United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 28, 1998 Decided October 30, 1998
No. 97-7234
Inmates of D.C. Jail,
Appellees
v.
Delbert C. Jackson,
Appellant
Consolidated with
Nos. 97-7235 and 97-7236
Appeals from the United States District Court
for the District of Columbia
(No. 71cv01462)
(No. 75cv01668)
Lutz Alexander Prager, Assistant Deputy Corporation
Counsel, argued the cause for appellant. With him on the
briefs were John M. Ferren, Corporation Counsel, and
Charles L. Reischel, Deputy Corporation Counsel.
Kimberly A. Jackson argued the cause for appellees. With
her on the brief were J. Patrick Hickey and Jonathan Smith.
Before: Edwards, Chief Judge, Wald and Sentelle,
Circuit Judges.
Opinion for the court filed by Circuit Judge Sentelle.
Dissenting opinion filed by Circuit Judge Wald.
Sentelle, Circuit Judge: In this suit brought on behalf of
the inmates of the D.C. jail, the District of Columbia appeals
the district court's award of attorney's fees at market rates
for work performed after the passage of the Prison Litigation
Reform Act ("PLRA"), Title VIII of the Omnibus Consolidat-
ed Rescissions and Appropriations Act of 1996, Pub. L. No.
104-134, 110 Stat. 1321 (1996), codified at 18 U.S.C. s 3626
and 42 U.S.C. s 1997e. We hold that the attorney's fees
limitations in the PLRA apply to all work performed after the
effective date of the Act, and reverse the district court for the
reasons stated below.
I. Background
The Prison Litigation Reform Act was designed, inter alia,
to stop frivolous prisoner lawsuits by placing some of the
financial burden for litigation on parties and increasing finan-
cial and other burdens on prisoners found to have filed
meritless cases. The Act also requires attorneys seeking fee
awards to show that the hours they expend in successful suits
are directly related to the problems they are trying to solve.
Another provision, at issue here, places a statutory cap on the
hourly fees that may be awarded to the attorneys who litigate
prisoner lawsuits, even in cases which ultimately prove to
have merit. Section 803(d) of the PLRA provides in relevant
part:
(d) Attorney's fees
(1) In any action brought by a prisoner who is con-
fined to any jail, prison, or other correctional facility,
in which attorney's fees are authorized under section
1988 [Section 2 of the Revised Statutes of the United
States (42 U.S.C.1988)]....
...
(3) No award of attorney's fees ... shall be based on
an hourly rate greater than 150 percent of the hourly
rate established under section 3006A of Title 18, for
payment of court-appointed counsel.
42 U.S.C. s 1997e(d). This appeal requires us to determine
whether the cap on attorney's fees contained in the PLRA
should be applied to work performed in these consolidated
cases after the Act became effective, when the original fee
award was determined a decade before.
The actions in this consolidated appeal, originally filed in
1971, challenged as unconstitutional the conditions at the D.C.
jail. The plaintiffs in the two cases, Campbell v. McGruder
and Inmates of the D.C. Jail v. Jackson, challenged the same
conditions at the jails and requested the same relief. (The
Campbell class comprised pre-trial detainees, while the In-
mates class comprised convicted prisoners.) In 1975, the
district court found that the conditions did indeed violate the
Constitution because of severe overcrowding, inadequate
health care, unsanitary conditions, and unsafe facilities. The
district court issued an injunction ordering the District of
Columbia to improve the conditions for inmates. Since the
original injunction issued, the district court has found a
pattern of continuing violations and has repeatedly issued
orders attempting to bring conditions at the D.C. jail into
compliance with constitutional minimums. The D.C. jail has
been so recalcitrant in complying with court-ordered reforms
that the judge whose injunction the plaintiffs' attorneys are
monitoring has said that the jail's lack of compliance borders
on bad faith. Appellees' Brief at 5 (citing Transcript, Nov. 1,
1994 Hearing, Inmates of the D.C. Jail v. Jackson (No.
75-1668) at 19-20 (statement of Judge Bryant)). After years
of attempting to get D.C. to voluntarily comply, and appoint-
ing a Special Master to coordinate with D.C. in an attempt to
alleviate conditions, the district court ordered that the jail's
medical and mental health services be placed in receivership
in 1995. Now, in addition to the attorneys for the plaintiffs, a
court-appointed Special Master monitors compliance with ex-
isting orders, and the D.C. jail's medical and mental health
services remain under the control of a receiver. This appeal
involves the award of attorney's fees to plaintiffs' counsel for
hours spent monitoring the D.C. jail, attempting to ensure
that after twenty-seven years, the District of Columbia ends
its continuing violations of the prisoners' civil rights.
II. Attorney's fees
The award of attorney's fees in this case comes against a
complicated statutory backdrop. When the action was origi-
nally filed, the Campbell plaintiffs included a Section 1983
claim, but dropped it in light of District of Columbia v.
Carter, 409 U.S. 418 (1973), which held that Section 1983 did
not apply to the District of Columbia. The Inmates case was
filed after the decision in Carter, and did not contain a
Section 1983 claim. The attorneys litigated the case pro bono
for a decade. It was not until Congress amended Section
1983 in 1979 to cover the District of Columbia (see Pub. L.
No. 96-170, s 1, 93 Stat. 1284 (1979)) that the attorneys in
this case became eligible for fees. Attorney's fees in civil
rights actions had been made available by amendment in
1976. The relevant portion of the Civil Rights Attorney's
Fees Award Act, Pub. L. No. 94-559, 62, 90 Stat. 2641 (1976)
(codified at 42 U.S.C. s 1988(b)), provides that "[i]n any
action or proceeding to enforce a provision of [section 1983]
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." The Supreme Court held that section 1988
applied retroactively to all civil rights cases pending at the
time of its enactment. Hutto v. Finney, 437 U.S. 678, 694
n.23 (1978). In 1985, the plaintiffs in Campbell and Inmates
moved to amend their complaints to include Section 1983
claims, and filed for attorney's fees under Section 1988.
In February, 1988, the district court awarded the plaintiffs
"reasonable" attorney's fees and set the award at market
rates. Multiple payments were made from the District to the
plaintiffs' attorneys under that order. This appeal arises
because the attorneys now seek a fee award for work per-
formed after the passage of the PLRA. In 1997, the district
court awarded attorney's fees for compliance-monitoring work
done in 1996 and 1997 at market rates, pursuant to its 1988
order. The district court considered the existence of the
PLRA in its order, but found it inapplicable. The district
court reasoned that the plaintiffs' attorneys' right to fees
vested in 1988 when its first fee award order was issued. In
making its determination, the district court applied the test
for retroactive application of statutes laid out by the Supreme
Court in Landgraf v. USI Film Products, 511 U.S. 244, 280
(1994):
When a case implicates a federal statute enacted after
the events in suit, the court's first task is to determine
whether Congress has expressly prescribed the statute's
proper reach. If Congress has done so, of course, there
is no need to resort to judicial default rules. When,
however, the statute contains no such express command,
the court must determine whether the new statute would
have a retroactive effect, i.e., 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. If the
statute would operate retroactively, our traditional pre-
sumption teaches that it does not govern absent clear
congressional intent favoring such a result.
The district court determined that "[a]pplying the PLRA to
Plaintiffs' motion for attorneys' fees would contravene the
plain language of the statute as well as its legislative history
and would result in manifest injustice to the plaintiffs."
Campbell v. McGruder, No. 71-1462, slip op. at 2-3 (D.D.C.
filed Oct. 29, 1997) (mem.). The phrase "any action brought
by a prisoner" in Section 802 means any action filed after the
effective date of the Act, the district court reasoned. The
court concluded in particular that applying the PLRA limita-
tions retroactively to these cases, which have been litigated
by the same groups of attorneys since 1971, would be "mani-
festly unjust." Id. at 6. The District appeals the fee award.
III. Retroactivity and the PLRA
The inmates urge us to adopt the district court's reasoning
that the words "any action brought by a prisoner" mean any
action brought after the enactment of the PLRA. That
position was adopted by the Sixth Circuit in Hadix v. John-
son, 143 F.3d 246 (6th Cir. 1998), and was cited with approval
by the district court in its memorandum opinion. They point
to the juxtaposition of Sections 802 and 803 of the PLRA, and
argue that the explicit application of Section 802 to pending
actions shows that when Congress intended a section of the
Act to apply retroactively, it did so expressly. See Jensen v.
Clarke, 94 F.3d 1191, 1203 (8th Cir. 1996) (contrasting con-
gressional treatment of Section 802 and 803 and finding no
intent to create retroactive application of Section 803). They
argue that taken together, the plain language, the negative
inference to be drawn from the absence of retroactivity
provisions, and the legislative history all show that the plain
meaning of the statute is that it should apply only to actions
arising after the passage of the Act.
At the very least, they argue, should the court find that
there is some ambiguity, applying the three-part test of
Landgraf and Lindh v. Murphy, 117 S. Ct. 2059 (1997),
requires the court to find in their favor because to do
otherwise would result in manifest injustice. The inmates
cite Watson v. Secretary of Health, Education and Welfare,
for the proposition that applying a statute that decreases,
rather than increases, attorney's fees to work performed in
pending litigation after the passage of the statute is imper-
missible. 562 F.2d 386 (6th Cir. 1977) (interpreting potentially
retroactive fee-capping regulation in black lung cases).
We are unpersuaded. We do not find in the statute the
plain meaning urged by the prisoners. There is simply noth-
ing in the phrase "any action" that implies, let alone compels,
a holding that the statute applies only to actions brought
after the passage of the Act. Nor does the language compel
resort to legislative history in an attempt to clarify its mean-
ing. We are also not convinced that there is a negative
inference to be drawn from a comparison of Sections 802 and
803 of the PLRA. Section 802 of the PLRA amends an
entirely different statutory section, 18 U.S.C. s 3626. It is
unsurprising that Congress would use differing language to
amend different statutory provisions, and the absence of the
Section 803 language simply will not bear the burden urged
by the inmates. If this case involved a genuine question of
retroactivity, that is, if the District were seeking to apply the
cap to hours worked before the effective date of the statute,
we might find the omission more compelling. But the Dis-
trict advances no such argument, and we join the Eighth
Circuit in holding that retroactivity concerns are not implicat-
ed when the statute is applied to work performed after April
26, 1996, the date of passage of the PLRA. See Williams v.
Brimeyer, 122 F.3d 1093, 1094 (8th Cir. 1997).
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, 94 F.3d at 1203 (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 Land-
graf, 511 U.S. 244; Lindh, 117 S. Ct. 2059. 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 (quoting Bradley v. School Bd. of Richmond, 416 U.S.
696, 711 (1974)).
In Landgraf, the Supreme Court noted that it has adopted
a functional definition of retroactivity. See id. at 268-69 &
n.23. In Miller v. Florida, it stated that "[a] law is retrospec-
tive if it 'changes the legal consequences of acts completed
before its effective date.' " 482 U.S. 423, 430 (1987) (quoting
Weaver v. Graham, 450 U.S. 24, 31 (1981)). 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. In determining whether the
statute has retroactive effect, the court should consider "fair
notice, reasonable reliance, and settled expectations." Id. at
270. 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 could not exist after its passage. Because we hold only
that the fee limitations apply to work performed after the
passage of the Act, there is no need to continue the retroac-
tivity analysis.
We stress now the limits of our holding. We do not
subscribe to the Fourth Circuit's position that the Act applies
to fees awarded after the passage of the Act, regardless of
whether the work was performed before the statute was
enacted. See Alexander S. v. Boyd, 113 F.3d 1373, 1386 (4th
Cir. 1997). We find persuasive those cases that have held
that the PLRA would have retroactive effect if applied to
work performed before the Act was passed. See Glover v.
Johnson, 138 F.3d 229, 250 (6th Cir. 1998) ("[A]pplication of
the attorney-fee provisions to a fee motion that was pending
at the time of the PLRA's passage and that pertained solely
to work performed before the statute's passage would undeni-
ably work an impermissible retroactive effect."); Blissett v.
Casey 147 F.3d 218, 220-21 (2nd Cir. 1998); Cooper v. Casey,
97 F.3d 914, 921 (7th Cir. 1996); Jensen, 94 F.3d at 1203.
Even the District conceded before this court that under
Landgraf, applying the PLRA to work performed before
April 26, 1996 would upset settled expectations and result in
manifest injustice. See Landgraf, 511 U.S. at 277.
IV. Conclusion
We hold that applying the fee-capping provisions of Section
803 of the PLRA to work performed after April 26, 1996, does
not implicate retroactivity concerns. The Act creates present
and future effects on conduct performed after the passage of
the Act. Section 803 caps attorney's fees earned after the
effective date of the Act at 150% of the hourly rate estab-
lished by 18 U.S.C. s 3006A, and that fee cap applies to the
work performed by the attorneys for Inmates and Campbell
which is at issue in this case. We vacate the order of the
district court and remand for proceedings in accordance with
this opinion.
Wald, Circuit Judge, dissenting: I disagree with the panel
that under Landgraf and Lindh because "the work at issue
was not done until after passage" of section 803(d) of the
Prison Litigation Reform Act ("PLRA"), 42 U.S.C.
s 1997e(d), "[t]he attorneys did not possess a right to pay-
ment ... and thus had no settled expectations [of payment],"
Majority Opinion ("Maj. Op.") at 8. In the panel's view, the
mere fact that the services in question had been performed
after the fee cap went into effect meant that the lawyers
would not be retroactively hurt even though these services
were performed on a case initially undertaken long before the
Act. While I agree with the majority that the statutory
language is not "plain" as to whether Congress meant to
apply section 1997e(d) to pending actions and that the legisla-
tive history is ambiguous as well, I do not believe under
Landgraf's mandate the panel is entitled to ignore the pre-
sumption against retroactive application of a law when "mani-
fest injustice" will result and adopt, as it did, an a priori
reasoning that imposing the fee cap on any work performed
after the Act's passage does not constitute a retroactive
application.1
The Supreme Court in Landgraf v. USI Film Products,
511 U.S. 244 (1994), cautioned against drawing cursory con-
clusions about retroactivity based solely on when the conduct
immediately affected by the law in question occurred. As to
conduct preceding the passage of the law, the Court admon-
ished:
__________
1 My own reading of section 1997e(d), like the district court's,
would confine it to cases brought after the passage of the Act. I
note section 1997e(a) (dealing with exhaustion) speaks of an action
which "shall be brought" and although the section most relevant
here, 1997e(d)(1), uses "any action brought," I think it strained to
conclude that (d)(1) is meant to apply to pending cases while (a)
clearly is not. Section 1997e(d)(3) speaks of an award "in an action
described in paragraph (1)," a limiting clause that would seem
unnecessary if any post-Act award in a prisoner case were to be
covered by the cap. In any case, I agree basically with Hadix v.
Johnson, 143 F.3d 246 (6th Cir. 1998), construing this section not to
apply to cases already ongoing in the courts.
A statute does not operate "retrospectively" merely be-
cause it is applied in a case arising from conduct antedat-
ing the statute's enactment ... or upsets expectations
based in prior law. Rather, the court must ask whether
the new provision attaches new legal consequences to
events completed before its enactment. The conclusions
that a particular rule operates "retroactively" comes at
the end of a process of judgment concerning the nature
and extent of the change in the law and the degree of
connection between the operation of the new rule and a
relevant past event.
Id. at 269-70 (citations omitted) (footnotes omitted), quoted in
LaFontant v. Immigration & Naturalization Service, 135
F.3d 158, 161 (D.C. Cir. 1998). This caution surely applies as
well to conduct occurring temporally after the law is in effect
but which is an inextricable part of a course of conduct
initiated prior to the law. Acknowledgedly, whether section
1997e(d) "attaches new legal consequences to events complet-
ed before its enactment" depends in large part on the answer
to the basic question of whether attorney's fee statutes regu-
late conduct that is merely secondary or ancillary to the
parties' conduct, or whether such laws have real impact on
the legal rights the parties. See Landgraf, 511 U.S. at 275 &
n.29. This has been said to present a "close[ ] question." Id.
at 289 (Scalia, J., concurring). But I believe that the fee-
shifting provision under which this case has been litigated, 42
U.S.C. s 1988--which is designed to facilitate the litigation of
worthy civil rights violations--gives rise to a strong argument
that the triggering event for retroactivity purposes is when
the lawyer undertakes to litigate the civil rights action on
behalf of the client. Thus a subsequent radical change in the
law as to the lawyer's eligibility, if successful, to collect fees
computed in a particular manner for his services does indeed
constitute "new legal consequences to events completed be-
fore ... enactment."
An important characteristic of the Court's retroactivity
analysis is that it is capacious and flexible enough to account
for the circumstances of each particular case. See Lindh v.
Murphy, 117 S. Ct. 2059, 2063 (1997) ("In sum, if the applica-
tion of a term would be retroactive as to Lindh, the term will
not be applied, even if, in the absence of a retroactive effect,
we might find the term applicable...."); United States v.
Ortiz, 136 F.3d 161, 166 (D.C. Cir. 1998) (circuits addressing
potential retroactivity of AEDPA's amendments to section
2255 "share in their approaches [ ] the requirement that the
new enactment be retroactive as applied to the particular
claim before the court"). Equity and fairness are also to be
considered in the analysis. The Court in Bradley v. School
Board of Richmond, 416 U.S. 696 (1974), applied a new fee-
shifting provision of the Education Amendments of 1972 to a
pending school desegregation case based largely on these
principles. The district court in Bradley had already exer-
cised its equitable authority to award attorney's fees to the
plaintiffs in that case, and "as [the Court's] opinion in Bradley
made clear, it would be difficult to imagine a stronger equita-
ble case for an attorney's fee award than a lawsuit in which
the plaintiff parents would otherwise have to bear the costs of
desegregating their children's public schools." Landgraf, 511
U.S. at 277.
The plaintiffs make a strong case here that application of
section 1997e(d) to work performed after April 24, 1996, is
impermissibly retroactive. Section 1988 is a keystone in the
enforcement scheme of our civil rights laws. Section 1988
"was no doubt intended to encourage litigation protecting civil
rights." Kay v. Ehrler, 499 U.S. 432, 436 (1991). As stated
in the Senate Report accompanying passage of section 1988,
"All of these civil rights laws depend heavily on private
enforcement, and fee awards have proved an essential remedy
if private citizens are to have a meaningful opportunity to
vindicate the important Congressional policies which these
laws contain." S. Rep. No. 94-1011, at 2 (1976), reprinted in
1976 U.S.C.C.A.N. 5908, 5910. This surely calls for a closer
examination of the effects wrought by section 1997e(d) on the
prisoners' legal rights than the majority has undertaken. See
also Hensley v. Eckerhart, 461 U.S. 424, 444 (1989) (Brennan,
J., concurring in part and dissenting in part) ("In enacting
section 1988, Congress rejected the traditional assumption
that private choices whether to litigate, compromise, or forgo
a potential claim will yield a socially desirable level of en-
forcement as far as the enumerated civil rights statutes are
concerned."); Copeland v. Marshall, 641 F.2d 880, 895 (D.C.
Cir. 1980) (parallel fee provision in Title VII must be inter-
preted broadly because "the prospect of liability for an attor-
ney's fee may help deter discrimination") (footnote omitted);
Ortiz v. Regan, 980 F.2d 138, 140 (2d Cir. 1992) (section 1988
"was designed to allow private individuals a meaningful op-
portunity to vindicate civil rights violations"); Seattle School
Dist. No. 1 v. State of Washington, 633 F.2d 1338, 1348 (9th
Cir. 1980) ("The congressional purpose in providing attorney's
fees in civil rights cases was to eliminate financial barriers to
the vindication of constitutional rights and to stimulate volun-
tary compliance with the law.").
The two prisoners' cases before us now have been in
litigation for a combined total of 50 years. The prisoners'
lawyers became eligible for attorneys' fees when section 1988
was made applicable to the District of Columbia in 1979, and
they have consistently received fee awards at market rates
for work performed from 1983 onward. Much of this work
has grown out of the lawyers' dogged efforts to monitor the
District's compliance with a series of stipulated orders that
the parties undertook beginning in 1984. The Rules of
Professional Conduct, see D.C. Rules of Prof. Conduct
1.16(b), preclude lawyers from withdrawing from a case in
midstream except under extraordinary circumstances. It
follows that once section 1988 was passed, a rational plaintiffs'
lawyer anticipating a long and time-intensive case involving
lengthy monitoring and compliance negotiations would have
had to have expectations that if he prevailed for his clients he
would be paid on the reasonable basis set out in that statute.
Ethical high-grade representation of a class of civil rights
plaintiffs, especially prisoners, does not consist of a series of
discrete legal services that can be stopped and started again
at any time, but rather a continuous responsibility to see the
litigation through to its natural conclusion. In that very real
sense, the PLRA has changed the rules of the game mid-
stream and unsettled settled expectations of both lawyers and
clients. Thus I agree with the learned district judge that in
the absence of a clear congressional intent, the cap should not
be applied to post-PLRA work undertaken to complete a legal
obligation entered into prior to the law. In sum, application
of the PLRA's limitations on attorneys' fees to legal services
performed after the PLRA's enactment on a case undertaken
prior to the Act does attach retroactively "new legal conse-
quences to events completed before its enactment"--both for
the parties and the lawyers. I therefore respectfully dissent.