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 II. 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, 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), the Court set out the procedures for determining whether a statute should apply retroactively. First, the court should determine whether “Congress has expressly prescribed the statute’s proper reach.” Id. at 280, 114 S.Ct. 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 liability for past conduct, or impose new duties with respect to transactions already completed.” Id. If the statute has language indicating possible retroactive effect, the presumption against retroactivity prevails 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, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (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. However, such language certainly does not “expressly” indicate that the 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 provides 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 indicated that § 802 applies retroactively and did not do so for *1394§ 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 Ma-. Jonty’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. Moreover, there was no question that the February 16th order granted attorney’s fees to the parties for monitoring activities, the only questions were at what rate and for how many hours. Therefore, the “award” of 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 indicates 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, 511 U.S. at 280, 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 sueh payment in its February 16 order. The court clearly set out procedures, which, if followed by the plaintiffs’ attorneys, would entitle plaintiffs’ attorneys to receive compensation at the prevailing rate. Plaintiffs’ attorneys continued their monitoring activities 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 determined 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 [plaintiffs’] behalf, they expected to have their fee determined under Section 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 rendered 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.
The Majority argues, based on Bradley, 416 U.S. 696, 94 S.Ct. 2006, 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 723-24, 94 S.Ct. at 2022. However, the Court based this decision on *1395the fact that applying the statute retroactively would not have changed the liabilities of the parties or the parties’ expectations. Id. at 721, 94 S.Ct. at 2021. The Court determined that since the district court had already awarded fees based on common law principles, 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 plaintiffs 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 plaintiffs 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, 94 S.Ct. at 2016.
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 continued 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 expectations and impose new guidelines at this late date.”); Weaver v. Clarke, 933 F.Supp. 831, 835 (D.Neb.1996) (“[Rjetroactive imposition of the section of the PLRA ... would cause ‘manifest injustice’ to lawyers like Plaintiffs counsel who have performed their ethical obligations 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, 94 S.Ct. at 2016. 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.
. 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 specifically stated that if the PLRA applied it would set counsel's fees at the maximum amount.
. 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.
. In its February 16, 1996 order, the district court stated: "The court further 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.
. I concede that this does not express clear intent; however, it does indicate that there is “statutory or legislative history to the contrary” regarding retroactivity. Bradley, 416 U.S. at 711, 94 S.Ct. at 2016.
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.