Glover v. Johnson

Related Cases

WELLFORD, Circuit Judge,

concurring in part and dissenting in part.

Judge Ryan has done a commendable job in examining and dealing with the extended *255and complex issues involved in this case. I write separately to address those issues of particular concern to this judge who, like many of my colleagues, has been called upon to address a number of appeals dealing with what I characterize as micromanagement of the Michigan prisons and penal system by the experienced district judge involved in this appeal and other Michigan district judges. This case alone has generated numerous appeals, very substantial legal expense, and has occasioned a recent appeal to, and decision by, another panel on other aspects of this bundle of controversies, styled Mary Glover, et al. v. The Director of Prisons, et al.1 This case and Hadix have been litigated for more than twenty years, and the United States v. Michigan, 134 F.3d 745 (6th Cir.1998) case for nearly fifteen years. Enormous state resources and administrative efforts have- been expended to deal with these lawsuits and injunctive actions.

I. ATTORNEY FEES

A. Effect of Prison Litigation Reform Act (“PLRA,” 42 U.S.C. § 1997e(d) et seq.)

Appellate cases Nos. 96-2586/2588/97-1218/1272 involved plaintiffs’ fee claims and the effect of PLRA on these claims. Hadix v. Johnson, Nos. 96-1851/1943/1908/1907, also involved, in part, plaintiffs’ attorney’s fee claims. We have held that the § 1997e(d) cap on fees does not apply to legal work otherwise covered performed prior to the enactment of PLRA.

I feel strongly, however, that the Fourth Circuit was correct in Alexander v. Boyd, 113 F.3d 1373 (4th Cir.1997), that the Act and its cap on fees applies to work completed before enactment of the PLRA but awarded after such enactment. I find the statutory language in that respect unambiguous — fees “shall not be awarded” except as the statutes provides. “[Ajpplication of an attorney fees provision-to ongoing litigation is arguably not retroactive.” Landgraf v. USI Film Products, 511 U.S. 244, 289, 114 S.Ct. 1522, 1523-24,128 L.Ed.2d 229 (1994) (Scalia, J., concurring). I would count attorney fee applications as collateral to the underlying merits and procedural in nature. See Landgraf, 511 U.S. at 275-77, 114 S.Ct. at 1502-03. Being procedural, a change in fee rate may be effectuated retroactively by PLRA, and certainly if the work is merely of a paralegal-type function.

The PLRA is even more clear that its fee limitation provisions apply to work rendered on a pending case after its enactment. There is, in such a situation, no reasonable argument on the part of plaintiffs’ counsel that under the plain language of the limitation, after it became law, that counsel could expect to continue to be compensated at a rate higher than the statute allows. A contrary holding means that the statutory' limitation is to be ignored for legal work performed after its enactment (and clear expression of congressional intent) in a pending case such as this where “the end does not appear in sight.” I find nothing in the statute’s legislative history that suggests it is not to apply to pending cases, at least as to legal work performed after its enactment.

I would require, moreover, that as to each substantial issue in dispute for plaintiffs to establish entitlement to what should be a statutorily limited fee, they must show that they are a prevailing party and have entitlement on that issue. Otherwise, plaintiffs are court encouraged in this case to pursue new and even expanding areas of claims against the state, such as furnishing a counsel at state expense to female prisoners (not male prisoners) in civil custody and domestic rela*256tions cases in state courts. See our recent decision Glover v. Johnson, 75 F.3d 264 (6th Cir.1996).2

I must therefore DISSENT on the attorney’s fee issue as to construction of PLRA and its limitations.

B. Other Attorney’s Fee Holdings

What has been said iri section A above I would reiterate as to what I consider collateral attorney’s fee claims, particularly on matters such as we addressed in Glover v. Johnson, 75 F.3d 264 (6th Cir.1996). It is a time in this litigation (as well as in Hadix) to take seriously the congressional concerns with ever-expanding federal court involvement in prisoner litigation as reflected in the PLRA. Congress clearly intended to restrict and limit such litigation, and federal court involvement at state expense and to put a cap on attorney’s fees to be awarded prisoner representatives.

I would call upon the district courts to examine very carefully so-called monitoring fees of counsel and persons designated by the courts to serve as a kind of prison overseer on ombudsmen. Potential for excessive claims and charges to the state treasury is plainly implicated. I concur in the majority decision that vacates fee awards for “advocacy by plaintiffs’ attorneys on behalf of inmates who were allegedly retaliated against by .the defendants.”

I would also disallow one-half of the thirteen plus' hours’ time charge claimed by plaintiffs’ attorneys in “consulting, conferring and discussing matters” together as representing duplication of effort or double charging.

II. VOCATIONAL PROGRAMMING

I would also DISSENT from the affir-mancé of a contempt finding for offering and maintenance of four vocational programs instead of six ordered by the district court. There was inadequate proof, in my opinion, that defendants willfully and contumaciously acted to deprive female prisoners of reasonable vocational opportunities commensurate with the greater number of programs offered to the far greater number of male prisoners in a much higher number of male prison facilities. Taking into account geographic differences in locations, demonstrated interest, work experience, and financial burdens involved in maintaining a small program for women prisoners, I would conclude that there was no reasonable basis for a contempt finding on this issue.

I add but one more observation about what relief may be mandated in this extended controversy and the other related prison cases in Michigan. Prisoners are entitled to relief only when they show constitutional violations by prison authorities.. It seems to me that “entitlements” to desirable educational, vocational, and administrative benefits have been the norm in Michigan prison cases rather than constitutional mandates. This case is not about denial of access, education, and vocational opportunity to female prisoners, but rather about the extent of such opportunities in relation to those which may have been offered to men in some Michigan male penal institutions.

Í have expressed relatively narrow disagreement, except as to applicability of PLRA and fees, in the extensive majority opinion. In general, I have concurred because it covers the real issues with discernment.

. Apart from numerous appeals in Glover, there have also been a number of appeals in Hadix v. Johnson, another Michigan prisoner class action, in which an appeal is pending, (Nos.96-1851/1907/1908/1943). In addition, still another panel has recently decided an appeal in United States v. State of Michigan, 134 F.3d 745, dealing with a consent decree and compliance plan regarding prison conditions in Michigan. Still other prisoner retaliation claims have recently come before us on appeal based on a cursory examination of our docket: Thaddeus-X v. Blatter, 110 F.3d 1247 (6th Cir.1997) (now under en banc consideration),, and White v. McGinnis, 131 F.3d 593 (6th Cir.1997). See also the recent class action Michigan prisoner visitation case, Bazzetta v. McGinnis, 133 F.3d 382 (6th Cir.1998). See also Hadix v. Johnson, 133 F.3d 940 (6th Cir. 1998) (PLRA is constitutional).

. It is interesting to note that the district court apparently ignored our decision in that case in an order dated January 31, 1997, on the purported authority of MLB v. SLJ, — U.S.-, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996). MLB v. SZJ mandates a pauper parent in a civil appeal an appellate record at state expense. It does not deal with requiring a state to furnish female prisoners counsel in civil cases having to do with domestic relations or child custody. Plaintiffs, no doubt, will be seeking attorney’s fees at a rate exceeding the PLRA for such legal services expressly held not to be mandated by our court.