El-Tabech v. Clarke

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 09-1554
No. 09-2691
___________

Mohamed A. El-Tabech, *
*
Plaintiff - Appellee, *
* Appeals from the United States
v. * District Court for the
* District of Nebraska.
Harold Clarke, et al., *
*
Defendants - Appellants.. *
___________

Submitted: April 13, 2010
Filed: August 13, 2010
___________

Before LOKEN, COLLOTON, and GRUENDER, Circuit Judges.
___________

LOKEN, Circuit Judge.

Mohamed El-Tabech, a Muslim inmate serving consecutive life sentences in
Nebraska’s Tecumseh State Correctional Institution (TSCI), commenced this 42
U.S.C. § 1983 action alleging that prison officials were violating his religious rights
under the First Amendment and the Religious Land Use and Institutionalized Persons
Act of 2000 (RLUIPA), 42 U.S.C. §§ 2000cc et seq. After a bench trial, the district
court issued an order requiring defendants to post a copy of his prayer schedule so that
TSCI guards are aware of it and directing the parties to negotiate procedures to
provide El-Tabech kosher meals. El-Tabech v. Clarke, Mem. & Order dated July 17,
2007 (D. Neb. No. 4:04cv3231). Ten weeks later, granting the parties’ Joint
Stipulation, the court ordered defendants to implement a stipulated “Kosher
Equipment and Meal Preparation Process” to provide El-Tabech “a nutritionally-
sufficient kosher diet, in accordance with Nebraska Department of Corrections
Services policies and procedures,” and to allow “a person with expertise in the area
of kosher diet preparation and service” to verify that “the Kosher Process, once
implemented . . . meet[s] Defendants’ stated commitment to never serve Mr. El-
Tabech non-kosher food.” Order dated Oct. 5, 2007. In May 2008, the court awarded
El-Tabech as prevailing party attorneys’ fees and costs, as authorized by 42 U.S.C.
§ 1988(b). None of these orders was appealed.

In October 2008, El-Tabech moved for an order under Rules 69(a) and 70 of the
Federal Rules of Civil Procedure directing defendants to pay the fee award to El-
Tabech’s attorneys and increasing the post-judgment interest rate payable on that
award. On February 4, 2009, the district court granted the motion. In Case No. 09-
1554, the State appeals that order. In August 2008, El-Tabech moved for an order
holding defendants in contempt for alleged violations of the injunction orders. On
March 4, 2009, the district court granted El-Tabech the relief requested on one claim,
modifying the stipulated injunction to require that El-Tabech be provided only
prepackaged kosher foods. He promptly submitted a supplemental fee request, which
the district court granted on June 10, 2009, awarding $73,360.20 in attorneys’ fees and
$271.20 in costs for post-judgment work. In Case No. 09-2691, the State appealed
both orders. We dismissed the appeal of the contempt order as untimely, leaving only
the appeal of the supplemental fee award. We consolidated the two cases on appeal
and now reverse both orders and remand for further proceedings.

I. Enforcing the Original Fee Award (No. 09-1554)

Though the Eleventh Amendment bars an award of damages against a State in
a § 1983 action, a federal court may award attorneys’ fees and other costs against the
State under § 1988 as part of the prospective injunctive relief authorized in the

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landmark decision Ex parte Young, 209 U.S. 123 (1908). See Hutto v. Finney, 437
U.S. 678, 689-98 (1978). A Nebraska statute first enacted in 1982 expressly provides
that a federal court award of fees and expenses against the State “shall be paid in the
manner provided in the State Miscellaneous Claims Act.” Neb. Rev. Stat. § 25-1806.
The Miscellaneous Claims Act (MCA) provides that a claim must be submitted to the
State Claims Board and, if approved by the Board, a claim for more than $50,000
“shall be reviewed by the Legislature [at its next session] and an appropriation made
therefor if appropriate.” Neb. Rev. Stat. § 81-8,300.

Time sheets submitted in support of El-Tabech’s request for a supplemental fee
award reveal that his attorneys began researching a “legal basis to challenge state
statutory restrictions upon enforcing a federal court judgment” in February 2008. On
May 5, some two months later, the district court awarded El-Tabech $204,986.28 in
attorneys’ fees and costs as the prevailing party. In late October, he filed a motion for
relief under Rules 69(a) and 70 of the Federal Rules of Civil Procedure. In support,
counsel submitted an affidavit averring that, on October 8, he called Assistant
Attorney General Linda Willard and advised that El-Tabech would file a motion to
enforce the attorneys’ fee judgment and seek additional compensation for failure to
pay because counsel “had not received any response to our prior requests for
payment.” After the State Claims Board advised Willard it had not received a claim
requesting payment, she promptly advised counsel that, under Nebraska law, the
judgment could not be paid without approval of a claim by the Claims Board and the
Legislature, and that the Department of Correctional Services legal staff would
promptly endorse a request for payment. The affidavit further averred that counsel’s
law firm operates under a line of credit that exceeds the amount of the May 5
judgment and accrues interest at the rate of five percent per year.

Contrary to counsel’s affidavit, time sheets kept by El-Tabech’s attorneys
include the following entry dated June 13, 2008:

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 Correspondence from Neb. Dept. of Risk Management re: filing of claim
for payment of judgment for attorney’s fees. Research re: effect of filing
of claim for payment of attorney’s fee judgment. Preparation of
memorandum re: same. Preparation of claim for attorney’s fees for State
Claim Board.

An entry dated September 10, 2008, recorded: “Review and revise State Claims
Board claim form for attorney’s fees and costs.” Yet no claim was filed. Instead,
counsel spent 69.4 hours between September 10 and October 8 preparing a motion to
preempt the State’s payment statutes and procedures, an exercise they began in
February 2008. These facts were not disclosed to the district court until the time
sheets were filed in March 2009, some six weeks after the court issued its ruling based
on defendants’ alleged dilatory conduct.

The district court granted this motion in the order being appealed. Its
description of the motion is significant:

Plaintiff seeks an order directing the defendants to immediately issue a
warrant payable to plaintiff’s counsel to satisfy the May 5, 2008,
judgment and also seeks an increase in the amount of post-judgment
interest payable [on that] judgment to a rate deemed appropriate to insure
the defendants’ compliance with the court’s order.

El-Tabech v. Clarke, Mem. & Order dated Feb. 4, 2009, at p.1. Explaining that
“defendants’ invocation of its lengthy claims procedure should not operate to the
financial detriment” of attorneys awarded fees under § 1988, the court ordered:

1. Plaintiff’s motion for relief under Fed. R. Civ. P. 69 or 70
(Filing No. 212) is granted.

2. Judgment is entered for interest in the amount of [$7,857.72]
for the period from May 5, 2008 . . . to the date of this order.

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 3. Interest at the rate of 14% shall accrue on any outstanding
judgment from the date of this order.

Id. at pp. 5-6. Defendants appeal paragraphs 1 and 3 of this order.

A. Paragraph 1. Though the order is not explicit, we infer from the court’s
description of the motion that paragraph 1 ordered state officials “to immediately issue
a warrant payable to plaintiff’s counsel,” contrary to the mandates of Neb. Rev. Stat.
§ 25-1806. The order explained: “to the extent that the Nebraska claims process that
requires legislative approval and appropriation prior to the State’s payment of a
federal court judgment conflicts with the purposes underlying § 1983 (to compensate
victims and deter future deprivations of federal constitutional rights), it is preempted
by federal law.” Id. at p. 3.

The touchstone of preemption analysis is whether Congress reflected in the
federal law a “clear and manifest” intent to displace state law. That intent -

may be explicitly stated in the statute’s language or implicitly contained
in its structure and purpose. In the absence of an express congressional
command, state law is pre-empted if that law actually conflicts with
federal law . . . .

Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992) (quotation and citation
omitted). In Felder v. Casey, 487 U.S. 131, 138 (1988), the Court held that § 1983
preempted a state notice-of-claim statute because it “conflicts in both its purpose and
effects with the remedial objectives of § 1983” and therefore “stan[ds] as an obstacle
to the accomplishment and execution of the full purposes and objectives of Congress.”
(Quotation omitted.) We applied that principle in preempting a state statute in
Hankins v. Finnel, 964 F.2d 853, 861 (8th Cir.), cert. denied, 506 U.S. 1013 (1992),
and the district court applied it in invalidating Neb. Rev. Stat. § 25-1806.

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 The first problem with El-Tabech’s contention, as adopted by the district court,
is that we are dealing with the enforcement of a federal court judgment, and Congress
expressly declared its intent not to preempt state law in approving Rule 69(a)(1):

A money judgment is enforced by a writ of execution, unless the court
directs otherwise. The procedure on execution -- and in proceedings
supplementary to and in aid of judgment or execution -- must accord
with the procedure of the state where the court is located, but a federal
statute governs to the extent it applies.

As Congress surely knew, it has long been the general rule that property of a State is
exempt from execution unless a statute otherwise provides. 33 C.J.S. Executions § 42
(2009); see Virginia v. West Virginia, 241 U.S. 531, 532 (1916). Nebraska follows
that rule. See Sherard v. State, 509 N.W.2d 194, 198 (Neb. 1993); Madison County
v. Sch. Dist. No. 2, 27 N.W.2d 172, 177 (Neb. 1947). When Congress has expressly
declared the extent of preemption intended, principles of implied conflict preemption
may not be applied. Cipollone, 505 U.S. at 517 and 531-32 (Blackmun, J.,
concurring). Thus, Rule 69(a), rather than supporting paragraph 1 of the district
court’s order, is strong evidence the court exceeded its preemption authority.

Even if the conflict preemption principles of Felder apply to the enforcement
of a § 1988 attorneys’ fee judgment, we “must inquire more deeply into the intention
of Congress and the scope of the pertinent state legislation.” Hankins, 964 F.2d at 861
(quotation omitted). Because the purposes and objectives of § 1983 are broad --
“compensation of persons injured by deprivation of federal rights and prevention of
abuses of power by those acting under color of state law” -- its preemptive sweep is
“considerable,” but it is not unlimited. Beeks v. Hundley, 34 F.3d 658, 661 (8th Cir.
1994) (quotation omitted).

Congress enacted § 1988 to encourage enforcement of civil rights laws, like
§ 1983, through lawsuits by private parties. Missouri v. Jenkins, 491 U.S. 274, 283

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n.6 (1989). Jenkins held that the Eleventh Amendment does not bar enhancing a fee
award to compensate for delayed payment. Id. at 281-82. In this case, the fee was
enhanced in paragraphs 2 and 3 of the order, but paragraph 1 went much further,
preempting a state statute prescribing procedures for the expenditure of state funds.
That is a function at the core of Nebraska’s sovereignty. In Hutto, the Court expressly
cautioned that the Eleventh Amendment “may counsel moderation in determining the
size of the award or in giving the State time to adjust its budget before paying the full
amount of the fee.” 437 U.S. at 692 n.18, citing Edelman v. Jordan, 415 U.S. 651, 666
n.11 (1974). Here, the issue is preemption -- whether Congress reflected in § 1988 its
“clear and manifest” intent to entirely preempt statutes such as Neb. Rev. Stat. § 25-
1806. We conclude the answer is no.

El-Tabech argues that the delay in the payment of an attorneys’ fee award
caused by the State’s statutory payment procedures in all cases interferes with the
purposes and objectives of § 1988. The contention proves far too much.
Uncompensated delays in payment can of course discourage willing attorneys from
representing § 1983 plaintiffs. But Jenkins confirmed that courts have ample power
to overcome that obstacle by compensating § 1988 judgment creditors for delays in
payment. The compensatory purposes of § 1983 do not justify preempting a statute
of general applicability within an area of traditional state power when there is no
indication the statute “was intended to frustrate § 1983 inmate plaintiffs, or to reduce
the deterrent effect of § 1983 judgments.” Beeks, 34 F.3d at 662.1

1
If state officials refuse to pay a federal judgment rendered in a § 1983 civil
rights action, the federal court confronts a far more difficult remedial problem. That
was the situation faced in the cases on which El-Tabech primarily relies, Gary W. v.
Louisiana, 622 F.2d 804, 806-07 (5th Cir. 1980), cert. denied, 450 U.S. 994 (1981),
and Gates v. Collier, 616 F.2d 1268, 1270-71 (5th Cir. 1980). Even in that situation,
while an order to pay is clearly appropriate, how to enforce that order if state officials
remain recalcitrant and state law bars execution against state assets raises competing
issues of supremacy and comity that happily are not present in this case. Cf. Spain v.
Mountanos, 690 F.2d 742, 745-47 (9th Cir. 1982).

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 El-Tabech argues that the MCA conflicts with § 1988 because it authorizes state
officials to modify or reject a federal judgment and because the broad release
provision in § 81-8,301 forces successful plaintiffs to release valid claims against the
State to obtain payment of their federal judgment. But these contentions are not ripe
for review. The only issue presented in this case is whether the Nebraska Legislature
violated the Supremacy Clause when it enacted § 25-1806 and the MCA. If the
Claims Board or the Legislature should ever reject a claim submitted to enforce a
§ 1988 fee award, contrary to a federal court judgment, that specific executive or
legislative action would almost surely be conflict preempted. Likewise, serious
Supremacy Clause issues would be raised if a state official ever argued that the
MCA’s claims-release provision imbued the State’s payment of a particular federal
judgment with greater preclusive force than it would be given under federal law. But
the theoretical possibility of future disputes is not grounds for invalidating the statute.
In Hankins, we carefully held that “section 1983 preempts the Missouri Incarceration
Reimbursement Act as it is applied in this case.” 964 F.2d at 861 (emphasis added).

For these reasons, paragraph 1 of the February 4, 2009, order is reversed.

B. Paragraph 3. Turning to paragraph 3 of the February 4, 2009, order,
defendants argue the district court abused its discretion by increasing the post-
judgment interest rate on the May 2008 fee award to a punitive 14% absent clear and
convincing evidence of a failure to comply with the underlying order. “A district
court may take any reasonable action to secure compliance with its orders, and only
when the district court’s response is so inappropriate as to amount to an abuse of
discretion will the Court of Appeals intervene.” Ass’n for Retarded Citizens v. Olson,
713 F.2d 1384, 1396 (8th Cir. 1983). Thus, the district court’s authority to impose
this form of compensatory remedy is clear. However, we find two flaws in the court’s
exercise of its discretion.

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 First, in Olson, we affirmed the district court’s award of 14% prejudgment
interest on an interim attorneys’ fee award the State had neither appealed nor paid.
We concluded that this award, entered in lieu of holding state officials in contempt,
was a reasonable exercise of the court’s discretion “to secure compliance with its
orders.” 713 F.2d at 1396. Here, on the other hand, (i) most of the delay prior to
February 4, 2009, was attributable to El-Tabech’s refusal to file a claim under the
MCA, and (ii) the district court imposed a punitive 14% prospective interest rate to
coerce the State into abandoning a statutory payment procedure that is not preempted
by § 1983 or § 1988. In these circumstances, paragraph 3 cannot be affirmed.

Second, the prejudgment interest upheld in Olson is “considered part of the
compensation due plaintiff” and may be awarded by the trial court after considering
“a number of factors.” Osterneck v. Ernst & Whinney, 489 U.S. 169, 175-76 (1989).
Here, the issue is post-judgment interest. Congress has declared the post-judgment
rate that adequately compensates federal judgment creditors:

Interest shall be allowed on any money judgment in a civil case
recovered in a district court. . . . Such interest shall be calculated from
the date of the entry of the judgment, at a rate equal to the weekly
average 1-year constant maturity Treasury yield, as published by the
Board of Governors of the Federal Reserve System, for the calendar
week preceding the date of the judgment. 28 U.S.C. § 1961(a).2

In enacting this statute, Congress determined that adequate compensation for the delay
in paying a federal judgment is the interest a conservative investor would have earned,
not the interest paid by a judgment creditor who borrowed funds while awaiting
payment. Though we do not preclude the possibility that extraordinary circumstances

2
“The phrase ‘any money judgment’ in section 1961(a) is construed as including
a judgment awarding attorneys’ fees.” Jenkins v. Missouri, 931 F.2d 1273, 1275 (8th
Cir.), cert. denied, 502 U.S. 925 (1991); see Wright, Miller & Cooper, Federal
Practice & Procedure: Jurisd. § 3983, at 455 (3d ed. 2008).

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might justify a court increasing the rate prescribed in § 1961(a) to make its § 1988
award adequately compensatory under Jenkins and Olson, the district court abused its
discretion in this case by departing from the § 1961(a) rate where no such
circumstances were shown.

For these reasons, paragraph 3 of the order was an abuse of the district court’s
remedial discretion. We remand for determination of an appropriate compensatory
post-judgment interest rate, which is presumptively the § 1961(a) rate.

II. The Supplemental Attorneys’ Fee Award (No. 09-2691)

After the district court granted the contempt motion in part, El-Tabech moved
for a supplemental award of $73,360.20 in attorneys’ fees. In support, he submitted
detailed time sheets showing that his attorneys deducted $15,360.60 for time spent on
unsuccessful issues. The district court granted the entire amount requested,
concluding that El-Tabech demonstrated that he only sought compensation for “the
issue on which he was successful -- the kosher diet issue” -- and that the hourly rate
and time spent on enforcing the previous fee award, the contempt motion, and the
present fee application were “reasonable in light of the defendants’ conduct.”
Defendants appeal this award, arguing that El-Tabech did not fully deduct time spent
on unsuccessful or non-compensable issues, that his attorneys spent an unreasonable
amount of time on compensable aspects of the case, and that the requested fee was not
proportional to the relief obtained. We agree.

In § 1983 actions, “the court, in its discretion, may allow the prevailing party,
other than the United States, a reasonable attorney’s fee as part of the costs.” 42
U.S.C. § 1988(b). When plaintiff initially prevails and obtains injunctive relief in
“institutional reform” litigation, some types of post-judgment activities are generally
compensable as “necessary adjuncts to the initial litigation, whereas other types of
activities are more like a new, separate lawsuit and require a fee determination

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independent of the underlying case.” Jenkins v. Missouri, 127 F.3d 709, 716-17 (8th
Cir. 1997). Reasonable fees for defending the injunction from attack are
compensable, but “[a] prevailing party who aggressively seeks a greater victory and
fails is entitled to a proportionally lesser fee award than a prevailing party who merely
defends [his] victory, even if the defense is less than completely successful.” Ass’n
for Retarded Citizens v. Schafer, 83 F.3d 1008, 1012 (8th Cir.), cert. denied, 519 U.S.
993 (1996). Work that is more like a new, separate lawsuit “requires a fresh
determination of entitlement to fees.” Cody v. Hillard, 304 F.3d 767, 773 (8th Cir.
2002). In all events, “hours that are excessive, redundant, or otherwise unnecessary”
must be excluded. Hensley v. Eckerhart, 461 U.S. 424, 434 (1983).

El-Tabech divided his supplemental application into categories of post-
judgment work. He requested and was awarded $15,780.60 for time spent enforcing
the original attorneys’ fee award; $14,837.40 for time spent monitoring defendants’
compliance with the original court order; $32,019.60 for time spent briefing and
arguing the contempt motion; and $10,722.60 for time spent on the fee requests. El-
Tabech “bears the burden of establishing entitlement to an award and documenting the
appropriate hours expended and hourly rates.” Hensley, 461 U.S. at 437.

A. Enforcing the original attorney fee award. As we have explained, the
time sheets belatedly submitted by El-Tabech’s attorneys reveal lack of candor and
excessive time spent in submitting his motion to enforce the original fee award. Even
more to the point, the motion was entirely unsuccessful. Though defendants did not
appeal paragraph 2, the district court will need to reconsider paragraph 2 in
determining on remand what compensatory post-judgment interest rate is appropriate.
Therefore, the award of fees for time spent on the issues resolved in Part I of this
opinion is reversed.

B. Post-Judgment Monitoring. El-Tabech’s attorneys recorded 108.7 hours
monitoring defendants’ compliance with the Kosher Process, requesting $14,837.40

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for that time. We ruled in Jenkins that monitoring compliance with court orders and
enforcing the remedy “are generally compensable as part of the underlying case.” 127
F.3d at 717. However, we noted in Cody, 304 F.3d at 777, that Congress in the Prison
Litigation Reform Act (PLRA) explicitly disallowed an award of fees for post-
judgment monitoring by providing that a fee may only be awarded if “the fee was
directly and reasonably incurred in enforcing the relief ordered for the violation.” 42
U.S.C. § 1997e(d)(1)(B)(ii) (emphasis added).3 As the district court did not apply the
PLRA limitation, this part of the award cannot be affirmed. In addition, El-Tabech’s
attorneys devoted 72 hours to monitoring all aspects of TSCI’s food quality and
service, whereas the injunction only ordered defendants to implement the stipulated
Kosher Process to provide El-Tabech “a nutritionally-sufficient kosher diet.” Thus,
much of the monitoring was work on a new, unsuccessful lawsuit.

C. Motion for contempt. The district court awarded $32,019.60 for work
performed on the motion for contempt. The court partially granted the motion
because defendants “have not shown that they have made all reasonable good-faith
efforts to comply with court’s order” to provide kosher food.

On March 5, 2008, El-Tabech’s attorneys arranged for and accompanied a
rabbi’s tour of TSCI to evaluate the defendants’ compliance. Rabbi Jonathan Gross
reported in a letter to counsel “that the food prepared as prescribed by the protocol and
based on my personal observations is kosher according to the highest standards,” and
that “prison kitchen staff is being needlessly stringent.” This was compensable time
spent in enforcing the injunction. However, Rabbi Gross reported that defendants had

3
The PLRA also provides that no injunction shall be granted “in any civil action
with respect to prison conditions . . . unless the court finds that such relief is narrowly
drawn, extends no further than necessary to correct the violation of the Federal right,
and is the least intrusive means necessary to correct the violation of the Federal right.”
18 U.S.C. § 3626(a)(1); see Castillo v. Cameron County, 238 F.3d 339, 351-55 (5th
Cir. 2001).

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implemented a Kosher Process to provide El-Tabech a nutritionally-sufficient kosher
diet.

On April 15, 2008, El-Tabech discovered feces wrapped in plastic in a vegan
entree prepared and delivered by TSCI staff. He filed an emergency grievance and
advised his attorneys. TSCI suspended service of staff-prepared kosher meals while
the incident was investigated, serving only kosher items that were factory sealed or
still in their “own skin.” On May 13, TSCI modified Food Service Protocol 1.02 to
reduce staff access to kosher meals during preparation and delivery and to provide “a
clear delineation of responsibilities and oversight to prevent a similar incident.” On
May 15, El-Tabech was first served an entree under the modified Protocol. His
August 6, 2008, affidavit submitted in support of the contempt motion relates:

I immediately felt nauseous and nearly vomited. Since May 15, 2008,
I have refused to accept the vegan entrees, and continued refusing any
food handled directly by TSCI staff that is not prepackaged or still in its
skin.

At this point, El-Tabech’s attorneys had all the information needed to obtain the
relief granted by the court’s March 4, 2009, order -- modifying the injunction to
require defendants to provide only prepackaged kosher foods. Yet El-Tabech did not
file the motion for contempt until late August. In the interim, the time sheets record
many hours revising the motion papers. In total, El-Tabech’s attorneys recorded 141.5
hours drafting the brief in support of this motion, 67.7 hours drafting the reply brief,
and 23.8 hours preparing for and attending the motion hearing. Though we review the
amount awarded for compensable post-judgment work under a deferential abuse-of-
discretion standard, see Jenkins, 127 F.3d at 716-19, this seems to us like an
unreasonable and unnecessary amount of time to spend on the successful portion of
the motion and may include hours spent on issues other than whether El-Tabech was
reasonably demanding prepackaged foods. The district court should again review this
portion of the award on remand.

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 In determining whether a fee award is reasonable and necessary, the key
component is the “exclusion of ‘hours that are excessive, redundant, or otherwise
unnecessary.’” Schafer, 83 F.3d at 1012, quoting Hensley, 461 U.S. at 434. The
degree of plaintiff’s success is “the most critical factor” in selecting a reasonable fee
award. Warnock v. Archer, 397 F.3d 1024, 1026 (8th Cir. 2005), quoting Farrar v.
Hobby, 506 U.S. 103, 114-15 (1992). Here, it appears that “the complexity of the
issues [on which El-Tabech was successful] simply did not warrant the requested
amount of ‘lawyering.’” Quigley v. Winter, 598 F.3d 938, 958 (8th Cir. 2010).

D. The fee applications. The district court awarded El-Tabech $10,722.60 for
77.7 hours spent preparing the reply brief in support of the original motion for
attorney’s fees and the motion for supplemental attorneys’ fees. Time spent preparing
fee applications is generally compensable, but here the time was excessive to prepare
an application for the portions of the requests that were properly compensable.

III. Conclusion

When a fee award is not upheld, the appropriate disposition of the appeal is
usually to remand. See Quigley, 598 F.3d at 958. That is appropriate in this case,
particularly because other fee and fee payment issues may not be entirely resolved.
Accordingly, in both cases, we remand to the district court for further proceedings not
inconsistent with this opinion.
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