Michael T. COLLINS, Appellant, v. MONTGOMERY COUNTY BOARD OF PRISON INSPECTORS; Joseph Walsh, individually; James A. Frey, individually; Edwin Negron, individually; Alfred Ricci, individually; Mark Griffith, individually; Frank Griffith, individually; David Dombroski, individually, Julio M. Algarin, in his official capacity and individually; Delores Martin, individually; Lawrence Roth, in his official capacity; United States of America.
No. 98-1206.
United States Court of Appeals, Third Circuit.
Filed May 13, 1999.
Argued Nov. 17, 1998. Reargued en banc April 23, 1999.
176 F.3d 679
The District Court did not find any ongoing conduct by Jack-Mack that would support contempt liability. Nor would the record have supported such a finding. JackMack is a limited liability company owned by Max Quinteros and his wife. Through this entity, Quinteros bought the restaurant from Miraglia. Until that purchase, as the District Court found, the business was a sole proprietorship owned by Miraglia. See Max‘s Seafood Cafe v. Quinteros, Civ. No. 90-2137(SSB), slip op. at 5 (D.N.J. May 1, 1998) (“[T]he Court acknowledges Miraglia‘s sole ownership....“). The only actions found to be violative of the order, Miraglia‘s statements, were of a discrete, rather than ongoing, nature, and ceased nearly one year before Jack-Mack acquired the business. In arguing that the contempt judgment against Jack-Mack be affirmed on the basis of successorship principles, Lou-Ann seeks to hold Jack-Mack responsible for past violations committed by Miraglia, the former owner, not for the kind of continuing violation at issue in Golden State.
There are substantial questions about the applicability of those two decisions in cases outside of the labor context, and because this rationale for liability was neither raised nor decided in the District Court, we will not undertake to consider those questions here.
We conclude, therefore, that Jack-Mack has shown that the District Court‘s order resulted in a clear error of law and fact and that the court‘s later refusal to reconsider the order was not consistent with the sound exercise of its discretion. Consequently, we conclude that the District Court erred in failing to grant reconsideration upon receiving evidence of Jack-Mack‘s incorporation date.
C. Remaining Issues
In light of our holding, we need not address the laches issue raised by appellants. It follows from our reversal of the decision holding appellants in contempt that the award of attorney‘s fees to Lou-Ann cannot stand.
Quinteros and Jack-Mack have argued on appeal that because they were successful parties with respect to LouAnn‘s print advertising claim, the District Court erred in failing to award counsel fees to them. They will undoubtedly extend that claim to the entire contempt order in light of our decision here. The consent order states, “in the event that any party seeks enforcement of this Order, the successful party or parties shall be awarded counsel fees.” We will remand this issue to the District Court so that it can consider the applicability of that provision and conduct further proceedings pursuant thereto.
IV. CONCLUSION
For the foregoing reasons, the judgment of the District Court finding Quinteros and Jack-Mack in contempt will be reversed and the case remanded for proceedings consistent with this opinion.
Walter S. Jenkins (argued), Sweeney & Sheehan, Philadelphia, PA, for Appellees, Montgomery County Board of Prison Inspectors, Joseph Walsh, James A. Frey, Edwin Negron, Alfred Ricci, Mark Griffith, Frank Griffith, David Dombroski, Julio M. Algarin, Delores Martin, and Lawrence Roth.
Frank W. Hunger, Assistant Attorney General, Michael R. Stiles, U.S. Attorney, Barbara L. Herwig, Edward R. Cohen (argued), Attorneys, Appellate Staff, Civil Division, Washington, D.C., for Appellee United States of America.*
Argued Nov. 17, 1998.
Before: BECKER, Chief Judge, GREENBERG, Circuit Judge, and McLAUGHLIN,1 District Judge.
Reargued en banc April 23, 1999.
Before: BECKER, Chief Judge, and SLOVITER, STAPLETON, MANSMANN, GREENBERG, SCIRICA, NYGAARD, ALITO, ROTH, LEWIS, McKEE, and RENDELL, Circuit Judges.
* Walter S. Jenkins argued before the panel but not the court en banc. David Richman and Edward R. Cohen argued before both the panel and the court en banc.
OPINION OF THE COURT
GREENBERG, Circuit Judge:
I. BACKGROUND
This matter is before this court on an appeal from an order entered February 17, 1998, in the United States District Court for the Eastern District of Pennsylvania. In 1995, appellant Michael Collins brought this action under
On April 26, 1996, approximately three months after Pepper, Hamilton & Scheetz agreed to represent Collins and less than three months after the district court made the appointment, the Prison Litigation Reform Act of 1995 (“PLRA“), Pub.L. No. 104-134, 110 Stat. 1321 (1996), became effective. The PLRA significantly limits the attorney‘s fees that a court may award a prisoner recovering a monetary judgment in a civil rights action by placing a cap both on an attorney‘s maximum hourly rate and on the total amount of attorney‘s fees recoverable from a defendant. Moreover, the PLRA requires that a portion of a monetary judgment recovered by a plaintiff be applied to satisfy attorney‘s fees. See
Collins’ action was tried in December 1996, after the effective date of the PLRA, before a jury that returned a verdict against two of the ten defendants and awarded Collins compensatory damages of
The court in an opinion dated January 9, 1998, held that Collins’ application for attorney‘s fees for services performed after the PLRA became effective on April 26, 1996, was subject to the PLRA‘s attorney‘s fees limitations. The court, however, in a determination not challenged on this appeal, held that Collins was entitled to an award of attorney‘s fees for pre-PLRA legal services without regard for the Act‘s limitations. It accordingly directed Collins to submit a revised fee petition conforming with the PLRA for the time Pepper, Hamilton & Scheetz spent both in and out of court after April 26, 1996. Moreover, the court upheld the constitutionality of the attorney‘s fees provisions of the PLRA.
On January 26, 1998, Collins filed a revised fee petition that sought an award of $7,789.75 without regard for the PLRA limitations for services before April 26, 1996, but which reduced his request for services performed thereafter from $72,333 to $30,000 in compliance with the PLRA. Collins calculated this post-PLRA figure as $30,025.30 in gross fees, based on the applicable hourly rate, reduced by $25.50 in accordance with the PLRA limitations. The defendants raised no issue with respect to mathematical calculations in this revised petition with respect to services either before or after the enactment of the PLRA, and the district court granted this revised fee petition by order entered on February 17, 1998. The court at that time divided the responsibility for the attorney‘s fees subject to the PLRA on the basis of 97.5% or $29,250 to the defendants and 2.5% or $750 to Collins. Collins filed a timely notice of appeal from this fee award on March 13, 1998.3 The defendants have not cross-appealed and consequently they acquiesce in the district court‘s allowance of fees for pre-PLRA services without regard for the Act‘s limitations. The district court had jurisdiction under
II. DISCUSSION
On this appeal, we are asked to answer two questions: (1) whether a court should apply the PLRA‘s attorney‘s fee limitation provisions to prisoner civil rights cases pending at the time of its enactment and, if so, (2) whether the PLRA‘s attorney‘s fee provisions violate the equal protection of the law guarantee inherent in the Fifth Amendment of the United States Constitution.4 Because these issues present questions of law, our review is plenary.
The PLRA‘s attorney‘s fee limitation provisions are found at
(d) Attorney‘s Fees
(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.
(2) Whenever a monetary judgment is awarded in an action described in paragraph (1), a portion of the judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney‘s fees awarded against the defendant. If the award of attorney‘s fees is not greater than 150 percent of the judgment, the excess shall be paid by the defendant.
(3) No award of attorney‘s fees in an action described in paragraph (1) shall be based on an hourly rate greater than 150 percent of the hourly rate established under section 3006A of Title 18[, the Criminal Justice Act,] for payment of court-appointed counsel....
These PLRA attorney‘s fee limitation provisions raise three retroactivity questions here. With respect to consideration of compensation based on the time a plaintiff‘s attorney has expended on the case, the PLRA limits attorney‘s fees to an hourly rate not greater than 150% of the hourly rate for court-appointed counsel established under the Criminal Justice Act in the applicable district. In this case, the hourly rates allowed on the basis of 150% of the Criminal Justice Act rates were $97.50 for court time and $67.50 for time out of court. As we have indicated, however, the court applied the limitations only to services after the effective date of the PLRA, and the defendants do not contend that the limitations should have been applied to earlier services. Collins contends, however, that the hourly rate provisions should not be applied at all in this action as he filed it before the enactment of the PLRA.
Another limitation is predicated on the amount of the recovery and provides that the fees awarded cannot exceed 150% of the judgment. In this case, as the judgment was for $20,000, the district court capped the fee at $30,000. In this regard, we point out that the defendants do not contend that the fees awarded Collins’ attorneys for pre-PLRA services should count against the $30,000 cap and thus the district court applied the cap only against the fees for post-PLRA services. Inasmuch as the fees for post-PLRA services calculated on the basis of the hourly rate limitation were $30,025.30, the capping provision reduced the attorney‘s fees by the nominal amount of $25.30 to $30,000. Collins nevertheless contends that the cap should not be applied in this case in any degree as he filed it before the enactment of the PLRA.
The third provision is a fee limitation only in the sense that it places responsibility for the fees on the plaintiff by requiring that a portion of the judgment (not to
Congress did not clearly define the temporal reach of any of the three limitation provisions so we must consider whether as applied here they have a retroactive effect. See Landgraf v. USI Film Prods., 511 U.S. 244, 280, 114 S.Ct. 1483, 1505, 128 L.Ed.2d 229 (1994). The Court of Appeals for the District of Columbia Circuit in Inmates of D.C. Jail v. Jackson, 158 F.3d 1357 (D.C.Cir.1998), recently addressed this issue in part. The court concluded that it would join the Court of Appeals for the Eighth Circuit in Williams v. Brimeyer, 122 F.3d 1093, 1094 (8th Cir.1997), “in holding that retroactivity concerns are not implicated when the statute is applied to work performed after April 26, 1996, the date of passage of the PLRA.” Inmates of D.C. Jail, 158 F.3d at 1360. The court went on to explain:
When it is applied to work performed after the effective date of the Act, the PLRA raises none of the retroactivity concerns that require the analysis used by the district court because the statute creates present and future effects on present and future conduct, and has no effect on past conduct. Compare [Jensen v. Clarke, 94 F.3d 1191, 1203 (8th Cir.1996)] (holding that the PLRA did not apply to pre-Act work) with Williams, 122 F.3d at 1094 (holding that as applied to work performed after the passage of the Act, there is no retroactivity). The fees at issue were earned after the PLRA passed. The PLRA does not in this case upset vested interests because no right to a fee existed until the work was done.
Because we find no retroactive effect, we need not consider the Supreme Court‘s extensive analysis of when to permit retroactive application. See Landgraf, 511 U.S. 244; [Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)]. As the Supreme Court stated in Landgraf, normally a court is to apply the law in effect at the time it renders its decision. 511 U.S. at 264, 114 S.Ct. 1483 (quoting Bradley v. School Bd. of Richmond, 416 U.S. 696, 711, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974)).
In Landgraf, the Supreme Court noted that it has adopted a functional definition of retroactivity. See id. at 268-69 & n. 23, 114 S.Ct. 1483. In Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987), it stated that [a] law is retrospective if it changes the legal consequences of acts completed before its effective date. To determine if a statute has retroactive effect, the court must decide whether it would impair rights a party possessed when he acted, increase a party‘s liability for past conduct, or impose new duties with respect to transactions already completed. Landgraf, 511 U.S. at 280, 114 S.Ct. 1483, 128 L.Ed.2d 229. In determining whether the statute has retroactive effect, the court should consider fair notice, reasonable reliance, and settled expectations. Id. at 270, 114 S.Ct. 1483, 128 L.Ed.2d 229. In this case, the work at issue was not done until after the passage of the Act. The attorneys did not possess a right to payment until they performed the work for which the fees were awarded, and thus had no settled expectations. Simply put, as applied in this case, the PLRA does not impair rights or upset expectations that did not exist prior to its passage, and
We agree with the foregoing analysis, and thus we follow it.6 While Inmates of D.C. Jail was not concerned with the limitation provision based on the size of the judgment, that provision raises no additional retroactivity problems here as the district court awarded Collins fees for pre-PLRA services on an hourly basis without regard for any of the PLRA‘s limitations. Thus, we hold that the attorney‘s fees limitation provisions of the PLRA predicated on hourly rates and the amount of the judgment simply do not have retroactive effect, at least when, as here, a court applies them solely to limit fees awarded for services performed after the effective date of the Act based on a judgment entered after that date. See also Madrid v. Gomez, 150 F.3d 1030, 1039 (9th Cir.1998).7
We, however, face a question not involved in Inmates of D.C. Jail, namely whether the PLRA provision that requires application of a portion of the judgment to payment of attorney‘s fees has a retroactive effect. See Mathews v. Kidder, Peabody & Co., 161 F.3d 156, 159-60 (3d Cir.1998), cert. denied, 526 U.S. 1067, 119 S.Ct. 1460, 143 L.Ed.2d 546 (1999). The Supreme Court in Landgraf indicated that to determine whether a statute has retroactive effect a court must decide, inter alia, whether “it would impair rights a party possessed when he acted.” Landgraf, 511 U.S. at 280, 114 S.Ct. at 1505.
Here the application of a portion of the judgment to the attorney‘s fees does have a retroactive effect because under
The PLRA does not indicate whether
B. Constitutional Questions
Collins argues that the PLRA‘s attorney‘s fee limitation provisions violate equal protection of the law by withdrawing from prisoners but not other plaintiffs the right under
In this case we are concerned only with the constitutionality of the attorney‘s fee limitation provisions limiting the attorney‘s fees to 150% of the judgment and limiting the hourly rates to 150% of the hourly rates for court-appointed counsel under the Criminal Justice Act in the applicable district. Obviously, we do not face any constitutional question with respect to application of a portion of the judgment to satisfaction of the attorney‘s fees as we have eliminated that application in this case on a nonconstitutional basis.
We have divided equally on the question of whether the limitation of the fees to 150% of the judgment is constitutional and consequently we will affirm the order of the district court to the extent that it upheld that provision. This disposition renders the constitutional challenge to the hourly rate limitation provision moot as the hourly rate limitation standing alone would allow Collins $30,025.30 in fees, a sum exceeding the $30,000 cap predicated on 150% of the judgment. Consequently, an invalidation of the hourly rate limitation could not enhance the fees allowed for no matter what the hourly rate allowed for Collins’ attorneys’ services the fee cannot exceed $30,000 for post-PLRA services. Therefore, we will not decide whether the hourly rate limitation violates a prisoner‘s rights to equal protection of the law.
III. CONCLUSION
For the foregoing reasons we will modify the order of February 17, 1998, to the extent that it allocated $750 of the attorney‘s fee to Collins and will remand the case to the district court to enter an amended order reflecting our determination. Thus, the defendants against whom the monetary damages judgment was entered will be responsible for the entire $30,000 fee. We otherwise will affirm the order of February 17, 1998. The parties will bear their own costs on this appeal.