of March 27, 1998, Cody v. Hillard, 139 F.3d 1197 (8th Cir.1998). Finally, the third phase is work done after the remand to negotiate and secure approval of the private settlement agreement. The district court approved the settlement on February 17, 2000, and this phase ends with the filing of the class‘s petition for fees on March 15, 2000.
We are reluctant to consider this argument since it was not clearly articulated until the State‘s reply brief. See Akeyo v. O‘Hanlon, 75 F.3d 370, 374 n. 2 (8th Cir. 1996). Assuming it is proper to address the argument, we reject it. Our own most recent opinion in this case described the order as a “decision to terminate jurisdiction over a consent decree,” and analyzed it accordingly. Cody, 139 F.3d at 1199. Quite apart from our choice of words, it is facially clear from the order that it was a termination order, of prospective effect. It recited that “the consent decree has served its purposes and is no longer needed in order to serve the public interest.” Id. (emphasis added). The order added that the class had asked the court “to continue its jurisdiction,” but that “in the absence of ongoing substantial violations, the Court declines the invitation.” See id. None of this suggests that the district court held the decree to have been void from the start. Rather, the court held only that it need not be extended into the future. Hence the order did not “cas[t] a shadow on past actions” under the decree, Rouse, 129 F.3d at 662, or nullify the class‘s prevailing-party status.
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, 83 F.3d 1008, 1010-11 (8th Cir.1996); see Mills v. Freeman, 118 F.3d 727, 733-34 (11th Cir.1997). The class‘s considerable success in the litigation as a whole supports a fee award in this phase. The parties do not dispute the district court‘s assessment of reasonable fees for the particular steps class counsel took during this time. We thus uphold the award for this phase without further discussion.
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, 127 F.3d at 717-18; Schafer, 83 F.3d at 1011. The fact that plaintiffs did not prevail before the district court in this phase of litigation does not deprive them of fees. When a remedial consent decree is threatened, “plaintiffs’ counsel [are] under clear obligation to make the defensive effort.” Id. (quoting Plyler v. Evatt, 902 F.2d 273, 281 (4th Cir.1990)). We have also held that as long as a plaintiff‘s litigation to protect a remedy does not rise to the level of overkill, “even largely unsuccessful defensive efforts may be compensable.” Schafer, 83 F.3d at 1011-12; see Plyler, 902 F.2d at 280-81 (awarding full compensation for plaintiffs’ largely unsuccessful opposition to attempt to modify consent decree; work was “essential to the preservation of the integrity of the consent decree as a whole“). Here, the class achieved partial success in this phase by winning a remand from this court. The State does not contend that they engaged in excessive litigation, nor would the record support this view. We therefore hold that the district court‘s award of fees for class counsel‘s work before the district court and this court during the second phase was consistent with the “prevailing party” requirement, and a permissible exercise of the court‘s discretion.
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, 88 F.Supp.2d at 1059. In addition to the examples given by the district court, the settlement agreement‘s provisions dealing with fire safety inspections, plumbing and ventilation maintenance, the storage of food and combustible materials, and initial medical screening of prisoners for tuberculosis likewise implement more general commands on these subjects in the consent decree. Similarly, the agreement‘s provision for chemical disposal in the prison wheelchair shop corresponds to the consent decree‘s requirement that adequate ventilation be maintained in the prison shops. We agree with the district court that the issues dealt with by the agreement are “inextricably intertwined” with the issues in the consent decree. Thus, class counsel‘s work on all three phases is compensable under the general fee-shifting framework.
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.
To evaluate this argument we must interpret
Statutes are to be interpreted as a whole, however. United States v. Talley, 16 F.3d 972, 976 (8th Cir.1994). In particular, courts should not interpret one provision “in a manner that renders other sections of the same statute inconsistent, meaningless, or superfluous.” United States v. Fiorillo, 186 F.3d 1136, 1153 (9th Cir.1999) (quotation marks omitted). Here, subsection (A) and subsection (B)(ii) are flatly inconsistent unless (A) permits some fee awards for enforcement work, thus allowing some effect to (B)(ii).
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, 527 U.S. at 347, 119 S.Ct. 1998.
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, 282 F.3d 755, 758 (9th Cir.2002) (holding that prisoner was not eligible for fees under
Awarding fees is thus authorized to the extent that class counsel directly and reasonably incurred them in enforcing the relief ordered for the violations.
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.
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, 729 F.2d 563 (8th Cir. 1984), and Wray v. Clarke, 151 F.3d 807 (8th Cir.1998), in which we held that civil rights plaintiffs had waived fees by entering into settlement agreements lacking a fees provision.
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, 729 F.2d at 565; Wray, 151 F.3d at 809. We construed the agreements as excluding a fee award. Young, 729 F.2d at 566-67; Wray, 151 F.3d at 809. In Young we stated generally that “[i]f a settlement does not resolve all issues in a case, the parties should not stipulate to a dismissal without reserving the unresolved issues or in some appropriate way indicating their intent as to such issues.” Id. at 567 n. 3. However, we emphasized that “[t]he case before us [did] not involve a situation wherein a settlement was finalized by a consent decree.” Id. at 566 n. 1 (citing Maher v. Gagne, 448 U.S. 122, 124, 100 S.Ct. 2570, 65 L.Ed.2d 653 (1980)).
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., 216 F.3d 695, 700 (8th Cir.2000).
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., 306 N.W.2d 871 (S.D.1981) (“Every effort should be made to give effect to every part of the contract....“).
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, 357 N.W.2d 271, 274-75 (S.D. 1984); 2 E. Allan Farnsworth, Farnsworth on Contracts § 7.13, at pp. 307-09 (2d ed.1998). The existence of a course of dealing is an issue of fact reviewed for clear error. Towers Hotel Corp. v. Rimmel, 871 F.2d 766, 770-71 (8th Cir.1989).
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.