Joshua Kelly v. Timothy Wengler

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JOSHUA KELLY; JOSE PINA; Nos. 13-35972
ANDREW IBARRA; RAY BARRIOS; 14-35199
RANDY ENZMINGER; MICHAEL
MIERA; PRISONER A; PRISONER F, D.C. Nos.
Individually and on behalf of a 1:11-cv-00185-EJL
class of all other persons similarly
situated,
Plaintiffs-Appellees, OPINION

v.

TIMOTHY WENGLER;
CORRECTIONS CORPORATION OF
AMERICA, INC.,
Defendants-Appellants.

Appeal from the United States District Court
for the District of Idaho
David O. Carter, District Judge, Presiding

Argued and Submitted October 13, 2015
Seattle, Washington

Filed May 23, 2016
2 KELLY V. WENGLER

Before: William A. Fletcher and Raymond C. Fisher,
Circuit Judges, and Claudia Wilken,* Senior District Judge.

Opinion by Judge W. Fletcher

SUMMARY**

Prisoner Civil Rights

The panel affirmed the district court’s contempt order and
its order awarding plaintiffs attorney’s fees, which the district
court entered after finding that defendants in the underlying
putative class action, Timothy Wengler and the Corrections
Corporation of America, Inc., had violated a settlement
agreement.

In the underlying § 1983 action, plaintiffs alleged that
defendants staffed the Idaho Corrections Center with an
inadequate number of security guards, in deliberate
indifference to the health and safety of prisoners. The parties
settled, and defendants agreed to staff Idaho Corrections
Center with a specified number of security personnel. After
learning that staffing reports at Idaho Corrections Center had
been falsified over a seven-month post-settlement period,

*
The Honorable Claudia Wilken, Senior District Judge for the U.S.
District Court for the Northern District of California, sitting by
designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 KELLY V. WENGLER 3

plaintiffs moved the district court to hold defendants in
contempt.

The panel held that defendants’ non-compliance with the
settlement agreement justified a finding of contempt. The
panel held that defendants failed to take all reasonable steps
that would have allowed it to discover that records had been
falsified.

The panel held that the district court’s ordered remedy –
the extension of the settlement agreement for two years –
was a compensatory civil sanction that returned plaintiffs to
the position they would have occupied had defendants not
violated the agreement from its inception. The modification
of the settlement agreement was well within the court’s
inherent power and was narrowly drawn, necessary, and the
least intrusive means to rectify defendants’ continued Eighth
Amendment violations.

Affirming the award of attorney’s fees, the panel held that
the Prison Litigation Reform Act allows enhancement of the
lodestar figure in appropriate circumstances. While the Act
limits the hours and the hourly rate used in calculating the
lodestar figure, it does not cap the total amount of attorney’s
fees awards in cases seeking declaratory and injunctive relief,
and it continues to authorize a court to enhance the lodestar
figure based on non-subsumed factors. The panel concluded
that in this case the district court provided clear reasons,
supported by specific evidence in the record, for enhancing
the lodestar figure.
4 KELLY V. WENGLER

COUNSEL

Nicholas D. Acedo (argued), Daniel P. Struck, Tara B.
Zoellner, Struck Wienecke & Love, P.L.C., Chandler,
Arizona, for Defendants-Appellants.

Stephen L. Pevar (argued), American Civil Liberties Union
Foundation, Hartford, Connecticut; Richard Alan Eppink,
American Civil Liberties Union of Idaho Foundation, Boise,
Idaho, for Plaintiffs-Appellees.

OPINION

W. FLETCHER, Circuit Judge:

Plaintiffs-Appellees (“Plaintiffs”) brought a putative class
action in the District of Idaho under 42 U.S.C. § 1983 against
Defendants-Appellants Timothy Wengler and the Corrections
Corporation of America, Inc. (collectively “CCA”), alleging
that CCA staffed the Idaho Corrections Center (“ICC”) with
an inadequate number of security guards, in deliberate
indifference to the health and safety of prisoners. The parties
settled, and CCA agreed to staff ICC with a specified number
of security personnel. The district court dismissed the case
with prejudice, incorporating the parties’ settlement
agreement into its dismissal order.

After learning that staffing reports at ICC had been
falsified over a seven-month post-settlement period, Plaintiffs
moved the district court to hold CCA in contempt for
violating the dismissal order. After a two-day hearing, the
district court found CCA in contempt, ordered remedial
measures, and awarded Plaintiffs attorney’s fees and costs.
 KELLY V. WENGLER 5

CCA challenges various aspects of the district court’s orders,
including the award of attorney’s fees. We affirm.

I. Background

A. Initial Suit and Settlement

ICC is a state-owned prison in Kuna, Idaho. When this
suit was filed in April 2011, CCA operated ICC under a
contract with the Idaho Department of Corrections (“IDOC”).
Plaintiffs’ complaint alleged CCA failed to hire an adequate
number of security guards and, as a result, ICC staff failed to
protect inmates from assault by other inmates. The complaint
alleged CCA was deliberately indifferent to the safety and
health of ICC inmates in violation of the Eighth Amendment.
Plaintiffs requested declaratory relief and an injunction
ordering, inter alia, that CCA hire an adequate number of
security personnel.

In September 2011, the parties met with a judicial
mediator, District Judge David O. Carter of the Central
District of California. They reached a settlement after three
days of negotiation. In a signed settlement agreement, CCA
agreed to comply with the staffing requirements contained in
its contract with IDOC. CCA also agreed to provide three
additional officers, known as the “Warden’s Crew,” whom
the warden could use in his discretion to enhance security.
The parties signed a stipulation for dismissal. The stipulation
incorporated the settlement agreement, which was attached as
an exhibit to the stipulation. District Judge Edward J. Lodge
of the District of Idaho signed an order on September 20,
2011, dismissing the case with prejudice. His order explicitly
incorporated the parties’ stipulation.
6 KELLY V. WENGLER

B. Order to Show Cause

Between December 2012 and January 2013, CCA and
IDOC received reports that staffing records at ICC had been
falsified during the post-settlement period. IDOC initiated an
audit of ICC’s staffing records, and CCA hired an
investigator. On April 11, 2013, IDOC issued a press release,
stating that CCA’s employees had falsified staffing records to
represent that correctional officers were staffing mandatory
security posts when, in fact, those posts had been vacant for
a total of nearly 4,800 hours during a seven-month period in
2012. That same day, CCA issued its own press release
stating there were “some inaccuracies” in its staffing records.

In June 2013, Plaintiffs moved in the district court for an
order to show cause (“OSC”) why CCA should not be held in
contempt for violating the court’s dismissal order. The
district court referred the motion to Judge Carter, sitting by
special designation in the District of Idaho. CCA opposed the
motion, partly on the ground that the district court did not
have jurisdiction to enforce the settlement agreement. The
district court held it had jurisdiction to enforce the settlement
agreement and issued the requested OSC.

C. Contempt Order

After a two-day hearing, the district court entered an order
on September 16, 2013, holding CCA in contempt and
ordering remedial measures. The order was entered almost
exactly two years after the entry of the order dismissing the
suit and incorporating the settlement agreement.

The district court found CCA had materially breached the
settlement agreement and, indeed, that there was “serious
 KELLY V. WENGLER 7

doubt” whether CCA had ever substantially complied with it.
The court relied in part on CCA’s own investigative report,
which indicated that from April to October 2012
approximately 4,800 mandatory post hours had been left
vacant. The reported 4,800-hour figure included only night-
shift hours during that seven-month period. In addition,
evidence presented at the hearing showed vacancies had
occurred during day-shifts over the period covered by the
report, and additional vacancies had occurred after that
period. For example, with respect to vacancies during the
period covered by the report, ICC Warden (and Defendant)
Timothy Wengler testified that CCA’s investigation revealed
roughly 150 vacant day-shift hours in May 2012 and 300
vacant day-shift hours in June 2012. IDOC official Timothy
Higgins testified that IDOC had received reports from
inmates at ICC that “the only time there was . . . full staffing
was when our monitors were there.” Higgins testified, with
respect to vacancies after the period covered by the report,
that daily staffing reports showed vacant mandatory post
hours at ICC for June and July 2013 ranged from 18 to 41
hours per day.

The district court found further that CCA had “compelling
reasons to regularly and thoroughly check that” it was in
compliance, and that it knew or should have known it was in
material breach of the settlement agreement. Before the
parties executed the settlement agreement, multiple sources
had informed the warden and assistant wardens at ICC that
the facility was experiencing acute staffing shortages, and
indications of ICC’s staffing difficulties continued even after
the parties entered into the settlement agreement. According
to CCA’s internal investigative report, members of ICC’s
senior management were aware of acute personnel shortages
in the post-settlement period, during the spring, summer, and
8 KELLY V. WENGLER

fall of 2012. The report was corroborated by several
witnesses who testified they informed CCA officials,
including Warden Wengler, about staffing shortages.

Finally, the district court found CCA had not taken all
reasonable steps to comply with the settlement agreement.
For example, Higgins testified that CCA’s reports of shift
rosters indicated whether a post was covered by two or more
employees but did not indicate the hours worked by each
employee. This manner of reporting made it difficult to
determine whether an employee was reported as having been
simultaneously posted at more than one post (“double
posted”). Warden Wengler, Assistant Warden Thomas
Kessler, and Managing Director Kevin Myers testified that
they neither checked for vacancies nor reviewed staffing
records to ensure that the prison was fully staffed.

CCA eventually took a number of steps to ensure
compliance with the settlement agreement, but it did so only
after there had been an investigation into its staffing and
recordkeeping. After the investigation, CCA implemented a
“corrective action plan” including hiring more guards,
maintaining more detailed staffing records, comparing
staffing rosters with actual staffing, maintaining open lines of
communication about potential staffing difficulties, and
reviewing incidents resulting in vacancies. The district court
found CCA should have taken these measures before the
investigation.

The district court ordered several remedial measures. The
settlement agreement was supposed to last for only two years,
but the court extended it for another two years. The court
appointed an independent monitor, to be paid by CCA.
Finally, the court established a fine schedule. Under the
 KELLY V. WENGLER 9

schedule, CCA would be required to pay $100 for each hour
that a mandatory post was left vacant in excess of twelve
hours in any calendar month. The court indicated it would
increase the amount of the fines, if $100 per hour proved
insufficient to compel compliance. In the end, the court never
imposed fines for noncompliance. The court declined to
impose several remedies requested by Plaintiffs, including
ordering CCA to discipline more of its staff, conducting an
audit to determine the total number of vacant hours since the
execution of the settlement agreement, and requiring the
submission of reports to the district court.

D. Attorney’s Fees

Plaintiffs’ counsel, American Civil Liberties Union
(“ACLU”) attorneys Stephen Pevar and Ritchie Eppink,
requested attorney’s fees and costs associated with the
contempt proceedings. Pevar sought compensation for 533.9
hours, and Eppink sought compensation for 253.2 hours.
They also sought compensation for 174.1 hours of work
performed by legal assistants, as well as $16,598.13 in costs.
Plaintiffs’ counsel based their attorney’s fees request on an
hourly rate of $213 per hour, which, at the time of the
contempt proceedings, was 150 percent of the hourly rate set
for counsel appointed in criminal cases, the maximum base
rate allowed in cases governed by the Prison Litigation
Reform Act (“PLRA”). They based their request for
paralegal and student-intern fees on an hourly rate of $65 per
hour. The court did not award fees for some of the hours
Plaintiffs’ counsel claimed because several time entries were
vague, but otherwise determined Plaintiffs’ requested hours,
rates, and costs were reasonable.
10 KELLY V. WENGLER

Plaintiffs’ counsel also requested a 2.0 multiplier of their
fees. The court agreed to enhance the fee award, though not
by the full amount requested. The court gave two reasons for
the enhancement. First, Plaintiffs’ counsel provided superior
performance under extreme time pressure and with very
limited resources. Second, prisoners in Idaho have such
difficulty obtaining counsel for civil rights cases seeking
declaratory and injunctive relief that Plaintiffs’ counsel were
likely the only attorneys willing to accept Plaintiffs’ case.

Based on evidence of the hourly rates of Idaho attorneys
with similar experience, the district court applied a 2.0
multiplier to the fees associated with Pevar’s work and a 1.3
multiplier to the fees associated with Eppink’s work, on the
ground that these fees would compensate Plaintiffs’ counsel
for their superior performance and would be sufficient to
induce competent Idaho attorneys to accept appointment in
meritorious prisoner civil rights cases seeking declaratory and
injunctive relief. In total, the court awarded $349,018.52 in
attorney’s fees and costs.

Pursuant to 28 U.S.C. § 1291, CCA timely appealed the
district court’s orders finding the court had subject matter
jurisdiction to enforce the settlement agreement, finding CCA
in contempt, and awarding attorney’s fees and costs. See
Stone v. City & Cnty. of San Francisco, 968 F.2d 850, 854
(9th Cir. 1992) (holding that post-judgment contempt orders
imposing sanctions are final for purposes of § 1291).

II. Standards of Review

We review de novo whether a district court has subject
matter jurisdiction to enforce a settlement agreement,
Kirkland v. Legion Ins. Co., 343 F.3d 1135, 1140 (9th Cir.
 KELLY V. WENGLER 11

2003), a district court’s interpretation of federal statutes, San
Luis & Delta Mendota Water Auth. v. United States, 672 F.3d
676, 699 (9th Cir. 2012), and its interpretation of a settlement
agreement, City of Emeryville v. Robinson, 621 F.3d 1251,
1261 (9th Cir. 2010). We review for abuse of discretion a
district court’s civil contempt order, FTC v. EDebitPay, LLC,
695 F.3d 938, 943 (9th Cir. 2012), and its award of attorney’s
fees, Bouman v. Block, 940 F.2d 1211, 1235 (9th Cir. 1991).
We review the district court’s factual findings in connection
with a contempt order for clear error. EDebitPay, 695 F.3d
at 943.

III. Discussion

A. Subject Matter Jurisdiction

The district court dismissed Plaintiffs’ suit with prejudice
after the parties reached a settlement. CCA contends the
district court did not have subject matter jurisdiction to
enforce the settlement agreement because the court’s
jurisdiction terminated when it dismissed the case. In other
words, CCA maintains the parties’ agreement is not
enforceable in federal court. We disagree. The district court
had federal question jurisdiction over Plaintiffs’ suit under
28 U.S.C. § 1331; the settlement agreement was incorporated
into the court’s dismissal order; and the district court
therefore had ancillary jurisdiction to enforce the settlement
agreement.

Federal courts are courts of limited subject matter
jurisdiction. A party alleging subject matter jurisdiction has
the burden of establishing it. Kokkonen v. Guardian Life Ins.
Co. of Am., 511 U.S. 375, 377 (1994). When a district court
dismisses an action with prejudice pursuant to a settlement
12 KELLY V. WENGLER

agreement, federal jurisdiction usually ends. O’Connor v.
Colvin, 70 F.3d 530, 532 (9th Cir. 1995). Ordinarily, a
dispute arising under a settlement agreement is “a separate
contract dispute requiring its own independent basis for
jurisdiction.” Id.

However, federal district courts have ancillary jurisdiction
over certain matters “otherwise beyond their competence”
that are “incidental to other matters properly before them.”
Kokkonen, 511 U.S. at 378. A federal court has jurisdiction
to “manage its proceedings, vindicate its authority, and
effectuate its decrees.” Id. at 380. When a court’s order
dismissing a case with prejudice incorporates the terms of a
settlement agreement, the court retains ancillary jurisdiction
to enforce the agreement because a breach of the incorporated
agreement is a violation of the dismissal order. Id. at 381.

CCA contends the district court did not have subject
matter jurisdiction to enforce the settlement agreement in this
case because the court’s dismissal order did not incorporate
the terms of the settlement agreement. CCA is wrong as a
matter of law. Under federal law, a document incorporated
into a dismissal order is part of the order. See Saint John’s
Organic Farm v. Gem Cnty. Mosquito Abatement Dist.,
574 F.3d 1054, 1059 (9th Cir. 2009). The district court’s
order explicitly incorporated the parties’ stipulation for
dismissal. The stipulation is therefore part of the dismissal
order.

Stipulations for dismissal are construed according to the
“basic contract principles” of local law. Jeff D. v. Andrus,
899 F.2d 753, 759 (9th Cir. 1989). Here, we apply Idaho
contract law, because the parties entered into the stipulation
in Idaho, Plaintiffs are Idaho residents, and the stipulation
 KELLY V. WENGLER 13

relates to CCA’s business in Idaho. Under Idaho law,
incorporation of a document into a contract makes the
document part of the contract. City of Meridian v. Petra Inc.,
299 P.3d 232, 242 (Idaho 2013). The stipulation for
dismissal explicitly incorporated the parties’ settlement
agreement and attached the agreement as an exhibit, thereby
making the settlement agreement part of the stipulation.
Thus, the parties’ settlement agreement is incorporated into
the court’s dismissal order, and by violating the settlement
agreement, CCA violated the order.

The district court dismissed this case under Federal Rule
of Civil Procedure 41(a)(1)(A)(ii), which provides that an
action may be dismissed when the plaintiff files “a stipulation
of dismissal signed by all parties who have appeared.” The
Supreme Court has held that a district court that dismisses a
case under this rule may “embody the settlement contract in
its dismissal order . . . if the parties agree.” Kokkonen,
511 U.S. at 381–82 (emphasis added). Here, the parties
agreed the district court would retain ancillary jurisdiction to
enforce the agreement. Paragraph 15 of the agreement
establishes a three-step procedure for resolving disputes.
Under this procedure, the parties must first attempt to resolve
the dispute themselves. If they are unable to do so, they must
then attempt to resolve the dispute with the Alternative
Dispute Resolution Coordinator for the District of Idaho. If
that attempt fails, the parties may “submit the dispute to the
Honorable David O. Carter, who shall have authority to
enforce the terms of this agreement in his capacity as a
Federal District Court Judge.” (Emphasis added.) Paragraph
15 thus provides that the district court shall have authority to
enforce the agreement once the parties have taken a dispute
through the first two steps of the dispute-resolution process.
14 KELLY V. WENGLER

Paragraph 1 of the agreement supports this interpretation
of Paragraph 15. Paragraph 1 provides that the agreement
will “extend no further than necessary to satisfy the
requirements of 18 U.S.C. § 3626(a)(1)(A).” Under this
provision of the PLRA, a federal district court may not order
“prospective relief” unless it finds the relief is “narrowly
drawn, extends no further than necessary to correct the
violation of the Federal right, and is the least intrusive means
necessary to correct the violation of the Federal right.”
18 U.S.C. § 3626(a)(1)(A); id. § 3626(g)(7) (defining
“prospective relief”). These limitations on “prospective
relief” do not apply to private settlement agreements. Id.
§ 3626(c)(2). Paragraph 1’s reference to § 3626(a)(1)(A) thus
evinces the parties’ intention to make the settlement
agreement enforceable in federal court. We therefore
conclude the district court had ancillary jurisdiction to
enforce the settlement agreement, the terms of which were
incorporated into the district court’s dismissal order. For
convenience, we hereafter refer only to the settlement
agreement, with the caveat that the court’s jurisdiction was
based on CCA’s violation of the dismissal order incorporating
the agreement’s terms.

B. Finding of Contempt and Ordering of Remedies

The district court found by clear and convincing evidence
that CCA was in civil contempt because it violated the
settlement agreement and had failed to take all reasonable
steps to comply. It is not seriously disputed that CCA was in
substantial violation of the settlement agreement. The only
serious disputes concern whether CCA’s non-compliance
justified a finding of contempt and whether the remedies
ordered were appropriate. Because CCA has ceased
providing staffing for ICC, the contempt and remedies
 KELLY V. WENGLER 15

ordered by the district court are no longer relevant to CCA’s
operation of ICC. However, they remain relevant for
purposes of CCA’s appeal because the attorney’s fees award
depends on the correctness of the court’s conclusion that
CCA was in contempt and on the appropriateness of the
remedies ordered.

1. All Reasonable Steps

CCA first contends the district court’s contempt finding
was an abuse of discretion because CCA implemented a
number of corrective measures immediately after discovering
that it was not in compliance with the settlement agreement.
CCA’s argument is based on a misunderstanding of well
established law.

A contemnor in violation of a court order may avoid a
finding of civil contempt only by showing it took all
reasonable steps to comply with the order. See Inst. of
Cetacean Research v. Sea Shepherd Conservation Soc’y,
774 F.3d 935, 945 (9th Cir. 2014). CCA emphasizes the steps
it took to comply with the settlement agreement, but fails to
mention other reasonable steps it could have taken. For
example, after the parties signed the settlement agreement,
CCA increased the number of budgeted security staff
positions at ICC. CCA failed, however, actually to fill a
substantial number of those budgeted positions. Further,
although Warden Wengler convened meetings to review
staffing requirements, in some of those meetings he was
informed that ICC was experiencing acute staffing
difficulties. Yet CCA failed to address those difficulties.
Finally, CCA contends its senior management may not have
known that ICC staff members were falsifying staffing
rosters. CCA failed, however, to take all reasonable steps
16 KELLY V. WENGLER

that would have allowed it to discover that records had been
falsified.

Citing our decision in Vertex Distributing, Inc. v. Falcon
Foam Plastics, Inc., 689 F.2d 885 (9th Cir. 1982), CCA
contends it should not have been found in contempt because
it took immediate corrective action after learning of the
inaccurate staffing reports. The facts in Vertex, however, are
far afield from the facts here. In Vertex, the plaintiff
requested the court find the defendant in contempt for
violating a consent judgment that prohibited the defendant
from using a particular trade name for publicity purposes.
689 F.2d at 887–88. Although the plaintiff proved the
defendant was listed under that name in a local yellow pages
directory, in violation of the judgment, we upheld the district
court’s decision not to find the defendant in contempt because
the defendant had otherwise complied with the consent
judgment and had taken steps to remove the trade name from
its yellow pages listing as soon as it discovered the listing.
Id. at 891–92.

Here, by contrast, the district court found CCA had not
substantially complied with the settlement agreement and had
failed to take several reasonable steps to ensure compliance.
Moreover, the court found CCA’s “corrective action plan”
was itself inadequate. Indeed, just one month before the
contempt proceedings began, mandatory posts at ICC were
still left vacant between 18 and 41 hours per day.

2. Nature of the Sanctions

CCA objects to two of the ordered remedies — the
extension of the settlement agreement and the prospective
fine schedule — on the ground that they are criminal
 KELLY V. WENGLER 17

sanctions and that the district court did not follow procedures
that would have allowed it to hold CCA in criminal contempt.

Unlike civil contempt, criminal contempt requires the
procedural safeguards applicable in criminal proceedings,
including proof beyond a reasonable doubt. F.J. Hanshaw
Enters., Inc. v. Emerald River Dev., Inc., 244 F.3d 1128, 1139
(9th Cir. 2001). It is undisputed that when the district court
found CCA in contempt the court did not provide all of the
procedural protections required in criminal proceedings.
Thus, if the district court’s contempt finding and the
associated remedies were criminal in nature, the finding and
remedies were improper and would have to be reversed.

Whether contempt is civil or criminal turns on the nature
of the sanction or sanctions involved. Int’l Union, United
Mine Workers v. Bagwell (Bagwell), 512 U.S. 821, 827–28
(1994). “[A] sanction generally is civil if it coerces
compliance with a court order or is a remedial sanction meant
to compensate the complainant for actual losses. A criminal
sanction, in contrast, generally seeks to punish a ‘completed
act of disobedience.’” Ahearn ex rel. N.L.R.B. v. Int’l
Longshore & Warehouse Union, Locals 21 & 4, 721 F.3d
1122, 1129 (9th Cir. 2013) (quoting Bagwell, 512 U.S. at
828).

We conclude the extension of the settlement agreement is
a compensatory civil sanction. Rather than punishing CCA,
this sanction sought to return Plaintiffs as nearly as possible
to the position they would have occupied had CCA not
violated the agreement. The settlement agreement required
CCA to provide a certain number of security personnel at ICC
for two years. CCA failed to provide the required number of
personnel during that two-year period. By extending the
18 KELLY V. WENGLER

settlement agreement for two years, the district court thus
ordered the relief to which Plaintiffs were originally entitled
under the agreement but that CCA had failed to provide.

We need not reach the question whether the fines would
have been coercive and therefore civil, for the district court
never actually imposed fines. The court merely informed
CCA of the fines that would have resulted had CCA
continued to violate the settlement agreement after the
conclusion of the contempt proceedings. Informing CCA of
the prospective fine schedule was not itself a sanction. Cf.
S.E.C. v. Hickey, 322 F.3d 1123, 1127–28 (9th Cir. 2003)
(holding a contempt order announcing a fine is not final for
purposes of 28 U.S.C. § 1291 until the court imposes the
fine).

We therefore conclude the court’s contempt finding is
civil in nature.

C. Extension of the Settlement Agreement

CCA contends the district court’s decision to extend the
settlement agreement by two years was an abuse of
discretion. We disagree.

The settlement agreement’s original terms, which were
incorporated into the district court’s dismissal order, provided
that the agreement would terminate “on the two year
anniversary of the date” it was executed. The extension of
the settlement agreement was therefore a modification of a
court order.

Courts have long had inherent power to modify court
orders in changed circumstances. See United States v. Swift
 KELLY V. WENGLER 19

& Co., 286 U.S. 106, 114–15 (1932). This power is now
codified at Rule 60(b) of the Federal Rules of Civil
Procedure. Bellevue Manor Assocs. v. United States,
165 F.3d 1249, 1252 (9th Cir. 1999). Under well established
law, substantial violation of a court order constitutes a
significant change in factual circumstances. See Labor/Cmty.
Strategy Ctr., 564 F.3d at 1120–22; Thompson v. U.S. Dep’t
of Hous. & Urban Dev., 404 F.3d 821, 828–29 (4th Cir.
2005); David C. v. Leavitt, 242 F.3d 1206, 1212 (10th Cir.
2001); Holland v. New Jersey Dep’t of Corrs., 246 F.3d 267,
283–84 (3d Cir. 2001); Vanguards of Cleveland v. City of
Cleveland, 23 F.3d 1013, 1019–20 (6th Cir. 1994). Further,
a modification of a court order is “suitably tailored to the
changed circumstance” when it “would return both parties as
nearly as possible to where they would have been absent” the
changed circumstances. Pigford v. Veneman, 292 F.3d 918,
927 (D.C. Cir. 2002) (emphasis omitted). Here, the court’s
extension of the settlement agreement returned Plaintiffs to
the position they would have occupied had CCA not violated
the agreement from its inception. The modification of the
settlement agreement was therefore well within the court’s
inherent power.

CCA further contends the district court abused its
discretion by extending the entire settlement agreement
instead of extending only the staffing requirements embodied
in paragraph 4. In particular, CCA argues there is no
evidence that it failed to comply with the settlement
agreement’s other provisions, including requirements that
CCA investigate and prepare a report on all inmate-on-inmate
assaults, encourage good behavior by inmates, report
aggravated batteries to the Ada County Sheriff’s Office, and
make housing assignments consistent with IDOC’s Standard
Operating Procedure.
20 KELLY V. WENGLER

The district court’s findings were not confined to the
failure of CCA to fulfill the staffing requirements. The court
found, in addition, that the “same supervisors who signed
falsified record sheets remain[ed] on the job,” and that CCA’s
shoddy record keeping “obscured who was working at what
posts and at what times.” In light of these findings, the
district court doubted CCA’s “compliance in other respects,
such as whether every violent incident is reported.” Further,
the district court was reasonably concerned that CCA’s
failure to comply with staffing requirements affected its
ability to comply with the settlement agreement’s other
requirements. The court’s conclusion that the extension of
the entire agreement was suitably tailored to correct CCA’s
non-compliance was thus not an abuse of discretion.

For the same reason, we reject CCA’s contention that
extending the entire settlement agreement violates 18 U.S.C.
§ 3626(a)(1)(A)’s limitations on prospective relief. Plaintiffs
brought this case under 42 U.S.C. § 1983 for alleged
violations of their Eighth Amendment rights. When the
district court and the parties approved the settlement
agreement, there was no dispute that its remedies were
narrowly drawn, necessary, and the least intrusive means to
bring ICC into compliance with the Eighth Amendment, in
accordance with § 3626(a)(1)(A). The same remedies remain
narrowly drawn, necessary, and the least intrusive means to
rectify CCA’s continued Eighth Amendment violations.

D. Attorney’s Fees

The district court awarded Plaintiffs attorney’s fees and
costs associated with the contempt proceedings. CCA
contends the attorney’s fees award violates the PLRA. We
disagree.
 KELLY V. WENGLER 21

1. Attorney’s Fees in Prisoner Civil Rights Cases

The PLRA was enacted “to deter frivolous prisoner
lawsuits that needlessly wasted judicial resources.” Woods v.
Carey, 722 F.3d 1177, 1182 (9th Cir. 2013). Congress sought
to “reduce the quantity and improve the quality of prisoner
suits.” Porter v. Nussle, 534 U.S. 516, 524 (2002). Toward
this end, Congress introduced a “variety of reforms designed
to filter out the bad [prisoner] claims and facilitate
consideration of the good.” Jones v. Bock, 549 U.S. 199, 204
(2007). Among the reforms were changes to the manner in
which attorney’s fees are determined in prisoner civil rights
cases.

The PLRA’s provisions relating to attorney’s fees apply
to “any action brought by a prisoner who is confined to any
jail, prison, or other correctional facility, in which attorney’s
fees are authorized under [42 U.S.C. § 1988].” 42 U.S.C.
§ 1997e(d)(1). Section 1988 is an exception to the
“American Rule” that each party ordinarily bears its own
attorney’s fees. Hensley v. Eckerhart, 461 U.S. 424, 429
(1983). Section 1988 authorizes courts to award “a
reasonable attorney’s fee as part of the costs” to a “prevailing
party” in cases brought under various civil rights statutes,
including § 1983. 42 U.S.C. § 1988(b). Section 1988 is
asymmetrical, awarding attorney’s fees to civil rights
plaintiffs if they are prevailing parties, but awarding
attorney’s fees to prevailing civil rights defendants only if
plaintiffs’ claims are frivolous. See Hughes v. Rowe,
449 U.S. 5, 14–15 (1980). The purpose of § 1988 is “to
ensure that federal rights are adequately enforced.” Perdue
v. Kenny A. ex rel. Winn, 559 U.S. 542, 550 (2010). Thus, “a
reasonable attorney’s fee” is one that is “sufficient to induce
22 KELLY V. WENGLER

a capable attorney to undertake the representation of a
meritorious civil rights case.” Id. at 552.

Federal courts employ the “lodestar” method to determine
a reasonable attorney’s fees award under § 1988. The
lodestar method is a two-step process. Fischer v. SJB-P.D.
Inc., 214 F.3d 1115, 1119 (9th Cir. 2000). First, a court
calculates the lodestar figure by multiplying the number of
hours reasonably expended on a case by a reasonable hourly
rate. Id. A reasonable hourly rate is ordinarily the
“prevailing market rate[] in the relevant community.”
Perdue, 559 U.S. at 551 (citation omitted). The lodestar
figure “roughly approximates the fee that the prevailing
attorney would have received if he or she had been
representing a paying client who was billed by the hour in a
comparable case,” id. (emphasis omitted), and is therefore a
presumptively reasonable fee. Gonzalez v. City of Maywood,
729 F.3d 1196, 1202 (9th Cir. 2013). Second, the court
determines whether to modify the lodestar figure, upward or
downward, based on factors not subsumed in the lodestar
figure. See Perdue, 559 U.S. at 553–54; Morales v. City of
San Rafael, 96 F.3d 359, 363–64 & n.8 (9th Cir. 1996), as
amended on denial of reh’g, 108 F.3d 981 (9th Cir. 1997).

The PLRA alters the lodestar method in prisoner civil
rights cases in three fundamental ways. First, rather than
hours reasonably expended in the litigation, hours used to
determine the fee award are limited to those that are
(1) directly and reasonably incurred in proving an actual
violation of the plaintiff’s rights and (2) either
proportionately related to court-ordered relief or directly and
reasonably incurred in enforcing such relief. 42 U.S.C.
§ 1997e(d)(1). Second, in actions resulting in monetary
judgments, the total amount of the attorney’s fees award
 KELLY V. WENGLER 23

associated with the monetary judgment is limited to 150
percent of the judgment. Id. § 1997e(d)(2); see Jimenez v.
Franklin, 680 F.3d 1096, 1100 (9th Cir. 2012). This
limitation does not apply to actions (or parts of actions)
resulting in non-monetary relief. Third, the hourly rate used
as the basis for a fee award is limited to 150 percent of the
hourly rate used for paying appointed counsel under the
Criminal Justice Act, 18 U.S.C. § 3006A (the “CJA rate”).
42 U.S.C. § 1997e(d)(3). Hereafter, we refer to 150 percent
of the CJA rate as the “PLRA rate.” Notably, the PLRA is
silent as to the second step of the lodestar method, in which
a court may adjust the lodestar figure based on factors not
subsumed in that figure.

2. The Fee Enhancements Under the PLRA

The district court concluded Plaintiffs were entitled to
reasonable attorney’s fees and costs because they were
“prevailing part[ies]” in a case brought under § 1983. See
42 U.S.C. § 1988. The court used the lodestar method, as
modified and limited by the PLRA, to determine reasonable
attorney’s fees. The court first multiplied the number of
hours directly and reasonably expended in enforcing the
settlement agreement by the PLRA rate to arrive at the
lodestar figure. The court then enhanced the lodestar figure
based on factors not already subsumed in that figure.

CCA contends the attorney’s fees award violates the
PLRA. According to CCA, in a suit for injunctive or
declaratory relief, the PLRA prohibits an attorney’s fees
award exceeding the amount determined by multiplying the
number of hours permitted under § 1997e(d)(1) by the PLRA
rate specified in § 1997e(d)(3). That is, CCA contends the
PLRA forbids a court from enhancing the lodestar figure,
24 KELLY V. WENGLER

even if the enhancement is based on factors not subsumed in
that figure. We disagree and conclude the PLRA allows
enhancement of the lodestar figure in appropriate
circumstances. Our conclusion follows from two principles
of statutory interpretation.

First, a “party contending that legislative action changed
settled law has the burden of showing that the legislature
intended such a change.” Green v. Bock Laundry Mach. Co.,
490 U.S. 504, 521 (1989). When Congress enacted the
PLRA, the lodestar method for determining a reasonable
attorney’s fees award under § 1988 had already “achieved
dominance in the federal courts.” Gisbrecht v. Barnhart,
535 U.S. 789, 801 (2002). As explained above, the lodestar
method is a two-step process. A court first determines the
lodestar figure by multiplying the hours reasonably expended
by a reasonable hourly rate; it then determines whether to
adjust that figure upward or downward. See, e.g., Blum v.
Stenson, 465 U.S. 886, 892–96 (1984) (addressing hourly
rates); id. at 896–902 (addressing enhancements); Hensley,
461 U.S. at 433–34 (addressing hourly rates); id. at 434–37
(addressing enhancements). There is nothing in the
attorney’s fees provisions of the PLRA that instructs a court
not to take both steps in this process.

A comparison to the attorney’s fees provision of the
Individuals with Disabilities in Education Act (“IDEA”) is
instructive. The IDEA specifies that attorney’s fees awarded
under that statute shall be “based on rates prevailing in the
community.” 20 U.S.C. § 1415(i)(3)(C). The next sentence,
in language not found in the PLRA, then specifies: “No
bonus or multiplier may be used in calculating the fees
awarded under this subsection.” Id. As this sentence
illustrates, Congress knows how to instruct a court not to
 KELLY V. WENGLER 25

adjust the lodestar figure. Yet such instruction is
conspicuously absent from the PLRA. Congress’ silence is
“strong evidence that the usual practice should be followed.”
Jones, 549 U.S. at 212. That is, Congress’ silence is strong
evidence that the PLRA contemplates the continuation of the
normal practice under § 1988 of adjusting the lodestar figure
by factors not subsumed in that figure.

Second, when “Congress includes particular language in
one section of a statute but omits it in another — let alone in
the very next provision — [federal courts presume] that
Congress intended a difference in meaning.” Loughrin v.
United States, — U.S. —, 134 S. Ct. 2384, 2390 (2014)
(citation omitted). In cases involving monetary judgments,
the PLRA expressly limits the total amount of the attorney’s
fees award associated with the monetary judgment to 150
percent of the judgment. 42 U.S.C. § 1997e(d)(2); see
Jimenez, 680 F.3d at 1100. By contrast, § 1997e(d)(3),
addressed to attorney’s fees awards not associated with
monetary judgments, does not express a limitation on the
total amount of those awards. Instead, it limits only the
hourly rate that an award may be “based on.” 42 U.S.C.
§ 1997e(d)(3). We infer from the presence of an express
limitation on the total amount of attorney’s fees awards in
§ 1997e(d)(2), and the absence of such a limitation in
§ 1997e(d)(3), that Congress did not intend the latter section
— the section relevant to this appeal — to “cap” the total
amount of attorney’s fees awards. We therefore hold that,
while the PLRA limits the hours and the hourly rate used in
calculating the lodestar figure, it does not cap the total
amount of attorney’s fees awards in cases seeking declaratory
and injunctive relief, and it continues to authorize a court to
enhance the lodestar figure based on non-subsumed factors.
26 KELLY V. WENGLER

CCA makes several specific objections to this conclusion,
none of which is persuasive. First, CCA contends the
Supreme Court’s decision in Martin v. Hadix, 527 U.S. 343
(1999), compels us to treat the hourly rate prescribed in
§ 1997e(d)(3) as a maximum hourly rate that cannot be
enhanced by a non-subsumed factor. The Court’s opinion in
Martin stated that the PLRA “places a cap on the size of
attorney’s fees that may be awarded in prison litigation suits.”
Id. at 350. CCA contends this statement tells us that
§ 1997e(d)(3) caps the total amount of attorney’s fees awards,
but CCA quotes the statement out of context. The Court
continued: “Court-appointed attorneys in the Eastern District
of Michigan are compensated at a maximum rate of $75 per
hour, and thus, . . . the PLRA fee cap for attorneys working
on prison litigation suits translates into a maximum hourly
rate of $112.50.” Id. When read in context, the Court’s
statement merely invokes the undisputed proposition that
§ 1997e(d)(3) limits the hourly rate that may be used for
determining the lodestar figure.

Second, CCA contends § 1997e(d)(3) already provides for
the possibility of an enhancement. According to CCA, the
CJA rate is the presumptive hourly rate under the PLRA, and
§ 1997e(d)(3) affirmatively authorizes fee enhancements not
exceeding 150 percent of that rate. CCA does not cite, nor
have we been able to find, any authority supporting this
contention. As we have noted above, the PLRA explicitly
refers to § 1988 as the governing framework for determining
a reasonable attorney’s fees award. 42 U.S.C. § 1997e(d)(1).
Attorney’s fees awards under § 1988 are determined by first
multiplying the relevant hourly rate by the number of hours
reasonably spent. Section 1997e(d)(3) provides only that fee
awards may not “be based on an hourly rate greater than 150
percent” of the CJA rate. That is, the rate limited by
 KELLY V. WENGLER 27

§ 1997e(d)(3) is the base rate used to calculate the lodestar
figure, which is the PLRA’s counterpart to the prevailing
market rate used in non-PLRA cases. Only after calculating
the lodestar figure using this base rate does a court then
determine whether to apply an enhancement to that figure.

Third, CCA contends allowing enhancements under the
PLRA renders the 150 percent limitation in § 1997e(d)(3) a
dead letter. The 150 percent limitation on the base hourly
rate for calculating an attorney’s fees award is meaningless,
CCA contends, if the district court may enhance that hourly
rate. CCA overstates the matter, ignoring important
limitations on a district court’s determination of attorney’s
fees awards and its discretion to enhance them. Not only
does the PLRA limit the hours for which attorney’s fees may
be awarded and the total fees that may be awarded in a case
resulting in a monetary award, see § 1997e(d)(1) & (d)(2), but
enhancements to the lodestar figure are available only “in
those rare circumstances in which the lodestar does not
adequately take into account a factor that may properly be
considered in determining a reasonable fee.” Perdue,
559 U.S. at 554. Further, the fee applicant bears the “the
burden of proving that an enhancement is necessary” and
“must produce specific evidence that supports the award.” Id.
at 553 (citations and internal quotation marks omitted).
Finally, even when an enhancement is appropriate, of course,
it may not be based on considerations already subsumed in
the PLRA rate.

3. Justifications for the Enhancement

The remaining question is whether the district court in
this case provided clear reasons, supported by specific
evidence in the record, for enhancing the lodestar figure. We
28 KELLY V. WENGLER

conclude it did. The district court relied on two non-
subsumed factors to justify its attorney’s fees enhancement
— superior performance and the need to attract competent
counsel. We consider these factors in turn.

a. Superior Performance

The district court enhanced the lodestar figure in part
because it found Plaintiffs’ counsel had provided superior
performance. In Perdue, the Supreme Court held, although
the lodestar figure typically subsumes “the novelty and
complexity of a case” and “the quality of an attorney’s
performance,” a court may enhance the lodestar in “rare” and
“exceptional” circumstances when the lodestar figure does
not adequately represent counsel’s “superior performance and
commitment of resources.” 559 U.S. at 553–54 (citation
omitted). The Court gave several examples of such
circumstances, including one that is relevant here. A court
may enhance the lodestar figure when “the method used in
determining the hourly rate employed in the lodestar
calculation does not adequately measure the attorney’s true
market value, as demonstrated in part during the litigation.”
Id. at 554–55. Thus, in non-PLRA civil rights cases, a court
may enhance the lodestar figure if plaintiff’s counsel
demonstrates the value of her services exceeds what the court
determines to be the prevailing market rate for otherwise
comparable attorneys.

In PLRA cases, the analysis is similar to that in other civil
rights cases, though a court must calculate the lodestar figure
using a base rate no greater than the PLRA rate specified in
§ 1997e(d)(3). In other words, the PLRA rate virtually
always replaces the prevailing market rate as the
presumptively reasonable rate in the court’s determination of
 KELLY V. WENGLER 29

the lodestar figure because actual prevailing rates are very
unlikely to be as low as the PLRA rate. See, e.g., Webb v.
Ada Cnty., 285 F.3d 829, 838–39 (9th Cir. 2002); Graves v.
Arpaio, 633 F. Supp. 2d 834, 854–55 (D. Ariz. 2009); Ilick v.
Miller, 68 F. Supp. 2d 1169, 1174 (D. Nev. 1999); Lozeau v.
Lake Cnty., 98 F. Supp. 2d 1157, 1171 (D. Mont. 2000);
Rodriguez v. Cnty. of L.A., 96 F. Supp. 3d 1012, 1021 (C.D.
Cal. 2014). Like the prevailing rate in a non-PLRA case, the
PLRA rate generally subsumes the factors relevant to the
determination of a reasonable attorney’s fee, including the
novelty and complexity of the case and the quality of the
attorney’s performance. However, as in non-PLRA cases, the
district court may enhance the lodestar figure when plaintiff’s
counsel’s “superior performance and commitment of
resources” is “rare” and “exceptional” as compared to the
run-of-the-mill representation in such cases. Perdue,
559 U.S. at 553–54 (citation omitted).

Citing Perdue, the district court found “Plaintiffs’ counsel
achieved excellent results for their clients under extreme time
pressure and with very limited resources.” The court found
further that Plaintiffs’ counsel provided “extraordinary
performance yielding extraordinary results,” and that “the
quality of the work that produced these results [was]
underrepresented in the hourly fee.” We conclude the district
court did not abuse its discretion in so finding.

The district court’s justification for enhancing the lodestar
figure was supported by specific evidence in the record. The
court’s statement that Plaintiffs’ counsel labored “under
extreme time pressure and with very limited resources” was,
if anything, an understatement. Plaintiffs’ counsel had only
twenty-six days to conduct discovery in preparation for the
contempt hearing. During that period, Plaintiffs’ two
30 KELLY V. WENGLER

attorneys not only engaged in extensive motions practice,
writing numerous pre-trial briefs; they also conducted an
extraordinary amount of discovery. They interviewed,
deposed, and prepared numerous witnesses in three states and
obtained and reviewed roughly 7,000 pages of discovery.
Most of the documents were produced for their review only
five days before the beginning of the hearing. Some were
even produced for review on the first evening of the hearing.
Despite these constraints, Plaintiffs’ counsel uncovered
substantial evidence of noncompliance with the settlement
agreement. Based on this evidence, they obtained a contempt
finding and secured significant remedies for their clients.

CCA does not dispute the constraints under which
Plaintiffs’ counsel labored, but it contends counsel did not
achieve extraordinary results. First, CCA contends the
remedies obtained did “nearly nothing” for Plaintiffs because
Plaintiff Miera was the only named Plaintiff who remained
incarcerated at ICC during the contempt hearing. CCA is
wrong in so contending. The parties settled the suit before
the district court decided whether to certify a class, but the
suit had been filed as a putative class action, and the
settlement agreement’s intended beneficiaries were all
prisoners at ICC. Plaintiffs’ counsel achieved significant
results for these beneficiaries by obtaining a contempt finding
against CCA and a two-year extension of the settlement
agreement. See Hook v. Ariz. Dep’t of Corr., 972 F.2d 1012,
1014–15 (9th Cir. 1992) (intended beneficiaries may enforce
a court order).

Second, CCA seeks to minimize the importance of the
relief obtained by Plaintiffs’ counsel by pointing to an offer
it made during negotiations preceding the contempt hearing.
Three weeks before the start of the hearing, CCA offered, in
 KELLY V. WENGLER 31

exchange for not being subject to a finding of contempt, to
extend the settlement agreement for one year; to hire a
monitor of its own choosing to review staffing at ICC; and to
pay Plaintiffs’ reasonable attorney’s fees and costs associated
with the OSC. CCA compares this offer to the relief
ultimately granted by the court and contends the additional
relief ordered by the court, over and above CCA’s offer, was
insignificant. Again, CCA is wrong in so contending. After
the hearing, Plaintiffs obtained an express finding of
contempt and a two-year extension of the settlement
agreement. This relief is substantially more than was offered
by CCA. Moreover, Plaintiffs’ counsel had initiated
contempt proceedings a month before CCA made its offer of
settlement, and CCA’s offer was the product of the work
Plaintiffs’ counsel had already put into the case.

b. Attracting Competent Counsel

The district court also enhanced the lodestar figure
because it found the limited fees available in prisoner civil
rights cases, without enhancement, are insufficient to induce
private attorneys in Idaho to accept cases, such as this one,
seeking declaratory and injunctive relief. The court found
Plaintiffs’ counsel “were likely the only attorneys willing to
accept” Plaintiffs’ case.

CCA contends the district court’s rationale is an
impermissible ground for enhancing the lodestar figure in a
case governed by the PLRA because it undermines the
PLRA’s goal of reducing the number of prisoner lawsuits.
CCA’s position would maximize one of the PLRA’s goals by
eviscerating the other. The PLRA’s purposes are to “reduce
the quantity and improve the quality of prisoner suits.”
Porter, 534 U.S. at 524 (emphasis added). Thus, while the
32 KELLY V. WENGLER

PLRA was an effort to “eliminate frivolous lawsuits,” it was
not an effort to “eliminate the ameliorative effect achieved by
valid constitutionally-based challenges.” Cano v. Taylor,
739 F.3d 1214, 1219 (9th Cir. 2014); see Woods, 722 F.3d at
1182–83.

Improving the quality of prisoner suits requires that
plaintiffs with meritorious civil rights cases be able to secure
competent counsel. When the lodestar figure based on the
PLRA rate is insufficient to induce competent attorneys to
accept appointment in meritorious civil rights cases, it is by
definition not a reasonable fee. See Perdue, 559 U.S. at 552.
When a plaintiff demonstrates with specific evidence that no
competent attorney is willing to take on a meritorious civil
rights case because of insufficient fees, the district court
furthers the PLRA’s purpose by enhancing the lodestar figure
by an amount reasonably calculated to induce competent
lawyers in the relevant community to take such cases. See id.
at 554 (a fee enhancement is appropriate when there is
“specific evidence that the lodestar fee would not have been
adequate to attract competent counsel” (citation and internal
quotation marks omitted)).

Based on evidence in the record, the district court found
that, due to the inadequacy of the unenhanced PLRA rate,
Idaho attorneys, save for Plaintiffs’ counsel, have been
unwilling to accept appointment in prisoner civil rights cases
seeking injunctive and declaratory relief. Plaintiffs’ lead
counsel, Stephen Pevar, stated in a declaration that he was not
aware of any attorney or organization, other than his
organization and attorneys associated with Idaho Legal Aid
Services, Inc., that had filed a prisoner class action in Idaho
seeking injunctive relief since the PLRA was enacted.
However, Legal Aid Services is now unable to represent
 KELLY V. WENGLER 33

prisoners in PLRA cases. Howard Belodoff, the Associate
Director of Idaho Legal Aid Services, Inc., stated in a
declaration that since 1996 a federal regulation has prohibited
his organization from representing plaintiffs in cases
governed by the PLRA, on pain of losing its primary source
of funding. Finally, J. Walter Sinclair, Jason Monteleone,
and Jason Wood, three Idaho practitioners, stated in
declarations that they were unaware of any attorney or
organization in Idaho, other than the ACLU, that would
litigate PLRA suits seeking only declaratory and injunctive
relief. Accordingly, we conclude the district court did not
abuse its discretion in enhancing the attorney’s fees award to
ensure that it was adequate to attract competent counsel in
comparable cases.

4. Challenges To Line Items in the Fee Request

CCA contests some of the line items for which Plaintiffs
were awarded attorney’s fees. Specifically, CCA contends
Plaintiffs should not have been awarded attorney’s fees for
two attorneys to attend depositions, and they contend
Plaintiffs should not have received attorney’s fees for the
performance of certain clerical tasks. We conclude the
district court did not abuse its discretion in awarding fees for
these items.

Conclusion

For the foregoing reasons, we affirm the district court’s
contempt order and its order awarding attorney’s fees.

AFFIRMED.