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PLRA Limits Prisoner's Attorney Fees Incurred Defending

PLRA Limits Prisoner's Attorney Fees Incurred Defending Appeal of Successful § 1983 Suit

by John E. Dannenberg

The Sixth Circuit U.S. Court of Appeals held that after a prisoner wins a 42 U.S.C. § 1983 lawsuit for damages, the Prison Litigation Reform Act's (PLRA) 150%-of-damages fee cap applies not only to his attorney's fees generated during the trial, but also applies to post-trial litigation, including defense of the state's appeal of any aspect of litigation flowing from the prisoner's suit.

In 1994, Jimmie Lee Riley filed a pro per 42 U.S.C. § 1983 civil rights complaint for retaliation and censorship in U.S. District Court (see: Riley v. Kurtz, 893 F.Supp. 709, E.D. Mich. (1995)). On April 16, 1996, the court appointed attorney Daniel Manville [today a quarterly columnist for PLN] to represent Riley pro bono. Manville accepted the appointment with the understanding that he could recover attorney fees under 42 U.S.C. § 1988 if Riley prevailed. But just weeks later, on April 26, 1996, Congress passed the PLRA, which severely restricted such fee recovery. The PLRA appeared so onerous as to fees that in December 1996 Manville moved to withdraw as counsel, which the court denied.

After a jury trial in December 1997, Riley won on all four of his claims and was awarded $25,003 in damages. Manville submitted his fee application and was awarded $32,097.80 for his trial work. Prison guard defendant David Kurtz filed a notice of appeal of the jury verdict on January 5, 1998. Significantly, he did not appeal the attorney fee award.

On appeal (194 F.3d 1313), the Sixth Circuit overturned the verdict on one of the four claims and remanded for either a remittitur or a new trial on punitive damages. Riley chose the remittitur, and the trial court entered an amended judgment of $1,003 on July 13, 2000. Thereafter, Manville was permitted to withdraw and filed his bill for appellate fees and costs of $25,754.54. Only then did Kurtz object to both the trial and appellate attorney fee claims as being beyond the cap permitted under the PLRA.
Kurtz complained that the trial fee question didn't ripen until after the judgment had been amended (and sharply reduced). Manville countered that he had been appointed before the PLRA was enacted, and had been denied his motion to withdraw. The district court determined that as to trial fee objections, Kurtz was two years too late (F.R.Civ.P. 41(a)(1)(A)) and the court had no jurisdiction to revisit the fee claim. Additionally, Manville was awarded appellate fees and costs when the trial court agreed with him that because the appeal was brought by the state, not by the prisoner, it was not an action brought by a prisoner" subject to the PLRA at all.
The Sixth Circuit reviewed both claims de novo. Regarding trial fees, the court agreed that although a 150% fee cap of the $1,003 amended award would only permit recovery of $1,504.50 under the PLRA, the trial fees of $32,097.80 now arguably excessive must stand because the state's appeal was untimely. The appellate fee resolution was another matter, however. The district court below had distinguished a trial (where the plaintiff carries the burden to prove" a violation of his constitutional rights) from an appeal of such a successful verdict, since on appeal the standard of review based on a finding by the trier of fact is higher." That court further observed that if Congress had intended for appellate fees to be capped, it could have expressly said so. Defendant Kurtz argued that the failure of the PLRA to mention appellate fees meant that no fees for appellate work could ever be awarded. Still, Kurtz contended that in any event, i.e., for trial, post trial or appellate work, such fees should be capped.

In strictly construing the statutory language, the Sixth Circuit held that because an action" is any judicial proceeding, if conducted to a determination, that will result in a judgment or decree," no action" is final until its appeals process has ended. Therefore, an appeal filed by a defendant is part of the original action.

Manville then argued that because his client was the prevailing party" even after remand he was entitled to all fees. The court reviewed Congress' intent in enacting the PLRA, and found that prevailing party" status, as to fees, attached to that proportion of the plaintiff's efforts that was successful. The court went on to agree with the Ninth Circuit (Webb v. Ada County, 285 F.3d 829 (9th 2002)) that compensation for successful post judgment work was proper. In sum, the Sixth Circuit concluded that because the underlying fee statute (§ 1988) did permit appellate fees, and the later PLRA did not expressly exclude them, that harmonizing both statutes implied that appellate fees are compensable under the PLRA. We hold that a prisoner who prevails on appeal is entitled to attorney's fees under the PLRA because the hours were part of proving or making certain an actual violation of the prisoner's rights.
Lastly, the court rejected Manville's equal protection argument for full appellate fees in a prisoner action (versus a non-prisoner action) because Congress had a legitimate purpose in dissuading frivolous prisoner litigation by disincentifying prisoners' attorneys. Accordingly, the Sixth Circuit reversed the district court and limited appellate fees to 150% of the damage award, or $1,504.50. But since the court had allowed the otherwise excessive trial fee award of $32,097.80, it held that that more than covered what Manville was legally entitled to, and abated any further payment towards his appellate fees and costs.

The Sixth Circuit recognized the obvious chilling effect its ruling would have on attorney decisions whether or not to take prisoners' cases, but was compelled to so rule, consistent with Congress' intent to dissuade non-meritorious claims by prisoners who had nothing better to do than file frivolous lawsuits." However, the sad truth is that PLRA attorney fee caps, because they do not apply to indigent pro per litigants, literally encourage morenot fewerpoorly argued prisoner civil rights claims. Moreover, only prisoners who file and win cases are entitled to attorney fees, thus it has no effect on meritless litigation. This anomalous result comes from discouraging counsel from taking such cases unless the damage award can be so predictably large as to provide for adequate feesleaving unconstitutionally abused prisoners with no recourse but to flood the courts with their own best efforts. Predictably, prison officials sensing the growing disadvantage of prisoners in battling state lawyers with deep pockets, will only be thereby encouraged to fill the vacuum with more abuses. See: Riley v. Kurtz, 361 F.3 906 (6th Cir. 2004).

PLN readers should note that the 150% fee cap applied here because the sole remedy sought was damages. If the claims could have been framed to also include injunctive relief, the resultant hybrid case" would not have been limited in fees and costs incurred proving the violation of a constitutional right. At worst, a 150% fee cap could have been applied solely to those hours apportioned to proving the damages. See, e.g., Dannenberg v. Valadez, 338 F.3d 1070 (9th Cir. 2003); PLN, Mar. 2003, p.20; PLN, July 2004, p.20. The better strategy to preserve fees is to design" each complaint with claims of both injunctive relief and damages.

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Related legal case

Riley v. Kurtz

[46] In response, Mr. Manville argues that the PLRA does not limit his appellate fee request because the PLRA does not apply to appeals filed by the defendant. He submits that an appeal filed by a defendant is not an "action brought by a prisoner," that the limitations on attorney's fees do not apply in this circumstance, and that he is entitled to the full amount of his requested appellate fees.

[47] Since both parties insist that the statutory language supports their respective positions, the obvious place to begin our analysis is the language of the statute itself. Walker v. Bain, 257 F.3d 660, 666 (6th Cir. 2001), cert. denied, 535 U.S. 1095 (2002). The particular statutory language at issue as well as the statute's design as a whole must be considered. Id. at 666-67. Statutes are to be read with "an eye to their straightforward and commonsense meanings." Id. at 666 (quoting Henry Ford Health Sys. v. Shalala, 233 F.3d 907, 910 (6th Cir. 2000)). "Every word in the statute is presumed to have meaning, and we must give effect to all the words to avoid an interpretation which would render words superfluous or redundant." Id. at 667. We may not rely on the literal language of the statute if "absurd results or an interpretation which is inconsistent with the intent of Congress" would be the outcome. Id.

[48] We start with Mr. Manville's argument because he focuses on the opening phrase of the statute: "In any action brought by a prisoner . . . ." There is no dispute that this litigation began with a case filed by Jimmy Lee Riley, a prisoner. The issue, then, is whether the appeal filed by the defendant is part of the original action, or if, as argued by Mr. Manville, it is a completely separate action. The term "action" is not defined in the statute, but Black's Law Dictionary defines it as "any judicial proceeding, which, if conducted to a determination, will result in a judgment or decree." Black's Law Dictionary 29 (7th ed. 1999). There appears to be no reason why an appeal brought by the losing party should be considered anything other than a continuation of the original action. There is no final judgment or decree until the appeals process has ended. Therefore, we reject Mr. Manville's first argument and find that an appeal filed by the defendant is part of the original action.

[49] Moving on to the next part of the statute, we examine the issue of whether attorney's fees are authorized under § 1988. As stated above, parties qualify for attorney's fees under §1988 of title 42, United States Code, if they are prevailing parties. "[P]laintiffs may be considered prevailing parties' for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit." Farrar v. Hobby, 506 U.S. 103, 109 (1992) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). Although the plaintiff's award of damages was limited by this court, he succeeded on three of his four claims. The fact that his success was nominal on these claims does not change his prevailing party status. Id. at 114.

[50] The defendant contends, however, that it was the intent of Congress to limit the definition of prevailing party for attorney's fees purposes. In a February 6, 1995, report issued by the House Committee on the Judiciary, the following statements were made concerning the attorney's fees section of the Act:

[51] This subsection permits prisoners challenging prison conditions under 42 U.S.C. § 1983 to receive attorney fees but reasonably limits the circumstances under which fees may be granted as well as the amount of the fees.

[52] This subsection limits awards of attorney fees in two ways. First, it narrows the judicially-created view of a "prevailing party" so that a prisoner's attorney will be reimbursed only for those fees reasonably and directly incurred in proving an actual violation of a federal right. Narrowing the definition of "prevailing party" will eliminate both attorney fees that penalize voluntary improvements in prison conditions and attorney fees incurred in litigating unsuccessful claims, regardless of whether they are related to meritorious claims. While this provision eliminates the financial incentive for prisoners to include numerous non-meritorious claims in sweeping institutional litigation, it retains the financial incentive to bring lawsuits properly focused on prison conditions that actually violate federal law.

[53] Second, this provision has the effect of reducing attorney fee awards by eliminating fees for litigation other than that necessary to prove a violation of a federal right. This eliminates the financial incentive for attorneys to litigate ancillary matters, such as attorney fee petitions, and to seek extensive hearings on remedial schemes.

[54] Finally, this provision establishes a proportionality requirement for attorney fee awards. Under current law, the courts retain the discretion to award attorney fees that greatly exceed the extent of the relief obtained by the plaintiff prisoners. This proportionality requirement will discourage burdensome litigation of insubstantial claims where the prisoner can establish a technical violation of a federal right but he suffered no real harm from the violation. The proportionality requirement appropriately reminds courts that the size of the attorney fee award must not unreasonably exceed the damages awarded for the proven violation.

[55] H.R. Rep. No. 104-21, at 28 (1995), reprinted in 1 Bernard D. Reams, Jr. & William H. Manz, A Legislative History of the Prison Litigation Reform Act of 1996, Pub. L. No. 104-134 Stat. 1321 (1997).

[56] Thus, it appears that the defendant is correct in his assertion that with this legislation Congress intended to limit the definition of prevailing party. A prisoner may only qualify for attorney's fees under the PLRA if the fees were "directly and reasonably incurred in proving an actual violation of the plaintiff's rights" and if the fee is proportional to the amount of damages awarded for the violation. 42 U.S.C. §1997e(d)(1)(A) and (B).

[57] The defendant's position is that defending a judgment on appeal is not directly proving a violation, so the plaintiff is not entitled to any fees for appellate work. Whether the defense of a favorable judgment is part of directly proving an actual violation of the prisoner's rights is an issue of first impression in this circuit.*fn3 Nonetheless, a survey of the case law surrounding the award of attorney's fees under § 1988 for appellate work is instructive.

[58] Shortly after the enactment of § 1988, the courts interpreted its provisions as including awards for fees earned for the successful defense of a judgment on appeal. See, e.g., Hutto v. Finney, 437 U.S. 678, 693-98 (1979) (affirming award of appellate fees to prevailing party as part of the costs); Weisenberger v. Huecker, 593 F.2d 49, 54 (6th Cir. 1979) (stating that fees for defending a judgment supported by Congressional purpose of the Act); see also Adcock-Ladd v. Sec'y of the Treasury, 227 F.3d 343, 351 (6th Cir. 2000) (awarding reasonable appellate fees to prevailing party under Title VII). There is no language in the PLRA that contradicts the traditional view that reasonable appellate fees may be awarded to prevailing parties.

[59] We are to presume that when Congress passes legislation, it is fully aware of the existing law. See Int'l Union, United Auto., Aerospace & Agric. Implement Workers of Am., Local 737 v. Auto Glass Employees Fed. Credit Union, 72 F.3d 1243, 1248 (6th Cir. 1996) ("It is a settled principle of statutory construction that when Congress drafts a statute, courts presume that it does so with full knowledge of the existing law."). Thus, the presumption is that Congress was aware when passing the PLRA that, under § 1988, fees are awarded to prevailing parties for work done by attorneys at trial, post-trial, and on appeal.

[60] These attorney's fee awards, however, are limited by the results obtained by the plaintiff. The Supreme Court has held that plaintiffs should receive attorney's fees for work "expended in pursuit of the ultimate result achieved" and not for work on claims unrelated to successful claims. See Hensley v. Eckerhart, 461 U.S. 424, 435 (1983) (citation omitted). In this circuit, work on claims unrelated to the claims upon which the plaintiff prevailed should not be compensated. See Kelley v. Metro. County Bd. of Educ., 773 F.2d 677, 684-85 (6th Cir. 1985) (denying a request for attorney's fees for work on an unrelated matter); see also Jenkins v. Missouri, 127 F.3d 709, 717 (8th Cir. 1997) (en banc) (stating the question as whether the issues in the post-judgment litigation are inextricably intertwined with those upon which the plaintiff prevailed in the underlying suit).

[61] However, an appeal by a defendant challenging a prisoner's success at trial is litigation related to the underlying suit, and attorney's fees would be allowed under § 1988 and Hensley. To this court's mind, the "related claim" limitation set out in Hensley has been incorporated into the fee limitation section of the PLRA. Although stated differently, this limitation on attorney's fees is like the limitation in the PLRA -- attorney's fees are only available if "the fee was directly and reasonably incurred in proving an actual violation of the plaintiff's rights . . . ." 42 U.S.C. §1997e(d)(1)(A).

[62] The only similar case that has come to our attention is a district court decision from the Eastern District of Michigan. Sallier v. Scott, 151 F. Supp. 2d 836 (E.D. Mich. 2001). In Sallier, the issue was whether the post-judgment work done by the prisoner's attorney included "proving" a violation. Id. at 838. Based on the definition of "prove" in Black's Law Dictionary (to establish or make certain), the district court found that "hours spent defending the jury award, against the defendants' motion for judgment as a matter of law, may also be considered hours spent to make certain' the verdict." Id. at 839.

[63] We reject the defendant's argument that attorney's fees for defending a judgment on appeal are not available under the PLRA. We hold that a prisoner who prevails on appeal is entitled to attorney's fees under the PLRA because the hours were part of proving or making certain an actual violation of the prisoner's rights. After all, if the prisoner's favorable verdict is being challenged on appeal, he is having to prove or establish his violation again, this time to a higher court.

[64] 2. Violation of the Equal Protection Clause

[65] Next, Mr. Manville contends that if the PLRA is applied to his request for appellate fees, then the Equal Protection Clause of the Fifth Amendment is violated. He concedes that he must show that an application of the PLRA's fee limitations to appellate fees is not "rationally related to any conceivable legitimate legislative purpose." See Hadix v. Johnson, 230 F.3d 840, 843 (6th Cir. 2000).

[66] Under this standard the statute will be afforded a strong presumption of validity and must be upheld as long as "there is a rational relationship between the disparity of treatment and some legitimate government purpose." The government has no obligation to produce evidence to support the rationality of its statutory classifications and may rely entirely on rational speculation unsupported by any evidence or empirical data. The legislature is not even required to articulate any purpose or rationale in support of its legislation. Consequently, plaintiffs bear the heavy burden of "negativ[ing] every conceivable basis which might support [the legislation], . . . whether or not the basis has a foundation in the record."

[67] Id. (citations omitted).

[68] One of Congress' purposes in passing the PLRA was to reduce the large number of frivolous prisoner lawsuits being filed in federal courts. See id. at 844 (citing to 141 Cong. Rec. S7498-01 (daily ed. May 25, 1995) (statement of Sen. Dole)). The fee cap provisions are directly related to this purpose. Mr. Manville argues, however, that once a prisoner has prevailed at the trial level, the claims can no longer be considered frivolous. Applying the fee caps to his appellate work under these circumstances, he contends, would be an equal protection violation. In response, the defendant argues that our decisions in Walker v. Bain, 257 F.3d 660 (6th Cir. 2001), and Hadix v. Johnson, 230 F.3d 840 (6th Cir. 2000), are dispositive of this issue. We agree with the defendant.

[69] We found in Walker and Hadix that it is rational to speculate that narrowing the definition of a prevailing party and building in a proportionality requirement (150% of the monetary judgment) could reduce the incentive of prisoners and their attorneys to file frivolous claims. As we discussed in Hadix, the fee cap could "counter-balance" a prisoner's numerous incentives to litigate and place prisoners and non-prisoners in a similar decision-making position. Hadix, 230 F.3d at 845. Just as a non-prisoner civil rights litigant should consider all the costs of bringing the action, including appellate costs, so should a prisoner litigant. Furthermore, as we discussed in both Walker and Hadix, the fee cap provisions are rationally related to protecting the federal and state treasuries. Walker, 257 F.3d at 669; Hadix, 230 F.3d at 845.

[70] As we noted in Walker, "the twin goals of decreasing marginal lawsuits and protecting the public fisc are legitimate government interests, and . . . decreasing an attorney fee award in the context of prisoner civil rights litigation serves both of these interests." Walker, 257 F.3d at 669 (citing Hadix, 230 F.3d at 845). These goals apply equally to trial and appellate work. Thus, Mr. Manville has failed to negate every conceivable basis which might support the legislation, and his constitutional argument fails.

[71] Finally, Mr. Manville argues that it would be unfair to deny him his full attorney's fees for his appellate work on behalf of the prisoner. He asserts that if the fee limitation provision applies to defending a judgment, a losing defendant prison official would have little incentive to accept an unfavorable judgment and considerable incentive to cause the attorney to generate billable hours for which he or she might not be compensated. Having to defend a successful judgment below without additional compensation, however, is no different a situation than is faced by every plaintiff's lawyer working on a fixed contingency fee. The possibility of having to defend a favorable judgment on appeal is just another factor a prisoner's lawyer has to take into account in deciding whether to take the prisoner's case in the first place. While the court appreciates the dilemma Mr. Manville found himself in when he was denied permission to withdraw, we conclude that the PLRA applies to all the attorney's fees generated by a prevailing prisoner -- trial, post-trial, and on appeal.

[72] Upon accepting his remittitur, the plaintiff's monetary judgment was $1,003. Applying the 150 percent cap to this amount, the defendant is liable for attorney's fees in the amount of $1,504.50. However, under the unique facts of this case, Mr. Manville will receive $32,097.80 in attorney's fees for his trial work on this case, an amount well in excess of the 150 percent allowed by the PLRA. We conclude that the $1,504.50 allowed under the PLRA is included in the award of trial fees, leaving no room for any further award for Mr. Manville's appellate work.


[74] For these reasons, we AFFIRM the judgment of the district court awarding Mr. Manville his trial fees and REVERSE the judgment of the district court as to Mr. Manville's appellate fees.

Opinion Footnotes

[75] *fn1 The Honorable Leon Jordan, Senior United States District Judge for the Eastern District of Tennessee, sitting by designation.

[76] *fn2 Since any recovery of attorney's fees will go directly to Mr.Manville, we will refer to the fee application arguments as Mr.Manville's.

[77] *fn3 The court notes that the Ninth Circuit has considered this issue when interpreting the enforcement part of the PLRA's fee limitations. Webb v. Ada County, 285 F.3d 829, 834-35 (9th Cir. 2002). In Webb, the issue was whether the attorneys' post-judgment work related to enforcing a consent decree was work proving an actual violation. Id. The Ninth Circuit held that § 1997e(d)(1)(b)(ii) only requires that fees be directly and reasonably incurred in enforcing the relief ordered for the violation, and allowed compensation for post-judgment work. Id.