Alexander S. v. Boyd

Filed: July 3, 1997

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Nos. 96-1950(L)
(CA-90-3062-3-17)

Alexander S., et al,

Plaintiffs - Appellees,

versus

Flora Brooks Boyd, etc.,

Defendant - Appellant.

O R D E R

The Court amends its opinion filed May 28, 1997, as follows:

On page 36, first full paragraph, line 3; and page 40, second
full paragraph, line 4 -- the reference to part II.B.2. is cor-

rected to read "III.B.2."

For the Court - By Direction

/s/ Patricia S. Connor

Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ALEXANDER S.; ALFRED S.; BENNY
B.; CHRISTOPHER M.; LAFAYETTE M.;
RICKY S., by and through their
Guardian ad Litem; LESLY A.
BOWERS, Guardian ad Litem,
Plaintiffs-Appellees,

and

INEZ MOORE TENENBAUM,
individually and as a representative
No. 96-1950
of a class of juveniles,
Plaintiff,

v.

FLORA BROOKS BOYD, individually
and in her official capacity as
Director of the Department of
Juvenile Justice,
Defendant-Appellant,

and
RICHARD E. MCLAWHORN,
individually and in his official
capacity as former Commissioner of
the Department of Juvenile Justice
for the State of South Carolina;
JOHN F. HENRY; FRANK MAUDLIN;
KATHLEEN P. JENNINGS; JOSEPH W.
HUDGENS; KAROLE JENSEN; J. P.
NEAL, individually and in their
official capacities as former Board
Members for the South Carolina
Department of Juvenile Justice;
SOUTH CAROLINA DEPARTMENT OF
YOUTH SERVICES,
Defendants,

MICHAEL W. MOORE, Director of the
South Carolina Department of
Corrections,
Party in Interest,

v.

RICHARD A. HARPOOTLIAN, in his
official capacity as the Solicitor for
the Fifth Judicial Circuit,
Amicus Curiae-Movant.

2
THOMAS DAVIS,
Special Master,

ALEXANDER S.; ALFRED S.; BENNY
B.; CHRISTOPHER M.; LAFAYETTE M.;
RICKY S., by and through their
Guardian ad Litem; LESLY A.
BOWERS, Guardian ad Litem,
Plaintiffs-Appellees,

and

INEZ MOORE TENENBAUM,
individually and as a representative
No. 96-2589
of a class of juveniles,
Plaintiff,

v.

FLORA BROOKS BOYD,
Defendant-Appellant,

RICHARD A. HARPOOTLIAN, in his
official capacity as the Solicitor for
the Fifth Judicial Circuit,
Movant,

and

3
RICHARD E. MCLAWHORN,
individually and in his official
capacity as former Commissioner of
the Department of Juvenile Justice
for the State of South Carolina;
JOHN F. HENRY; FRANK MAUDLIN;
KATHLEEN P. JENNINGS; JOSEPH W.
HUDGENS; KAROLE JENSEN; J. P.
NEAL, individually and in their
official capacities as former Board
Members for the South Carolina
Department of Juvenile Justice;
SOUTH CAROLINA DEPARTMENT OF
YOUTH SERVICES,
Defendants,

MICHAEL W. MOORE, Director of the
South Carolina Department of
Corrections,
Party in Interest.

Appeals from the United States District Court
for the District of South Carolina, at Columbia.
Joseph F. Anderson, Jr., District Judge.
(CA-90-3062-3-17)

Argued: December 5, 1996

Decided: May 28, 1997

Before MURNAGHAN, WILLIAMS, and MOTZ Circuit Judges.

_________________________________________________________________

Affirmed in part, reversed in part, and remanded by published opin-
ion. Judge Williams wrote the opinion. Judge Motz wrote a separate
opinion in which she concurred in Parts I., II., III.A. and C., IV., and
in the judgment. Judge Murnaghan wrote a dissenting opinion.

4
COUNSEL

ARGUED: Edward Mobley Woodward, Jr., WOODWARD, COTH-
RAN & HERNDON, Columbia, South Carolina, for Appellant. W.
Gaston Fairey, FAIREY, PARISE & MILLS, P.A., Columbia, South
Carolina, for Appellees. ON BRIEF: Carolyn C. Matthews, WOOD-
WARD, COTHRAN & HERNDON, Columbia, South Carolina, for
Appellant. Rochelle Romosca McKim, FAIREY, PARISE & MILLS,
P.A., Columbia, South Carolina; Nancy C. McCormick, PROTEC-
TION AND ADVOCACY FOR PEOPLE WITH DISABILITIES,
INC., Columbia, South Carolina; Lesly A. Bowers, Columbia, South
Carolina, for Appellees.

_________________________________________________________________

OPINION

WILLIAMS, Circuit Judge:

In this appeal we must decide whether the recently enacted limita-
tions on attorney's fee awards set forth in § 803(d) of the Prison Liti-
gation Reform Act of 1995 (PLRA), Pub. L. No. 104-134, 110 Stat.
1321 (1996) (codified at 42 U.S.C.A. § 1997e (West Supp. 1997)),
apply to attorney's fees awarded to Plaintiffs, a group of incarcerated
juveniles who have successfully challenged the constitutionality of
juvenile prison conditions in the state of South Carolina. Section
803(d) provides that no attorney's fees shall be awarded to a "prisoner
who is confined to any jail, prison, or other correctional facility" in
an action seeking redress for unconstitutional prison conditions
unless:

(A) the fee was directly and reasonably incurred in
proving an actual violation of the plaintiff's right protected
by a statute pursuant to which a fee may be awarded under
section 1988 of this title; 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.

5
§ 803(d)(1) (codified at 42 U.S.C.A. § 1997e(d)(1)). In addition, any
award made pursuant to § 803(d) is limited to an hourly rate no
greater than 150 percent of the hourly rate established for payment of
court-appointed counsel.1 See § 803(d) (codified at 42 U.S.C.A.
§ 1997e(d)(3)).

In successive orders, which were consolidated for this appeal,2 the
district court held that the PLRA, enacted on April 26, 1996, did not
apply to fee awards for work performed, but not compensated, prior
to its enactment. As to fees for work performed subsequent to the
PLRA's enactment, the district court held that the PLRA did not limit
the fees generated in proving unconstitutional conditions at juvenile
detention facilities, as opposed to adult facilities, because juvenile
facilities were not covered by § 803(d) of the PLRA. For the reasons
set forth herein, we disagree and hold that the attorney's fees limita-
tions set forth in § 803(d) of the PLRA apply to juveniles confined to
juvenile detention facilities. Moreover, the provisions apply to all
awards of attorney's fee made after April 26, 1996, regardless of
when the work was performed, if the plaintiff meets the new stan-
dards imposed by the PLRA for determining the appropriateness of
an award of attorney's fees in a prison conditions lawsuit. Accord-
ingly, the PLRA limits the fees available to Plaintiffs for proving
unconstitutional conditions of confinement in juvenile facilities and
_________________________________________________________________

1 Plaintiffs do not dispute the State's computation that the maximum
rate is $112.50 per hour under 42 U.S.C.A. § 1997e(d)(3) (West Supp.
1997). However, the State does not concede that Plaintiffs' counsel's
hourly rate should automatically be set at the maximum rate for all attor-
neys involved. The district court, finding that the attorney's fees limita-
tions of the PLRA were inapplicable to this case, awarded Plaintiffs' lead
counsel $225.00 per hour and associate counsel $100.00 per hour. Para-
legal services were compensated at an hourly rate of $65.00.

2 We consolidated the State's appeal of the February 16, 1996, May 29,
1996, and August 30, 1996 orders (No. 96-1950) with its later appeal of
the October 2, 1996 order (No. 96-2589). The February order does not
award fees. The State's appeal of that order is limited to the district
court's conclusion that Plaintiffs achieved "prevailing party" status and
therefore were eligible for fees related to a December 1995 hearing. The
State challenges the amount of fees awarded in the May, August, and
October orders for work related to the December 1995 hearing and sub-
sequent monitoring services.

6
for monitoring services ordered by the district court. Because the
awards entered by the district court were determined under the pre-
PLRA standards, we reverse and remand to the district court for a
redetermination under the new standards.

I.

This appeal arises out of ongoing litigation between a group of
incarcerated juveniles confined to four South Carolina juvenile deten-
tion facilities and the South Carolina Department of Juvenile Justice
(the State). First, we review the procedural background of this case.

A.

In 1990, Plaintiffs filed the underlying class action pursuant to 42
U.S.C.A. § 1983 (West Supp. 1997) and three interrelated statutes --
the Individuals with Disabilities Education Act, see 20 U.S.C.A.
§§ 1400-1485 (West 1990 & Supp. 1997); the Rehabilitation Act of
1973, see 29 U.S.C.A. §§ 701-96 (West 1985 & Supp. 1997); and the
Americans with Disabilities Act, see 42 U.S.C.A. §§ 12101-12213
(West 1995 & Supp. 1997) -- challenging the conditions of confine-
ment of juveniles housed in the Department of Juvenile Justice facili-
ties operated by the State. Plaintiffs alleged that the State violated a
number of their constitutional and federal statutory rights. After
exhaustive discovery and a three-month bench trial, the district court
concluded that certain aspects of confinement violated Plaintiffs'
rights under the Due Process Clause of the Fourteenth Amendment.3
Plaintiffs, therefore, prevailed in proving that actual constitutional
violations occurred in the juvenile facilities. In its order of January
25, 1995, the district court cited constitutional and statutory deficien-
_________________________________________________________________

3 The district court joined the First, Ninth, Tenth, and Eleventh Circuits
in reviewing the conditions at state juvenile facilities under the standards
of the Due Process Clause of the Fourteenth Amendment. See Gary H.
v. Hegstrom, 831 F.2d 1430, 1431-32 (9th Cir. 1987); H.C. ex rel.
Hewett v. Jarrard, 786 F.2d 1080, 1084-85 (11th Cir. 1986); Santana v.
Collazo, 714 F.2d 1172, 1179 (1st Cir. 1983); Milonas v. Williams, 691
F.2d 931, 942 & n.10 (10th Cir. 1982). But see Nelson ex rel. Nelson v.
Heyne, 491 F.2d 352, 355 (7th Cir. 1974) (applying the cruel and unusual
punishment test of the Eighth Amendment). This issue was not appealed.

7
cies in the areas of fire safety, food services, medical services, pro-
gramming, overcrowding, and staffing levels. See Alexander S. ex rel.
Bowers v. Boyd, 876 F. Supp. 773, 786-95 (D.S.C. 1995). The court
also found that the Plaintiffs' constitutional rights had been infringed
upon by the improper use of CS gas, a potent form of tear gas used
for riot control, and by the State's failure to adequately identify those
Plaintiffs who suffer from a "disability" for purposes of the facilities'
educational programs. See id. at 785-88. Accordingly, the district
court ordered the State to devise and implement a remedial plan to
cure each violation. It also stated its intent to appoint a special master
to monitor the implementation of the program. See id. at 803-05. The
State did not appeal.

On November 22, 1995, after submissions and arguments, the dis-
trict court issued an order awarding Plaintiffs attorney's fees for work
relating to the January 1995 order. The State appealed the fee award,
but argued only that the rates, hours, and documents submitted by
Plaintiffs were inaccurate. In fact, during oral arguments before this
court held two weeks after the effective date of the PLRA, the State
specifically disavowed any claim that the PLRA limited the fee award.4
Finding no error, we affirmed the award. See Alexander S. ex rel.
Bowers v. Boyd, 89 F.3d 827 (4th Cir. 1996) (unpublished).
_________________________________________________________________

4 Specifically, the State was asked

if it made any additional argument based on the recent amend-
ments to the Civil Rights of the Institutionalized Persons Act, 42
U.S.C. § 1997 (1994). The State specifically disavowed any such
claims. We note that it is not at all clear whether the 1996
amendments, which apply only to persons confined to a "jail,
prison or other correctional facility" apply to juveniles confined
in juvenile institutions, or even if they did whether they would
apply retroactively. However, we need not reach that question
here in view of the State's decision not to pursue any argument
under the Act.

Alexander S. ex rel. Bowers v. Boyd, 89 F.3d 827 (4th Cir. 1996) (unpub-
lished).

8
B.

On May 25, 1995, the State submitted its proposed remedial plan
in accordance with the January 1995 district court order. The district
court approved the plan, which provided, in pertinent part, for an
increase in the facilities' security staff. The amount of the staffing
increase was expressly dependent upon an anticipated reduction in the
juvenile facilities' population.

On August 30, 1995, the district court held a status conference to
assess the remedial plan's implementation progress. The court-
appointed special master testified that the existing conditions "caused
him to fear for the safety of the juveniles." (J.A. at 20.) At this confer-
ence, Plaintiffs made an oral motion to increase security staffing at
the various juvenile facilities. Plaintiffs subsequently submitted in
writing an Emergency Motion for Temporary Relief. Plaintiffs then
filed a superseding Motion to Modify the Plan with regards to secur-
ity staffing needs due to an increase, rather than the anticipated
decrease, in the number of juveniles detained in the facilities.

In December 1995, the district court held a hearing on the Plain-
tiffs' motion to modify the remedial plan to increase staffing. During
this hearing, the State agreed to revise its proposed plan. Following
the December modification hearing, the district court issued an
interim order on February 16, 1996, in which it found that the level
of security staffing remained constitutionally inadequate and ordered
the State to institute the revised plan presented during the modifica-
tion hearing. The district court also found that Plaintiffs were the
"prevailing party" on this issue and were entitled to reasonable attor-
ney's fees pursuant to 42 U.S.C.A. § 1988 (West 1994 & Supp.
1997). In addition, the district court acknowledged Plaintiffs' future
entitlement to attorney's fees for ongoing monitoring activities and
set up a procedure for the submission of fees.5
_________________________________________________________________

5 The district court stated that it would rely on previously filed affida-
vits regarding general attorney background information and billing rates,
except as to any new attorneys, absent specific objection from the State.
The district court then instructed:

[The State] shall be allowed ten days after service of plaintiffs
initial affidavits and billing documents to draw the court's atten-

9
C.

Plaintiffs subsequently submitted separate motions for attorney's
fees related to, among other things, the December modification hear-
ing and subsequent monitoring activities. The State timely filed objec-
tions arguing that the "results obtained" in the December modification
hearing did not justify the fee sought and that charges for secretarial
services and work performed preparing a separate attorney's fee
appeal and a December 1993 memorandum were improper. The State
also submitted a supplemental memorandum, after the enactment of
the PLRA, arguing that the limitations contained in § 803(d) of the
PLRA applied to Plaintiffs' pending fee requests. After considering
the State's various objections, the district court issued an order on
May 29, 1996, awarding Plaintiffs attorney's fees for services per-
formed by counsel from May 1995 until February 1996, including the
December 1995 modification hearing. The district court specifically
concluded that it did not need to determine the applicability of the
PLRA because the fees at issue were all incurred prior to the PLRA's
enactment date.

Meanwhile, Plaintiffs continued to submit fee applications to the
district court for monitoring work performed from February through
July 1996. The State again timely filed objections to the fees, in
which the State reiterated its position that the restrictions on attor-
ney's fees set forth in § 803(d) of the PLRA applied to the Plaintiffs'
fee applications. However, by order dated August 30, 1996, the dis-
trict court awarded Plaintiffs additional fees for monitoring activities
from February through July 1996 based on pre-PLRA standards. After
conducting an in-depth analysis, the district court concluded that
§ 803(d) did not apply to Plaintiffs because the juveniles, while
admittedly "prisoners" under the PLRA, were not "confined to a
_________________________________________________________________

tion to any perceived inadequacies in the form of plaintiffs' fee
submission to the court. Plaintiffs shall be allowed ten days after
the filing of [the State's] specification of inadequacy to supple-
ment the previously filed documents. [The State] shall then be
allowed the usual fifteen days after service of plaintiffs' supple-
mentation to provide any objections to the content of plaintiffs'
submission.

(J.A. at 30.)

10
prison, jail, or other correctional facility" as that phrase is defined by
42 U.S.C.A. § 1997 (West 1994), a section left unaltered by the
PLRA. And again, on October 2, 1996, the district court, over the
State's objection that the PLRA limited the available fee award,
awarded Plaintiffs attorney's fees based on pre-PLRA standards for
monitoring performed in August 1996. We have consolidated the
State's timely appeals of the orders of February 16, May 29, August
30, and October 2, 1996.

II.

On April 26, 1996, Congress enacted the PLRA, landmark legisla-
tion that, by imposing new restrictions on class action and individual
prisoner lawsuits, sharply circumscribes a prisoner's ability to seek
remedies for alleged unconstitutional prison conditions. To limit fed-
eral courts' involvement in the daily operation of federal and state
correctional facilties, the PLRA made significant changes to Titles 18,
28, and 42 of the United States Code. For the purposes of this appeal,
we are concerned primarily with §§ 802 and 803 of the PLRA (codi-
fied at 18 U.S.C.A. § 3626 (West Supp. 1997) and 42 U.S.C.A.
§ 1997e (West Supp. 1997)).6
_________________________________________________________________

6 Although the present appeal focuses on the language of §§ 802 and
803 of the PLRA, the Act amended numerous sections of Titles 18, 28,
and 42. Section 802 amended 18 U.S.C.A. § 3626 to narrow the relief
available to prisoners claiming unconstitutional conditions of confine-
ment. Section 803, in addition to completely revising 42 U.S.C.A.
§ 1997e, made technical revisions to 42 U.S.C.A. §§ 1997a, 1997b, and
1997c. Section 804 of the PLRA amended 28 U.S.C.A. § 1915 to require,
among other things, prisoners proceeding in forma pauperis to pay a par-
tial filing fee before filing a lawsuit or proceeding with an appeal, and
§ 805 created 28 U.S.C.A. § 1915a which requires district courts to dis-
miss any frivolous claims brought by a prisoner. Section 806 of the
PLRA amended 28 U.S.C.A. § 1346 and now prohibits a convicted felon
from bringing a civil action alleging mental or emotional injury while in
custody without a prior showing of physical injury. Section 807 directs
that any damages awarded to a "prisoner" in connection with a civil
action brought against any "jail, prison or correctional facility" shall be
used to satisfy any pending restitution orders against the prisoner, and
§ 808 provides that the victims of the crime for which the prisoner is
incarcerated are to be notified of the pending payment of these damages.

11
Prior to the PLRA, § 3626 of Title 18 was titled "Appropriate rem-
edies with respect to prison crowding." Section 802 of the PLRA,
however, amended the statute to provide the specific avenue through
which prisoners may institute class actions to obtain prospective relief
for prison conditions in general, not only for prison crowding. See 18
U.S.C.A. § 3626(a), and (g)(2) (setting forth the requirements for
obtaining prospective relief in "any civil proceeding arising under
Federal law with respect to the conditions of confinement or the
effects of actions by government officials on the lives of persons con-
fined in prison"). In fact, Plaintiffs agreed at oral argument that the
Plaintiffs' underlying § 1983 action, if initiated after April 26, 1996,
properly would have been brought under § 802 of the PLRA, in addi-
tion to 42 U.S.C.A. § 1983 (West Supp. 1997).

Section 802 limits the remedies available in actions challenging
conditions of confinement brought under any Federal law, as in this
action, which was brought under 42 U.S.C.A. § 1983. Commonly
known as the "Stop Turning Out Prisoners" (STOP) provisions, § 802
limits a federal court's ability to grant prospective relief. Specifically,
§ 802's provisions restrict preliminary injunctive relief, see 18
U.S.C.A. § 3626(a)(2); prohibit the imposition of population caps
except as a last resort, see 18 U.S.C.A. § 3626(a)(3); allow for the
immediate termination of prospective relief after a limited time, see
18 U.S.C.A. § 3626(b); restrict approval of consent decrees, see 18
U.S.C.A. § 3626(c); require prompt judicial decisions on motions to
modify or terminate relief, see 18 U.S.C.A. § 3626(e); and limit the
authority and payment of special masters, see 18 U.S.C.A. § 3626(f).
Congress specifically made the STOP provisions of§ 802 applicable
to juvenile prisoners detained in juvenile detention facilities who
challenge the conditions of their confinement in "any civil action with
respect to prison conditions." 18 U.S.C.A. § 3626(a)(1); see also 18
U.S.C.A. § 3626(g)(5) (defining prison to include "any Federal, State,
or local facility that incarcerates or detains juveniles or adults").
_________________________________________________________________

Section 809 created 28 U.S.C.A. § 1932 which provides for the revoca-
tion of earned released credit from an "adult convicted of a crime and
confined in a Federal correctional facility" upon the filing of a claim for
a malicious purpose or solely for harassment, or for falsely testifying
before the court, and amended 18 U.S.C.A. § 3624 regarding the revoca-
tion of earned released credit.

12
In an attempt to stem the tide of frivolous lawsuits initiated by fed-
eral and state prisoners, Congress passed § 803 of the PLRA (codified
at 42 U.S.C.A. § 1997e), which places new procedural restrictions on
lawsuits "with respect to prison conditions" whether brought under
§ 1983 or any other Federal law by "a prisoner confined in any jail,
prison, or other correctional facility." In addition to mandating admin-
istrative exhaustion, § 803 of the PLRA, entitled "Suits by prisoners,"
provides for the immediate dismissal of frivolous lawsuits, see 42
U.S.C.A. § 1997e(c); limits recovery for mental and emotional inju-
ries, see 42 U.S.C.A. § 1997e(e); limits the removal of a prisoner
from confinement during pretrial proceedings, see 42 U.S.C.A.
§ 1997e(f); allows the waiver of the right to reply to prisoner lawsuits,
see 42 U.S.C.A. § 1997e(g); and, as is pertinent to this action, restricts
the availability and amount of attorney's fees recoverable by prison-
ers under 42 U.S.C.A. § 1988, see 42 U.S.C.A. § 1997e(d).

III.

This appeal presents three issues. First, are the PLRA's limitations
on attorney's fees applicable to juveniles incarcerated in juvenile
facilities? Second, if applicable to juveniles, are the limitations appli-
cable to fee awards for work performed, but not compensated, prior
to the enactment of the PLRA? And third, do the PLRA's limitations
on attorneys' fees impose new standards for determining the appropri-
ateness of a fee award in a prison conditions suit? We address these
issues in turn. Although we generally review a district court's award
of attorney's fees for an abuse of discretion, see Plyler v. Evatt, 902
F.2d 273, 277-78 (4th Cir. 1990), we review the applicability of statu-
tory amendments de novo, see United States v. Murphy, 35 F.3d 143,
145 (4th Cir. 1994) ("Interpreting a statute is a legal issue that succes-
sive courts freely review, and hence our review is plenary.").

A.

The State contends that the PLRA's limitations on attorney's fees
apply to the district court's award of attorney's fees to the Plaintiffs
arising from the Plaintiffs' successful § 1983 action alleging unconsti-
tutional conditions of confinement in South Carolina's juvenile facili-
ties. Section 1988 provides that "[i]n any action or proceeding to
enforce a provision of section[ ] . . . 1983 . . . the court, in its discre-

13
tion, may allow the prevailing party . . . a reasonable attorney's fee."
42 U.S.C.A. § 1988(b) (West Supp. 1997). Therefore, § 1988 is the
statutory mechanism under which Plaintiffs sought attorney's fees
before the district court. Section 803 of the PLRA, however, limits the
district court's ability to award attorney's fees in lawsuits brought on
behalf of "a prisoner who is confined to any jail, prison, or other cor-
rectional facility, in which attorney's fees are authorized under sec-
tion 1988." § 803(d) (codified at 42 U.S.C.A. § 1997e(d)(1)). Whether
the State is correct in arguing that these limitations apply to the attor-
ney's fees awarded in the May, August, and October orders depends
on whether juveniles detained in the State's juvenile facilities are
"prisoners" confined to a "jail, prison, or other correctional facility."

It is undisputed that the term "prisoner" in § 803(d) of the PLRA
encompasses incarcerated juveniles. Section 803(d) provides that "the
term `prisoner' means any person incarcerated or detained in any
facility who is accused of, convicted of, sentenced for, or adjudicated
delinquent for, violations of criminal law or the terms and conditions
of parole, probation, pretrial release, or diversionary program."
§ 803(d) (codified at 42 U.S.C.A. § 1997e(h)). "Prisoner" is similarly
defined in § 802 of the PLRA.7 Therefore, resolution of whether
Plaintiffs attorney's fees may be limited turns on whether Congress
intended the phrase "jail, prison, or other correctional facility" to
include juvenile detention facilities when it enacted the PLRA.

1.

Section 803 of the PLRA does not expressly define the phrase "jail,
prison, or correctional facility." However, § 802 of the PLRA, which
sets forth the procedures through which a class of prisoners such as
Plaintiffs may contest constitutional violations pertaining to prison
conditions, defines "prison" as "any Federal, State, or local facility
that incarcerates or detains juveniles or adults accused of, convicted
_________________________________________________________________

7 Specifically, § 802(a) (codified at 18 U.S.C.A. § 3626(g) (West Supp.
1997)), defines prisoner as "any person subject to incarceration, deten-
tion, or admission to any facility who is accused of, convicted of, sen-
tenced for, or adjudicated delinquent for, violations of criminal law or
the terms and conditions of parole, probation, pretrial release, or diver-
sionary program."

14
of, sentenced for, or adjudicated delinquent for, violations of criminal
law." § 802(a) (codified at 18 U.S.C.A. § 3626(g)(5)). Accordingly,
the State contends that because Congress, when enacting the PLRA,
intended prisons to include juvenile facilities for the purpose of stat-
ing a cause of action under § 802, this court should construe prisons
to include juvenile facilities for the purpose of awarding attorney's
fees under § 803(d).

Plaintiffs, however, present four arguments in support of their posi-
tion that the attorney's fees limitations set forth in § 803(d) are inap-
plicable to this case. First, relying on the definition of "institution"
found in 42 U.S.C.A. § 1997 (West 1994), Plaintiffs contend that
Congress did not intend § 803(d) of the PLRA to apply to juvenile
facilities. Section 1997, the definitional section applicable to 42
U.S.C.A. § 1997e (the statutory provision containing the attorney's
fees limitations of the PLRA), was left unrevised by the PLRA. It
defines "institution" as any facility or institution owned and operated
by the State which is

(i) for persons who are mentally ill, disabled, or retarded,
or chronically ill or handicapped;

(ii) a jail, prison, or other correctional facility;

(iii) a pretrial detention facility;

(iv) for juveniles --

(I) held awaiting trial;

(II) residing for any State purpose in such facil-
ity or institution (other than a residential facility
providing only elementary or secondary education
that is not an institution in which reside juveniles
who are adjudicated delinquent, in need of super-
vision, neglected, placed in State custody, men-
tally ill or disabled, mentally retarded, or
chronically ill or handicapped); or

15
 (v) providing skilled nursing, intermediate or long-term
care, or custodial or residential care.

42 U.S.C.A. § 1997(1). In defining "institution," § 1997 differentiates
between a "jail, prison, or other correctional facility" and facilities for
juveniles, like the ones that are the subject of this action. Therefore,
as Plaintiffs argue, one could conclude by negative implication that
since the PLRA attorney's fee limitations in § 803(d) of the Act (codi-
fied at 42 U.S.C.A. § 1997e), apply only to prisoners confined to a
"jail, prison, or other correctional facility," and since 42 U.S.C.A.
§ 1997(1) distinguishes between a "jail, prison, or other correctional
facility" and a juvenile facility, the PLRA's limitations on attorney's
fees do not apply to juvenile Plaintiffs. Plaintiffs argue that if Con-
gress had intended for the all-encompassing definition of "prison" in
§ 802 to apply to the attorney's fees limitations in § 803, it would
have modified the definition of "institution" in § 1997 to omit the
three separate categories of facilities and to keep the terminology in
Title 42 consistent. See United States v. Langley, 62 F.3d 602 (4th
Cir. 1995) ("[I]t is proper to consider that Congress acts with knowl-
edge of existing law, and that absent a clear manifestation of contrary
intent, a newly-enacted or revised statute is presumed to be harmoni-
ous with existing law and its judicial construction." (quotations omit-
ted)), cert. denied, 116 S. Ct. 797 (1996). Therefore, Plaintiffs urge
this court to adopt the more limited definition of "jail, prison, or other
correctional facilities" found in § 1997, which, by implication, does
not include juvenile facilities.

Second, Plaintiffs rely upon the fact that, while both §§ 802 and
803 of the PLRA contain definitions of "prisoner," which includes
juveniles, Congress defined "prison" to include juvenile facilities only
in § 802. The district court agreed, reasoning that this omission was
intentional, "[g]iven the ease with which the[§ 802] definition could
have been included in [§ 803]." (J.A. at 71.)

Third, Plaintiffs cite Congress's historically different treatment of
adult and juvenile prisoners. Again, the district court agreed, relying
on (1) the distinct difference between the ability of juveniles and
adults to protect their own interests; (2) the probability that juveniles'
rights will be pursued only in class actions which require a higher
level of legal skill and long-term commitment of counsel; and (3) that

16
the clear distinction made between juvenile facilities and adult prisons
in 42 U.S.C.A. §§ 1997 and 1997a (West 1994) was left unchanged
by the PLRA.8 Because Congress did not amend these provisions, the
district court reasoned that Congress intended to maintain the distinc-
tion between juvenile facilities and adult prisons.

Finally, Plaintiffs rationalize the apparent inconsistency of defining
a juvenile not incarcerated in a "prison" as a "prisoner." The district
court reconciled the definitions by concluding that "[t]his would sim-
ply place juveniles who have been transferred to adult facilities on the
same footing as other adult prisoners." (J.A. at 72.) Therefore, accord-
ing to the district court, all inmates in adult prisons are subject to the
same rules, regardless of age.

2.

In a case that turns on statutory construction, we begin by examin-
ing the literal and plain language of the statute. See Robinson v. Shell
Oil Co., 117 S. Ct. 843, 846 (1997); Williams v. U.S. Merit Sys. Pro-
tection Bd., 15 F.3d 46, 49 (4th Cir. 1994). If the "statutory language
is unambiguous and the statutory scheme is coherent and consistent,"
our inquiry ends. Robinson, 117 S. Ct. at 846 (quotation omitted);
Murphy, 35 F.3d at 145. "The plainness or ambiguity of statutory lan-
guage is determined by reference to the language itself, the specific
context in which that language is used, and the broader context of the
statute as a whole." Robinson, 117 S. Ct. at 846 (citing Estate of
Cowart v. Nicklos Drilling Co., 505 U.S. 469, 477 (1992)). In inter-
preting statutory language, words are generally given their common
and ordinary meaning. See Murphy, 35 F.3d at 145.

Although Congress did not define the phrase "jail, prison, or other
correctional facility" in § 803 of the PLRA, the plain meaning of the
_________________________________________________________________

8 Under 42 U.S.C.A. § 1997a (West 1994), the Attorney General has
the authority to institute a civil action on behalf of a person residing in
or confined to an "institution," as defined by 42 U.S.C.A. § 1997 (West
1994), seeking relief for violations of statutory or constitutional rights.
However, § 1997a specifically limits the Attorney General's authority to
bring actions on behalf of a person confined to a "jail, prison, or other
correctional facility" to constitutional violations only.

17
phrase undoubtedly encompasses juvenile detention facilities. "Jail" is
commonly defined as a "place for the lawful confinement of persons"
or a "prison." Webster's II New Riverside University Dictionary 650
(1988). It is also defined as a "prison" or a place "usually used to hold
persons either convicted of misdemeanors (minor crimes) or persons
awaiting trial or as a lockup for intoxicated and disorderly persons."
Black's Law Dictionary 834 (6th ed. 1990). "Correctional institution"
is a "generic term describing prisons, jails, reformatories and other
places of correction and detention." Id. at 344. And, "house of correc-
tion" is defined as a "prison for the reformation of petty or juvenile
offenders." Id. Congress did not add any language limiting the scope
of these words to adult facilities. Rather, Congress prefaced the
phrase with the word "any." In a similar context, the Supreme Court
has noted that "the word `any' has an expansive meaning." United
States v. Gonzales, 117 S. Ct. 1032, 1035 (1997) (defining "any" as
"one or some indiscriminately of whatever kind" (citation omitted)).
Therefore, we must construe the phrase to include all jails, prisons,
and correctional facilities, including those housing juveniles. See id.
(construing the statutory phrase "any other term of imprisonment" as
referring to "all terms of imprisonment"). Further, the language "or
other correctional facility," is broad and inclusive, rather than exclu-
sive. Therefore, the plain meaning of the statutory language suggests
that juvenile detention facilities should be included within the scope
of the phrase "jail, prison, or other correctional facility."

We acknowledge that Congress placed the attorney's fees limita-
tions provision, applicable to prisoners confined to "jail, prison, or
other correctional facility," into Title 42, and that § 1997 of Title 42
distinguishes between a "jail, prison, or other correctional facility"
and facilities housing juveniles. Therefore, we address the apparent
conflict. Because, however, the PLRA's definition of "prison" (which
includes juvenile facilities) is inconsistent § 1997's implicit definition
of "jail, prison, or other correctional facility" (which excludes juvenile
facilities), we conclude that the phrase is ambiguous. Cf. Robinson,
117 S. Ct. at 847 (holding that the term "employee" standing alone
is ambiguous in Title VII because some sections of Title VII define
the term to include former employees, while other sections do not).

Having determined that the phrase at issue is ambiguous, we apply
the traditional tools of statutory construction. Id. at 848. In doing so,

18
"[w]e begin with the premise that all parts of the statute must be read
together, neither taking specific words out of context, nor interpreting
one part so as to render another meaningless." United States v. Snider,
502 F.2d 645, 652 (4th Cir. 1974) (citations omitted). A cardinal rule
of statutory construction is that statutes which are originally part of
the same Act should be construed together. Cf. Robinson, 117 S. Ct.
at 849 (interpreting ambiguous statutory term so as to be "more con-
sistent with the broad context of [the Act] and the primary purpose
of the [section at issue]"); New York State Conference of Blue Cross
& Blue Shield Plans v. Travelers Ins. Co., 115 S. Ct. 1671, 1677
(1995) ("[W]e begin as we do in any exercise of statutory construc-
tion with the text of the provision in question, and move on, as need
be, to the structure and purpose of the Act in which it occurs.");
United States Nat'l Bank of Oregon v. Independent Ins. Agents of
America, Inc., 508 U.S. 439, 455 (1993) ("Statutory construction is a
holistic endeavor and, at a minimum, must account for a statute's full
text, language as well as punctuation, structure, and subject matter."
(quotation and citation omitted)). More specifically, identical terms
within an Act should be given the same meaning. See Estate of
Cowart, 505 U.S. at 479 (1992); Director v. Newport, 8 F.3d 175, 184
n.8 (4th Cir. 1993). In other words, we must define § 803(d)'s "jail,
prison, or other correctional facility" phrase so that it harmonizes with
the other provisions of the PLRA, promotes the goals of the PLRA,
and gives each provision purpose.

Section 802 of the PLRA defines the term "prison" as any facility
that "detains juveniles or adults accused of, convicted of, sentenced
for, [or] adjudicated delinquent for" violating criminal law. § 802(a)
(codified at 18 U.S.C.A. § 3626(g)(5)). Given this, and the fact that
§ 803(d) includes an incarcerated juvenile within its definition of
"prisoner", we conclude that the phrase "jail, prison, or other correc-
tional facility" found in § 803(d) of the PLRA (codified at 42
U.S.C.A. § 1997e) must include juvenile facilities such as the ones
that are the subject of this action. This construction of the statute
makes the PLRA internally consistent and best furthers Congress's
intentions.

In enacting the PLRA, Congress had far-reaching goals, and noth-
ing in the Act indicates an intent to omit juveniles confined in juve-
nile facilities from its impact. To the contrary, by enacting § 803 of

19
the PLRA, Congress affirmatively amended 42 U.S.C.A. § 1997e to
replace the word "adult" with the word "prisoner," and then defined
"prisoner" to expressly include juveniles adjudicated delinquent of
crimes. In addition, § 809(a) of the PLRA (codified at 28 U.S.C.A.
§ 1932 (West Supp. 1997)) specifically limits the revocation of
earned release credit to "adult[s] convicted of a crime and confined
in a Federal correctional facility" if the district court concludes that
they filed a civil claim for a malicious purpose, solely to harass the
party against which it was filed, or if the claimant presents false evi-
dence to the court. It would be unnecessary to expressly limit § 809
to adults if the term "correctional facility" only applied to detention
facilities housing adults. A comparison of these two sections of the
PLRA demonstrates that Congress recognized the difference between
juveniles and adults when enacting the PLRA, and intended to impose
the new provisions of § 803 of the Act (codified at 42 U.S.C.A.
§ 1997e), including the restrictions on attorney's fees found in sub-
section (d), on all "prisoners," including juvenile prisoners.

Furthermore, Plaintiffs concede that § 802 of the PLRA (codified
at 18 U.S.C.A. § 3626) limits the remedies available to juveniles con-
fined in juvenile facilities in prison conditions lawsuits. We can dis-
cern no reason for Congress to limit the more important substantive
remedies available to juveniles under § 802 of the PLRA, yet not limit
the availability of attorney's fees under § 803. The purpose of the
attorney's fees provision is to encourage private attorneys to represent
plaintiffs bringing meritorious lawsuits to expose unconstitutional
prison conditions. The limitations placed on fee awards by § 803 do
not undermine this purpose. If private attorneys find that fee limita-
tions hinder their ability effectively to litigate these cases, 42
U.S.C.A. § 1997a (West 1994 & Supp. 1997), left intact by the
PLRA, authorizes the Attorney General to institute actions on behalf
of persons residing in or confined to a jail, prison, or other correc-
tional facility if the Attorney General has reasonable cause to believe
that such persons are being subjected to unconstitutional conditions
of confinement. See 42 U.S.C.A. § 1997a(a).

Moreover, we are not persuaded by Plaintiffs' argument that Con-
gress intended the definition of "prisoner" in § 803 to include juve-
niles only when they are confined to adult prisons. This construction
does not harmonize the provisions of the PLRA. The Juvenile Prose-

20
cution Act of 1994 prohibits the placement of juveniles in adult fed-
eral facilities. See 18 U.S.C.A. § 5039 (West Supp. 1997) ("No
juvenile committed, whether pursuant to an adjudication of delin-
quency or conviction for an offense, to the custody of the Attorney
General may be placed or retained in an adult jail or correctional
institution. . . ."). Also, a juvenile who is simply "accused of" a crime
or even "adjudicated delinquent" would not, under normal circum-
stances, be confined to an adult state facility. Therefore, to adopt
Plaintiffs' reasoning would render the "accused of" and "adjudicated
delinquent" language in the definition of "prisoner" superfluous.
Therefore, while we recognize the apparent conflict with the defini-
tion of "institution" found in 42 U.S.C.A. § 1997, we hold that a limi-
tation of the phrase "jail, prison, or other correctional facility" to adult
prison facilities in § 803 of the PLRA would be inconsistent with
other language within the section, other sections of the Act, and the
plain and usual meanings of the relevant terms. As a result, we con-
clude that Plaintiffs are subject to the attorney's fees limitations of the
PLRA because they are "prisoner[s] . . . confined to any jail, prison,
or other correctional facility." § 803(d) (codified at 42 U.S.C.A.
§ 1997e(d)).

B.

Having determined that the PLRA's limitations on attorney's fees
apply to Plaintiffs, we next address the applicability of the provisions
to the fees awarded in the May and August orders for services per-
formed by Plaintiffs' counsel prior to the enactment of the PLRA.

1.

Plaintiffs argue that the State waived application of the provisions
to work performed prior to the enactment of the PLRA during oral
arguments before this court on May 6, 1996. At that time, the State
was appealing a November 22, 1995 order in which the district court
awarded Plaintiffs attorneys' fees for work related to this ongoing liti-
gation. As previously noted, see supra n.4, in response to inquiry dur-
ing oral argument as to whether the State had any argument based on
the attorney's fees provisions contained in the recently enacted
PLRA, the State "specifically disavowed any such claims." Alexander
S. ex rel. Bowers v. Boyd, 89 F.3d 827 (4th Cir. 1996) (unpublished).

21
We do not consider the State's waiver of application of the PLRA's
attorney's fees provision to the November 1995 order to be a waiver
of the statute's applicability to all future awards based on work com-
pleted prior to April 26, 1996. The November order is a separate
order, independent of the February, May, August, and October orders
currently being appealed. To restrict the State's arguments in this
appeal to those argued in a previous appeal is obviously impermissi-
ble. Furthermore, because the parties have not, prior to this appeal, lit-
igated the applicability of the PLRA's attorney's fees limitations
before this Court, we are not bound by res judicata.

The State timely raised the statute's applicability for the district
court's consideration prior to the issuance of the May order. In its
memorandum, the State argued that the restrictions of § 803(d) (codi-
fied at 42 U.S.C.A. § 1997e(d)) applied to Plaintiffs' pending fee
applications for work performed from May 1995 until February 1996.
The State reiterated this position in later memorandums filed in objec-
tion to Plaintiffs' subsequent fee applications. As a result, we con-
clude that the State preserved the issue of the amendments'
application to all awards made by the district court subsequent to the
enactment of the PLRA.

2.

Section 803(d) of the PLRA provides that "[n]o award of attor-
ney's fees" ordered in an action brought by a prisoner claiming
unconstitutional conditions of confinement "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." § 803(d) (codified at 42 U.S.C.A. § 1997e(d)(3)) (emphasis
added). The plain language of the statute mandates that all attorney's
fees awarded after April 26, 1996, in any prison conditions lawsuit
comply with the restrictions imposed by the PLRA. 9 See Williams v.
_________________________________________________________________

9 While we are specifically analyzing the language codified at 42
U.S.C.A. § 1997e(d)(3) in this section to determine its applicability to
fees incurred prior to, but awarded subsequent to the enactment of the
PLRA, the same analysis applies to the fee restrictions contained in sub-
sections (d)(1) (heightening eligibility requirements for attorney's fees)
and (d)(2) (limiting fees available when a monetary judgment is
awarded). Both § 1997e(d)(1), discussed at III.C.2., and (d)(2), which is
inapplicable to this case, expressly apply to all fee awards made subse-
quent to the enactment of the PLRA.

22
U.S. Merit Sys. Protection Bd., 15 F.3d 46, 49 (4th Cir. 1994) (stating
that "[s]tatutory construction begins with an examination of the literal
language of the statute" (quotations omitted)). There is, quite simply,
no award until an order is issued, and all of the orders appealed were
entered after the statute's enactment.10 Congress could have easily
inserted language to restrict the application of these limitations to
awards for work performed subsequent to the PLRA's enactment, but
it did not do so. Accordingly, the plain language of § 803(d) of the
PLRA (codified at 42 U.S.C.A. § 1997e(d)) mandates that the attor-
ney's fees limitations apply to the awards made in the May, August,
and October orders, regardless of when the work being compensated
was performed.

We acknowledge that other courts that have addressed the applica-
bility of the attorney's fees provisions of § 803 of the PLRA to pend-
ing cases have refused to apply the limitations, concluding that such
application would have an impermissible retroactive effect. See
Jensen v. Clarke, 94 F.3d 1191, 1201-1203 (8th Cir. 1996) (conclud-
_________________________________________________________________

10 The Dissent argues that "the`award' of attorney's fees occurred on
February 16, 1996 when the court set out its instructions regarding how
further [monitoring] fees would [be] paid." Dissenting Op. at 62. We dis-
agree. While the district court recognized that Plaintiffs were "entitled"
to attorney's fees for future monitoring activity in the February 16 order,
it did not award fees. Rather, its limited ruling on this issue was a finding
that it was "appropriate . . . for plaintiffs' counsel to play some role in
this monitoring process" and to be compensated. The district court stated
that its decision to "consider fee applications for monitoring activity
[was] not . . . prior approval of any fee request." (J.A. at 29.) As the Dis-
sent concedes, the district court had yet to determine "at what rate and
for how many hours" counsel was to be compensated. Dissenting Op. at
62. To conclude, as the Dissent does, that the district court awarded
Plaintiffs attorney's fees on February 16 for all future monitoring activ-
ity, without assessing the reasonableness of such fees, is to condone pure
speculation and arbitrariness by the district court. We decline to interpret
the district court's order in such a way. Moreover, to adopt the Dissent's
rationale would require us to find the PLRA's fee restrictions inapplica-
ble to all attorney's fees awarded in this case for monitoring activity
related to the implementation of the remedial plan, even when the moni-
toring occurred subsequent to April 26, 1996. Even the Dissent does not
propose this result.

23
ing that application of the attorney's fees provisions in § 803(d) to
Plaintiffs and their attorneys who had worked for "literally years" on
the assumption that their fees would be based on 42 U.S.C.A. § 1988
would be "manifestly unjust"); Cooper v. Casey, 97 F.3d 914, 921
(7th Cir. 1996) (same); see also Weaver v. Clarke, 933 F. Supp. 831,
834 (D. Neb. 1996) (refusing to apply § 803(d)'s limitations when
determining attorney's fees awarded after the enactment of the PLRA
for work performed prior to the enactment of the PLRA). But cf.
Hadix v. Johnson, 947 F. Supp. 1113, 1114-1115 (E.D. Mich. 1996)
(concluding that § 803 of the PLRA applies when determining attor-
ney fee awards for work completed after enactment of the PLRA in
a prison conditions case arising prior to enactment of the PLRA).
With all due respect to our sister Circuits, we find their analyses flawed.11

In Landgraf v. USI Film Prods., 114 S. Ct. 1483 (1994), the
Supreme Court outlined a three-step inquiry to be undertaken when
determining whether a court should apply a new statute to actions that
occurred prior to the enactment of the statute. See id. at 1505. First,
we ascertain whether Congress expressly prescribed the reach of the
statute. Although we are bound by Congress's directive, see id., noth-
ing in § 803 of the PLRA expressly prescribes its reach. Unlike § 802,
which Congress expressly made applicable to pending cases, § 803
contains no stated effective date. We decline to draw any negative
_________________________________________________________________

11 Contrary to the Dissent's assertion that we are creating a circuit split
as to the retroactive application of the PLRA's attorney's fees restric-
tions, Plaintiffs' case is distinguishable from both Jensen v. Clarke, 94
F.3d 1191 (8th Cir. 1996), and Cooper v. Casey, 97 F.3d 914 (7th Cir.
1996), in one key aspect -- the district court made the attorney's fee
awards in both Jensen and Cooper prior to the enactment of the PLRA.
Therefore, the attorney's fees limitations of § 803 were inapplicable to
the awards based on the plain language of the statute regardless of any
possible retroactivity problems. Nevertheless, the courts conducted a
retroactivity analysis and both courts concluded that applying the fee
limitations to pending cases would be "manifestly unjust" because, as the
Eighth Circuit lamented, Plaintiffs and their attorneys "have litigated for
literally years under . . . the assumption that Section 1988 would apply
to this case." Jensen v. Clarke, 94 F.3d 1191, 1203 (8th Cir. 1996). "If
we apply the Act, those expectations will be foiled. Thus, application of
the Act in this case would have the retroactive effect of disappointing
reasonable reliance on prior law." Id. at 1202.

24
inferences from the express inclusion of a provision making § 802
applicable to pending cases and the absence of the same from § 803.
Cf. id. at 1494 (rejecting argument that "because Congress provided
specifically for prospectivity in two places . . . we should infer that
it intended the opposite for the remainder of the statute").

Absent an express directive from Congress, we must apply a newly
enacted statute to pending cases unless doing so would give the stat-
ute "retroactive effect." Id. at 1503 ("`[A] court is to apply the law in
effect at the time it renders its decision, unless doing so would result
in manifest injustice or there is statutory direction or legislative his-
tory to the contrary.'" (quoting Bradley v. School Bd. of Richmond,
416 U.S. 696, 711 (1974))). If application of the new statute would
have retroactive effect, then "our traditional presumption teaches that
it does not govern absent clear congressional intent favoring such a
result." Id. at 1505. However, "[a] statute does not operate `retrospec-
tively' merely because it is applied in a case arising from conduct
antedating the statute's enactment, or upsets expectations based in
prior law." Id. at 1499 (citation omitted); see also id. at 1498 ("[T]he
potential unfairness of retroactive civil legislation is not a sufficient
reason for a court to fail to give a statute its intended scope."). Rather,
the Supreme Court has instructed us that application of a new statute
to a pending case has a retroactive effect only when "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."12 Id. at 1505. In other words, the court must
determine "whether the new provision attaches new legal conse-
quences to events completed before its enactment." Id. at 1499.

In Landgraf, the Supreme Court recognized several types of stat-
utes that, even though enacted after the events giving rise to the
_________________________________________________________________

12 While application of the PLRA's fee limitations may upset the
expectations of Plaintiffs' counsel, it cannot be said that the imposition
of the restrictions directly affects the Plaintiffs. Therefore, because a stat-
ute has a retroactive effect under Landgraf only when it negatively
impacts a party's expectations or rights, statutory restrictions as to the
amount and availability of attorney's fees will not generally raise retroac-
tivity problems. See Landgraf v. USI Film Prods., 114 S. Ct. 1483, 1503
(1994).

25
underlying lawsuit, could be applied to pending cases without having
a retroactive effect. For example, the Court noted that application of
a new statute that affects only secondary, rather than primary, conduct
does not give rise to concerns about retroactivity.13 See id. at 1502.
The Court then specifically cited attorney's fee determinations as an
example of secondary conduct that "[does] not resemble the cases in
which we have invoked the presumption against statutory retroactiv-
ity." Id. at 1503; see also id. ("Attorney's fee determinations . . . are
`collateral to the main cause of action' and `uniquely separable from
the cause of action to be proved at trial.'" (quoting White v. New
Hampshire Dep't of Employment Sec., 455 U.S. 445, 451-52 (1982))).

We conclude, therefore, that application of the PLRA's fee limita-
tions to the awards made in the district court's May and August orders
does not have an impermissible retroactive effect because the deter-
mination of attorney's fees awards, which are collateral to the main
cause of action, does not attach new legal consequences to completed
events. Moreover, the modifications made by § 803 of the PLRA to
a plaintiff's entitlement to attorney's fees are not so fundamentally
unfair as to result in manifest injustice. Cf. Farrar v. Hobby, 506 U.S.
103, 115 (1992) (instructing that § 1988 was "never intended to pro-
duce windfalls to attorneys" (quotation omitted)); see also id. at 122
(stating that § 1988 "is not a relief Act for lawyers" (quotation omit-
ted) (O'Connor, J., concurring)). As a result, the district court erred
when it failed to apply the law in effect at the time it entered its May
and August orders.
_________________________________________________________________

13 In Landgraf, the Court noted several additional examples of new stat-
utes whose application to pending cases was proper. These included stat-
utes whose plain language unambiguously requires application to
pending cases, see United States v. Schooner Peggy, 1 Cranch 103, 5
U.S. 103 (1801); statutes authorizing or affecting the propriety of pro-
spective relief, see American Steel Foundries v. Tri-City Central Trades
Council, 257 U.S. 184 (1921); statutes conferring or ousting jurisdiction,
see Bruner v. United States, 343 U.S. 112 (1952); and statutes revising
procedural rules, see Collins v. Youngblood, 497 U.S. 37 (1990). See
Landgraf v. USI Film Prods., 114 S. Ct. 1483, 1501-1502 (1994) (col-
lecting cases).

26
C.

Finally, we address the new standards imposed by the PLRA for
determining a fee award in a prison conditions suit. Section 803(d) of
the PLRA requires the district court to conduct a three-step analysis
when reviewing attorney's fees requests. First, the court must be satis-
fied that the plaintiff is eligible for fees under 42 U.S.C.A. § 1988.
Prior to the enactment of the PLRA, a plaintiff in a prison conditions
lawsuit obtained attorney's fees solely through 42 U.S.C.A. § 1988.
Section 1988 allows the district court to award reasonable attorney's
fees to a prevailing party "[i]n any action or proceeding to enforce a
provision of section[ ] . . . 1983." 42 U.S.C.A. § 1988(b). "[T]o qual-
ify as a prevailing party, a civil rights plaintiff must obtain at least
some relief on the merits of his claim. The plaintiff must obtain an
enforceable judgment against the defendant from whom fees are
sought, or comparable relief through a consent decree or settlement."
Farrar, 506 U.S. at 111 (citation omitted); accord S-1 and S-2 v. State
Bd. of Ed., 21 F.3d 49, 51 (4th Cir. 1994) (en banc). Moreover, the
fee request must be "reasonable." This Court has articulated twelve
factors which the district court should consider when determining the
reasonableness of an attorney's fee request. See Barber v. Kimbrell's
Inc., 577 F.2d 216 (4th Cir. 1978). Second, § 803(d) of the PLRA
requires the plaintiff to prove that "the fee was directly and reason-
ably incurred in proving an actual violation of the plaintiff's rights . . .
and . . . is proportionately related to the court ordered relief . . . or
. . . was directly and reasonably incurred in enforcing the relief
ordered" before fees can be awarded. § 803(d) (codified at 42
U.S.C.A. § 1997e(d)(1)). And finally, § 803(d) of the PLRA imposes
a cap on the hourly rate available to a plaintiff's counsel of 150 per-
cent of the hourly rate available to court-appointed counsel. See
§ 803(d) (codified at 42 U.S.C.A. § 1997e(d)(3)). Therefore, the dis-
trict court must compute the maximum hourly rate allowable and
determine whether a plaintiff's counsel is entitled to the maximum
rate or a reduced amount.14
_________________________________________________________________

14 The district court ruled that if it had applied the fee limitations of
§ 803(d), it would have awarded counsel for Plaintiffs the maximum
hourly rate available. We express no opinion as to the appropriateness of
such an award. The district court may, of course, reconsider the award
on remand.

27
1.

The State challenges the district court's finding that Plaintiffs were
eligible for fees pursuant to 42 U.S.C.A. § 1988 on two grounds.
First, the State contends that the district court erred when it awarded
Plaintiffs attorney's fees for work relating to the December modifica-
tion hearing because, they argue, Plaintiffs were not the "prevailing
party" in that proceeding. Second, the State argues that the district
court abused its discretion when it failed to expressly consider all the
Barber factors when evaluating the "reasonableness" of Plaintiffs' fee
requests. We address the State's arguments in turn.

a.

The State argues that Plaintiffs failed to prove their initial eligibil-
ity for fees under 42 U.S.C.A. § 1988 for work relating to the Decem-
ber staffing hearing and modification motion. The State contests
Plaintiffs' status as prevailing party in the resulting February order
because (1) the order was only an "interim," rather than a final order,
and (2) the State consented to the revised plan, rendering the Plain-
tiffs' motion nothing more than a "catalyst" for the modification. We
disagree and hold that the district court properly determined that
Plaintiffs were the "prevailing party" in the February order and, there-
fore, were eligible for fees under 42 U.S.C.A. § 1988.

Part of the remedial plan initially proposed by the State included
an increase in the number of security staff to provide minimal levels
of physical safety for the juveniles housed in the State's juvenile
facilities. The proposed plan, in addition to increasing staff, included
a population reduction of 100 juveniles by July 15, 1996, and 200
juveniles by July 15, 1997. During the June 1994 trial, the juvenile
population ranged from 670 to 730 at institutions that had a rated
capacity of 299. By July 13, 1995, however, the juvenile population
had risen to 851, rather than declining. As a result, Plaintiffs moved
for emergency relief, requesting additional staffing. Also, at the
August 1995 status conference, the special master appointed to moni-
tor the State's compliance with the plan lamented that the facilities
remained unsafe and that an emergency situation existed.

In response, the State asked the district court to grant it time to
implement the original remedial plan. The State also argued that there

28
had been no change in circumstances warranting the relief sought by
Plaintiffs. Plaintiffs nevertheless moved for a modification of the
remedial plan based on the unexpected increase in the juvenile popu-
lation. Plaintiffs argued that the modification was necessary because
the State's original plan was predicated upon a reduction in popula-
tion.

During the subsequent three-day hearing in December 1995, Plain-
tiffs presented testimony from several juvenile witnesses, Department
of Juvenile Justice employees, and two experts. At the time of the
hearing, the juvenile population had increased to approximately 1000.
Nevertheless, at the beginning of the hearing the State maintained
there had been no change in conditions at the juvenile facilities and
that the modifications requested by Plaintiffs were premature and
unnecessary. However, at the completion of Plaintiffs' case, the State
conceded the need for additional security staffing and proposed its
revised remedial plan. The State also conceded that it had begun
increasing personnel shortly before the December hearing, and that it
planned additional increases due to the rise in the juvenile population.

The district court issued an order on February 16, 1996, requiring
the State to increase staffing to "at least that level of staffing set forth
in [the State's revised] plan." (J.A. at 24.) The court further found that
the order was "only interim and [was] subject to further modification
after an appropriate amount of time has passed to allow evaluation of
[the State's] modified staffing plan." (J.A. at 24.) The district court
specifically concluded that Plaintiffs were the prevailing party in the
December action and provided for the submission of affidavits for an
award of attorney's fees for the staffing issue and monitoring activi-
ties since the January 1995 order.

The State contends that Plaintiffs were not a prevailing party, but
merely a catalyst which encouraged the State to adopt an increased
staffing plan. This Court has clearly rejected the "catalyst theory" as
a means of acquiring prevailing party status for the purposes of 42
U.S.C.A. § 1988. See Arvinger v. Mayor and City Council of
Baltimore, 31 F.3d 196, 198 (4th Cir. 1994) (citing S-1 & S-2 v. State
Bd. of Ed., 21 F.3d 49, 51 (4th Cir. 1994) (en banc)). To acquire pre-
vailing party status, Plaintiffs must "succeed on[a] significant issue
in litigation which achieves some of the benefit the parties sought in

29
bringing the suit." Arvinger, 31 F.3d at 200 (quotation omitted).
Moreover, "[t]he plaintiff must obtain an enforceable judgment
against the defendant from whom fees are sought or comparable relief
through a consent decree or settlement." Farrar, 506 U.S. at 111. "In
short, a plaintiff `prevails' when actual relief on the merits of his
claim materially alters the legal relationship between the parties by
modifying the defendant's behavior in a way that directly benefits the
plaintiff." Id. at 111-12. The February 16 order was an enforceable
order against the State requiring it to increase security staffing levels
at the juvenile facilities pursuant to a modified plan. Thus, it materi-
ally altered the "legal relationship" between Plaintiffs and the State.
See id. at 113 ("No material alteration of the legal relationship
between the parties occurs until the plaintiff becomes entitled to
enforce a judgment, consent decree, or settlement against the defen-
dant.").

Under these circumstances, the fact that the new plan was "volun-
tarily" proposed by the State rather than the court is irrelevant. Plain-
tiffs moved for a modification of the State's original remedial plan.
The State opposed Plaintiffs' motions, arguing that their original plan
should be given time to work. It was not until the conclusion of Plain-
tiffs' presentation at the December hearing, during which the State
attempted to discredit many of Plaintiffs' witnesses, that the State
conceded that increased staffing was necessary to protect the juve-
niles housed in the State's juvenile facilities. Furthermore, while the
State implemented some of the ordered changes prior to the hearing,
many were not instituted until afterwards, in accordance with the dis-
trict court's order. As a result of Plaintiffs' motions and the subse-
quent hearing, the district court ordered the State to modify its
original remedial plan to provide for increased staffing at the levels
proposed by the State during the hearing. This order memorialized the
"resolution of [a] dispute which change[d] the legal relationship
between [the State] and [Plaintiffs]." Farrar, 516 U.S. at 111.
Accordingly, the district court did not err in concluding that Plaintiffs
were the prevailing parties in the December modification hearing. See
S-1 and S-2 v. State Bd. of Ed., 6 F.3d 160, 171 (4th Cir. 1993) (Wil-
kinson, C.J., dissenting) ("[A] voluntary change in conduct[,] formal-
ized in a legally enforceable settlement agreement[, will] transform a
plaintiff into a prevailing party for purposes of § 1988."), adopted as
majority opinion, 21 F.3d 49, 51 (4th Cir. 1994) (en banc).

30
b.

The State also challenges the awards of attorney's fees in the Feb-
ruary 16, May 29, and August 30, orders, arguing that the district
court abused its discretion when it failed to expressly consider all the
factors articulated in Barber v. Kimbrell's Inc., 577 F.2d 216 (4th Cir.
1978). "It is well settled that district courts have considerable discre-
tion in awarding attorneys' fees, and we must not overturn an award
by the district court unless it is clearly wrong." Colonial Williamsburg
Foundation v. Kittinger Co., 38 F.3d 133, 138 (4th Cir. 1994) (cita-
tion omitted).

We have enunciated twelve factors that the district court must con-
sider when determining the reasonableness of an attorney fee request.
See Barber, 577 F.2d at 226 n.28.15 We have also held that any award
of attorney's fees must be accompanied by detailed findings of fact
with regard to the factors. See id. at 226. With that having been said,
we conclude that the State forfeited any error made by the district
court in failing to expressly address the Barber factors in each of the
appealed orders. In its February 16 order, the district court set forth
its "Fee application procedures" for counsel. It instructed both parties
as follows:
_________________________________________________________________

15 The Barber factors include:

(1) the time and labor expended; (2) the novelty and difficulty of
the questions raised; (3) the skill required to properly perform
the legal services rendered; (4) the attorney's opportunity costs
in pressing the instant litigation; (5) the customary fee for like
work; (6) the attorney's expectations at the outset of the litiga-
tion; (7) the time limitations imposed by the client or circum-
stances; (8) the amount in controversy and the results obtained;
(9) the experience, reputation and ability of the attorney; (10) the
undesirability of the case within the legal community in which
the suit arose; (11) the nature and length of the professional rela-
tionship between the attorney and client; and (12) attorneys' fees
awards in similar cases.

See Barber v. Kimbrell's, Inc., 577 F.2d 216, 226 n.28 (4th Cir. 1978)
(citing Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th
Cir. 1974)).

31
 The court will not require plaintiffs to file affidavits which
duplicate the general attorney background information and
billing rates filed in support of the prior fee application
except as to any new attorneys or attorneys for whom plain-
tiffs are now claiming a different billing rate. The court will
rely on the affidavits previously filed in this matter absent
specific objection from defendants.

(J.A. at 30 (emphasis added).)16 The district court further provided
that after Plaintiffs' counsel submitted fee affidavits, the State had ten
days to "draw the court's attention to any perceived inadequacies in
the form of Plaintiffs' fee submission to the court." (J.A. at 30.) Plain-
tiffs then had an opportunity to respond, after which the State had fif-
teen additional days to object to the submission of fees. The State,
however, neither objected to the fees on the basis of any of the Barber
factors nor objected to the district court's failure to expressly address
the Barber factors.

Nevertheless, we may correct a forfeited error. See United States
v. Olano, 113 S. Ct. 1770, 1777 (1993). A review of the record, how-
ever, reveals that the district court did not err. To the contrary, there
is ample evidence demonstrating that the district court carefully
reviewed the fee applications and determined their reasonableness. As
noted, the district court set forth a specific procedure for attorney's
fee applications such that the State had ample opportunity to object
to any submissions by the Plaintiffs. The State made several objec-
tions to the fee applications, including general claims of overbilling,
billing time for secretarial services, and billing for multiple people
unnecessarily attending the same proceedings. The district court
examined the objections and, agreeing with the State in part, reduced
one fee award by $6,500 (J.A. at 62), and another by $800 (J.A. at
66).17 These reductions are strong evidence that the district court,
_________________________________________________________________

16 We note that the district court had dealt with the issue of attorney's
fees awards in the underlying case since the submission of the first
motion for attorney's fees by Plaintiffs on April 24, 1992. As a result,
the district court and the parties were intimately familiar with the neces-
sary background information used to evaluate each attorney and the type
of work involved in this case.

17 Also, Plaintiffs voluntarily reduced fees by $8,143 in response to the
State's objections. (J.A. at 59.)

32
while not specifically addressing each Barber factor, carefully consid-
ered each fee application. See Colonial Williamsburg, 38 F.3d at 138
(holding that the district court's disallowance of all requested fees
was evidence of adequate review of petition for attorney's fees,
despite the court's failure to address all Barber factors). Accordingly,
we cannot say that the district court abused its discretion by not
addressing each of the Barber factors, and we affirm the district
court's determination that the fees awarded were"reasonable" under
42 U.S.C.A. § 1988.18

2.

Although we conclude that the district court properly found that
Plaintiffs were entitled to fees for the work performed relating to the
December motion and that the fee affidavits submitted were not
unreasonable under 42 U.S.C.A. § 1988, the district court erred when
it found that the PLRA's attorney's fees limitations were inapplicable
to this case. The PLRA requires Plaintiffs to prove that the fees
requested were "directly and reasonably incurred in proving an actual
violation of the plaintiff[s'] right[s or] in enforcing the relief ordered
for the violation." § 803(d)(codified at 42 U.S.C.A. § 1997e(d)(1)).
This Court, of course, expresses no opinion as to whether Plaintiffs
have met the above requirements. However, if upon reconsideration,
the district court determines that Plaintiffs have satisfied the criteria
set forth in § 1997e(d)(1) for entitlement to attorney's fees, we
instruct the district court to recompute its fee award in light of the
hourly cap imposed by § 803(d). Again, we express no opinion as to
whether Plaintiffs' counsel should be compensated at the maximum
rate allowable or a reduced rate. These determinations are left to the
discretion of the district court.
_________________________________________________________________

18 In concluding that the district court carefully considered all the perti-
nent factors when determining the reasonableness of the fees awarded
pursuant to 42 U.S.C.A. § 1988, we further rely on our affirmance of an
earlier district court order awarding attorney's fees in this case. In
Alexander S. ex rel. Bowers v. Boyd, 89 F.3d 827 (4th Cir. 1996) (unpub-
lished), we rejected the State's same argument that the district court
failed to adequately address all the Barber factors and affirmed the
award which was based, in part, on the same general attorney back-
ground information and billing rates relied upon by the district court in
these appealed orders.

33
IV.

In conclusion, we reverse the district court's holding that the attor-
ney's fees limitations set forth in § 803(d) of the PLRA (codified at
42 U.S.C.A. § 1997e(d)) are limited to prisoners confined to adult
facilities. Rather, we conclude that § 803(d)'s attorney's fee limita-
tions apply to any action brought by an incarcerated juvenile chal-
lenging the constitutionality of his conditions of confinement pursuant
to 42 U.S.C.A. § 1983 or any other Federal law in which the attor-
ney's fee is awarded subsequent to the enactment of the PLRA. We
find no evidence in the express language of the PLRA or its legisla-
tive history to indicate that Congress intended to exclude juveniles
confined in juvenile facilities from the far-reaching effects of the
PLRA. To the contrary, an examination of the entire Act reveals a
concerted effort to include juveniles within the scope of the PLRA.

We affirm the district court's conclusion that Plaintiffs are eligible
for attorney's fees under 42 U.S.C.A. § 1988. However, we remand
the appealed orders and direct the district court to apply the attorney's
fees limitations of the PLRA when determining the amount of, and
Plaintiffs' entitlement to, attorney's fees.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

DIANA GRIBBON MOTZ, Circuit Judge, Concurring in Parts, I., II.,
III.A. and C., IV., and in the judgment:

Section III.B. of Judge Williams' opinion applies the Supreme
Court's Landgraf analysis to determine whether 42 U.S.C.A.
§ 1977e(d)(3) (West Supp. 1997) has a "retroactive effect." I write
separately to state why I believe that application of § 1997e(d)(3) to
the fees at issue here presents no retroactivity question.

Section 1997e(d)(3) provides that attorney's fees under 42 U.S.C.
§ 1988 "shall not be awarded, except to the extent that" the hourly
rate is capped at "150 percent of the hourly rate established under sec-
tion 3006A of Title 18." (emphasis added). The plain language of the
statute directs that it applies when a court makes its award, not when
an attorney completes his work, or totals his time, or submits his fee

34
request, but when a court awards fees. Therefore, the only "retroactiv-
ity" question involving § 1997e(d)(3) is whether it applies to fees
awarded before its enactment. Because the fees at issue here were
awarded on May 29, 1996, a month after the effective date of the stat-
ute (April 26, 1996) this case presents no retroactivity question.

I cannot accept Judge Murnaghan's suggestion that the district
court awarded fees on February 16, 1996. The district court's Febru-
ary 16 order declared plaintiffs entitled to fees; it awarded them noth-
ing. Even after a victory on the merits or a declaration of entitlement
to fees an attorney has no right to a specific fee under § 1988 until
the actual fees are awarded. A district court must apply a twelve fac-
tor test, and can always grant an attorney less than he requests. In
short, because § 1997e(d)(3) only affects the rate at which attorneys
are compensated it has no "retroactive effect" on their entitlement to
some fees -- it does not "impair rights a party possessed when he
acted." Landgraf v. USI Film Prods., 511 U.S. 244, 114 S.Ct. 1483,
1505 (1994).* For this reason, the Landgraf analysis, which bedevils
my colleagues, is unnecessary here.

I note that, if Landgraf did apply, its initial step would resolve this
case. That step requires determination of whether "Congress has
expressly prescribed the statute's proper reach." Id. at 280. If so,
"there is no need to resort to judicial default rules." Id. By expressly
stating that § 1997e(d)(3) applies to an "award" of fees Congress
clearly evidenced its intent to affect a fee "award" regardless of when
legal work was completed. To hold otherwise would require us to add
the following clause to § 1997e(d)(3): "such fees shall not be awarded
[for work completed after the passage of this Act]."
_________________________________________________________________

* I recognize that Jensen v. Clarke, 94 F.3d 1191 (8th Cir. 1996), and
Cooper v. Casey, 97 F.3d 914, 921 (7th Cir. 1996), found that it would
be "`manifestly unjust' to upset [an attorney's] reasonable expectations
and impose new guidelines at this late date." Jensen, 94 F.3d at 1203; see
also Cooper, 97 F.3d at 921. But regardless of the statute's "fairness" it
only changes the rate of renumeration, it does not strip an attorney of any
previously established right to a specific award of attorney's fees,
because there is no such right until the court awards the fees.

35
MURNAGHAN, Circuit Judge dissenting:

Because I would follow the Seventh and Eighth Circuits and find
that the attorney's fee provision in 42 U.S.C.A. § 1997e does not
apply retroactively, I dissent as to part III.B.2.

Section 803(d) of the PLRA provides that in cases such as the case
at bar, "[n]o award of attorney's fees" shall be awarded greater than
150% of the local hourly rate for court-appointed counsel.1 Since the
PLRA was passed on April 26, 1996, the Court must determine
whether the fee-limiting provisions in the PLRA apply retroactively
to work done before the passage of the act.

In Landgraf v. USI Film Products, 114 S. Ct. 1483 (1994), the
Court set out the procedures for determining whether a statute should
apply retroactively. First, the court should determine whether "Con-
gress has expressly prescribed the statute's proper reach." Id. at 1505.
If Congress has not done so, "the court must determine whether the
new statute would have retroactive effect, i.e., whether it would
impair rights a party possessed when he acted, increase a party's lia-
bility for past conduct, or impose new duties with respect to transac-
tions already completed." Id. If the statute has language indicating
possible retroactive effect, the presumption against retroactivity pre-
vails unless there is "clear congressional intent favoring such a
result." Id. If the statute does not indicate retroactive effect, then the
court should "apply the law in effect at the time it renders its decision,
unless doing so would result in manifest injustice." Bradley v. School
Board of Richmond, 416 U.S. 696, 711 (1974).

Nothing in the section 803(d) "expressly prescribed [its] proper
reach." (emphasis added). The Majority argues that the language "no
award of attorney's fees" expressly prescribes the statute's reach in
that it indicates that the statute applies when fees are awarded. How-
ever, such language certainly does not "expressly" indicate that the
_________________________________________________________________

1 As the majority points out, plaintiffs do not dispute that the rate under
the PLRA is $112.50. Although the state does not concede that plaintiff's
counsel's hourly rate should be set at $112.50, the district court specifi-
cally stated that if the PLRA applied it would set counsel's fees at the
maximum amount.

36
Congress intended § 803(d) to apply retroactively. See also Leland v.
Federal Ins. Adm'r, 934 F.2d 524, 528 (4th Cir. 1991) ("[E]ven where
some substantial justification for retroactivity is presented, courts
should be reluctant to find such authority absent an express statutory
grant.")

In fact, there is evidence that Congress intended that § 803(d)
should apply prospectively. Section 802 of the PLRA specifically pro-
vides that § 802 applies to relief "granted or approved before, on, or
after the date of enactment of this title." Section 803, however, is
silent in that regard. Although the fact that Congress expressly indi-
cated that § 802 applies retroactively and did not do so for § 803 may
not "expressly" indicate that the Congress intended § 803(d) to apply
retroactively, it does, however, indicate that when Congress chooses
to expressly indicate that a provision is retroactive it can clearly do
so.

Secondly, a plain reading of the statutory language in the instant
case does not weigh in favor of retroactivity. Based on the Majority's
argument, the statute applies on the date attorney's fees were
awarded. Thus, if attorney's fees are awarded after the date of the
PLRA, the PLRA applies even if the work was done prior to the
enactment of the PLRA. It concludes that attorney's fees were
awarded after the date of passage of the PLRA and therefore the
PLRA applies. However, under the facts in the instant case, attorney's
fees were awarded well before the passage of the PLRA.2

As the Majority concedes, the Appellees were awarded fees for
monitoring activities. In its February 16th order, the district court set
up specific instructions regarding how the fees would be paid. More-
over, there was no question that the February 16th order granted attor-
ney's fees to the parties for monitoring activities, the only questions
were at what rate and for how many hours. Therefore, the "award" of
_________________________________________________________________

2 The fees were not "ordered" until after the passage of the PLRA. In
addition, the court's August 30, 1996 order referenced and incorporated
the previous order. The specific fee amount in the August 30th order
dated back to the February 16th award and amounted to a nunc pro tunc
award. The fact that the specific fee calculation was made after the award
does not mean that the award itself was not made on an earlier date.

37
attorney's fees occurred on February 16, 1996 when the court set out
its instructions regarding how further fees would be paid. These fees
were not "ordered" until after the passage of the PLRA, but they were
"awarded."3

Even if this reading of the statute is inaccurate, it certainly indi-
cates that the statement "award of attorney's fees" is insufficient to
establish that Congress clearly proscribed the reach of the statute.
Since Congress did not expressly prescribe the reach of § 803, the
Court must determine whether the statute would have retroactive
effect. Landgraf, 114 S. Ct. at 1505.

In the instant case, plaintiffs' attorneys had a legitimate expectation
that they would receive payment for services rendered. The district
court awarded such payment in its February 16 order. The court
clearly set out procedures, which, if followed by the plaintiffs' attor-
neys, would entitle plaintiffs' attorneys to receive compensation at the
prevailing rate. Plaintiffs' attorneys continued their monitoring activi-
ties based on such an understanding. Thus, the statute would certainly
have retroactive effect.

The Seventh and Eighth Circuits have reached similar results. In
Jensen v. Clarke, 94 F.3d 1191, 1202 (8th Cir. 1996), the court deter-
mined that applying 803(d) retroactively would "have the retroactive
effect of disappointing reasonable reliance on prior law." In addition,
the court further stated that "when the attorneys were exerting what
the District Court quite fairly described as herculean efforts on [plain-
tiffs'] behalf, they expected to have their fee determined under Sec-
tion 1988. If we apply the Act, those expectations will be foiled." Id.
at 1202 (internal quotations omitted); see also Cooper v. Casey, 97
F.3d 914, 921 (7th Cir. 1996) (to apply the statute retroactively would
"attach (without clear indication of congressional intent to do so) new
legal consequences to completed conduct, mainly the services ren-
dered by the plaintiffs' counsel in advance of the passage of the new
Act."). I agree with the Seventh and Eighth Circuits and believe that
applying the Act retroactively would have retroactive effect.
_________________________________________________________________

3 In its February 16, 1996 order, the district court stated: "The court fur-
ther finds that plaintiffs are entitled to fees . . . related to monitoring
activities." J.A. at 31. In my view, this is an award of attorney's fees.

38
The Majority argues, based on Bradley, 416 U.S. at 696, that
changes regarding fee determinations do not have retroactive effect.
In Bradley, the Supreme Court determined that a statute allowing
courts to award fees to prevailing parties in school desegregation
cases could be applied retroactively. Id. at 723-724. However, the
Court based this decision on the fact that applying the statute retroac-
tively would not have changed the liabilities of the parties or the par-
ties' expectations. Id. at 721. The Court determined that since the
district court had already awarded fees based on common law princi-
ples, applying the fee determination retroactively did not upset the
parties' expectations and did not create an "unforeseeable obligation."
Id.

However, in the case at bar, the parties' expectations, pursuant to
the February order, were that they would be paid the prevailing rate
for attorney's fees. Since the parties had previously been awarded
fees, the rate for such fees was already set by the court. The district
court's order recognized this and did not require plaintiff's attorneys
to refile affidavits regarding fees. Therefore, unlike in Bradley, the
attorneys in the instant case had an expectation that they would be
paid. Reducing these fees would place an "unforeseeable obligation"
on plaintiff's attorneys because, after services had been provided,
they would be required to provide those services at a reduced rate.

Since Congress did not expressly provide that § 803(d) applied
retroactively and since applying the statute retroactively would have
retroactive effect, the traditional presumption against retroactivity
should apply. However, even if the statute does not have retroactive
effect, the statute should not be applied retroactively because doing
so would result in "manifest injustice." Id. at 711.

In Bradley, the Court held that "a court is to apply the law in effect
at the time it renders its decision, unless doing so would result in
`manifest injustice' or there is statutory direction or legislative history
to the contrary." Id. Applying this statute retroactively would clearly
result in "manifest injustice."

The parties in the instant case have been embroiled in litigation for
several years. Plaintiffs have sought and been awarded fees on several
occasions. In addition, plaintiffs' attorneys were involved in contin-

39
ued monitoring activities. Holding § 803(d) retroactive and applying
a reduced rate for attorney's fees for work already done will certainly
create a manifest injustice on the parties. See Jensen, 94 F.3d at 1203
("It would be `manifestly unjust' to upset those reasonable expecta-
tions and impose new guidelines at this late date."); Weaver v. Clarke,
933 F. Supp. 831, 835 (D. Neb. 1996) ("[R]etroactive imposition of
the section of the PLRA . . . would cause `manifest injustice' to law-
yers like Plaintiff's counsel who have performed their ethical obliga-
tions to the courts upon settled expectations premised upon precedent
that if they `prevailed' they would be compensated.")

Moreover, Bradley also held that a statute should not be applied
retroactively if "there is statutory direction or legislative history to the
contrary." Bradley, 416 U.S. at 711. Although there is no language
which "expressly" applies the statute retroactively or prospectively,
there is evidence that Congress did not intend for § 803(d) to apply
retroactively. When Congress passed the PLRA it expressly made
§ 802 applicable to relief granted before the passage of the Act.
§ 802(b)(1). However, § 803(b) is silent as to its application. Since
Congress saw fit to clarify that § 802(b) applied retroactively, it can
be inferred that the exclusion of such clarifying language in § 803
indicates that Congress did not intend § 803 to apply retroactively.4
See Jensen, 94 F.3d at 1203.

Since I believe that § 803(d) does not apply to work completed
before the passage of the PLRA, and because I believe it is manifestly
unjust to apply § 803(d) retroactively in the instant case, I dissent as
to part III.B.2.
_________________________________________________________________

4 I concede that this does not express clear intent; however, it does indi-
cate that there is "statutory or legislative history to the contrary" regard-
ing retroactivity. Bradley, 416 U.S. at 711.

Furthermore, the Majority indicates that one of the major purposes of
the Act was to stem frivolous law suits. Applying the statute retroactively
in no way furthers this goal. In fact, in the instant case, it is clear that
the lawsuit was not frivolous in that plaintiffs were determined to be the
prevailing parties. Obviously their suit could not have been frivolous if
they prevailed in their action.

40