FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WALTER D. BALLA,
Plaintiff-Appellee, No. 10-35413
v.
D.C. No.
1:81-cv-01165-BLW
STATE OF IDAHO; IDAHO STATE
BOARD OF CORRECTION, OPINION
Defendants-Appellants.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Argued and Submitted
April 13, 2011—Seattle, Washington
Filed April 17, 2012
Before: Andrew J. Kleinfeld, Barry G. Silverman, and
Kim McLane Wardlaw,* Circuit Judges.
Opinion by Judge Kleinfeld
*The original panel consisted of Judge Beezer, Judge Kleinfeld, and
Judge Silverman. Judge Wardlaw was drawn to replace Judge Beezer, who
is since deceased. Judge Wardlaw has read the briefs, reviewed the record,
and listened to tape of the oral argument.
4217
4220 BALLA v. STATE OF IDAHO
COUNSEL
Mark A. Kubinski, Deputy Attorney General, Boise, Idaho,
for the appellants.
Jason E. Prince, Stoel Rives LLP, Boise, Idaho, for the appel-
lee.
OPINION
KLEINFELD, Senior Circuit Judge:
We address an attorneys’ fees award in a class action under
the Prisoner Litigation Reform Act.
Facts
This is a class action, more than a quarter century old, by
Idaho state prisoners at the Idaho State Correctional Institu-
tion (ISCI). The district court initially “was not successful in
obtaining attorney representation”1 for the prisoners, so they
litigated pro se. They went to trial and won their case. The
court found, in 1984, that because of deliberate indifference,
without any connection to a legitimate penological purpose,
the inmates were subjected to needless pain and suffering, on
account of inadequate medical and psychiatric care.2 That,
plus overcrowding, and inadequate attention to housing and
security, contributed to stabbings, assaults, gang rape, and
sexual slavery.3 Close custody (the classification for espe-
cially dangerous or vulnerable prisoners) was so badly man-
aged that “[v]irtually every young man assigned to that
1
Balla v. Idaho State Bd. of Corr., 595 F. Supp. 1558, 1561 (D. Idaho
1984) (“Balla I”).
2
Id. at 1568.
3
Id. at 1570.
BALLA v. STATE OF IDAHO 4221
custody level was brutally raped.”4 The court issued an
injunction to remedy the constitutional violations.5
Subsequently the court held hearings on compliance.6 The
prisoners were still pro se.7 In 1987, the district court ruled
that overcrowding had worsened, to the point where it
amounted to “the unnecessary and wanton infliction of pain.”8
The court now made the injunction more precise and specific
to each housing unit of the prison.9 The court specifically lim-
ited double-celling—that is, two inmates in one cell—for
some classifications, and also limited the number of prisoners
housed in some units.10 The court expressed particular con-
cern about housing “close custody inmates,” who “are often
volatile, violent and predatory,” with others upon whom these
prisoners preyed.11
The injunction remained in effect in 2008 and 2009, when
the facts giving rise to this case occurred. The injunction pro-
hibited, among other things: (1) putting “close custody” pris-
oners two in a cell instead of one in a cell, or housing more
than 78 inmates in Unit 9; (2) housing more than 108 inmates
in Units 10 or 11; and (3) housing more than 144 inmates in
Unit 13.12 The State was further enjoined from using “any
other vehicle, scheme or mechanism designed to undermine
the spirit and letter” of the injunction.13 No question has been
raised in this case regarding the continuing validity of the
injunction.
4
Id. at 1579.
5
Id. at 1583.
6
Balla v. Bd. of Corr., 656 F. Supp. 1108 (D. Idaho 1987) (“Balla II”).
7
Id. at 1109.
8
Id. at 1115.
9
Id. at 1119-20.
10
Id.
11
Id. at 1117.
12
Id. at 1119-20.
13
Id. at 1119.
4222 BALLA v. STATE OF IDAHO
The State of Idaho moved in 2007 to terminate the twenty-
year-old injunction. The district court noted that it had previ-
ously appointed the Portland law firm, Stoel Rives LLP, to
represent the prisoner class, “and the law firm worked on the
litigation for almost two years without being paid for its
work.” The firm subsequently was awarded a portion of the
fees it had earned, and withdrew as counsel. Because of the
State’s motion, the court determined that counsel was again
necessary and gave notice that “the Court will attempt to
locate counsel for Plaintiffs.”
In April 2007, the State withdrew its motion to terminate
the injunction. Evidently the injunction was still required to
rectify constitutional violations, despite the injunction’s
decades-long duration. The district court concluded that it
“must appoint counsel to represent the interests of the class
members because the inmates cannot proceed pro se.” After
a lack of success finding anyone else, and considering Stoel
Rives’s experience and competence at representing the
inmates, the court reappointed the firm. Stoel Rives submitted
several interim bills. After considering objections to particular
charges, the court ordered payment of amounts it calculated
to be due. Those interim awards have not been appealed.
This appeal arises out of a crisis at the end of 2008 and the
beginning of 2009. Idaho had been housing 650 of its prison-
ers in private prisons in Texas and Oklahoma. Idaho decided
to terminate contracts with the private prison operators in
those states, both out of a desire to save money and because
of concerns about staff shortages at the private prisons. In
October 2008, the State terminated the Texas contract and
notified the Texas prison operator that it would remove the
prisoners by January 5. But Idaho did not then have facilities
in which to house the Texas prisoners. By late November,
with the return date less than two months away, the Depart-
ment of Correction had decided that it would convert a ware-
house on the prison grounds, formerly used as an upholstery
shop, into a new housing unit, to be called “Unit 24.” The
BALLA v. STATE OF IDAHO 4223
plan was to have a big open area housing all the prisoners in
bunk beds. Inmates would use toilet facilities in two trailers
outside the building.
Stoel Rives learned of the upholstery warehouse plan from
the newspapers. On December 11, the firm wrote the deputy
attorney general handling the case that the plan would appear
to violate the prohibition in the injunction against double-
celling and against housing inmates on “nondesigned cell
areas,” that is, areas not originally intended to be used as
cells. Counsel asked the State for an explanation in hopes of
avoiding litigation. The State responded that it would make
the project manager available for a meeting, though “due to
the holidays, the time for such a meeting is somewhat limit-
ed,” to December 22, 23, 28 or 29. A December 22 meeting
left a number of issues unresolved. In a January 2 email, the
State advised Stoel Rives that 200 inmates would live in the
converted warehouse, construction was progressing but
incomplete, and that the two planned outbuildings for bath-
room facilities were not yet ready.
The State arranged to bring the prisoners back from Texas
before the modifications to the warehouse and the toilet facili-
ties could be completed. Before the Texas prisoners arrived,
it moved 200 prisoners from other units of the Idaho prison
into the warehouse, since it planned to house some of the
Texas prisoners in preexisting units. The conversion project
was behind schedule, but the State did not reschedule the
return of the Texas prisoners. Only one of the two planned
outdoor bathroom trailers was on-site, and it was not function-
ing. Because the bathroom outbuildings were not yet ready,
the 200 inmates already moved into the warehouse would
have to share 4 toilets, 3 urinals, and 4 sinks already built into
the warehouse, and would have to be transported to other
units for showers. The inmates who were moved into the
warehouse were notified only about 45 minutes in advance
that they would be moving. Correctional officers confiscated
valuable electronic items for storage elsewhere. There was a
4224 BALLA v. STATE OF IDAHO
shortage of plastic totes in which the prisoners were to store
their personal effects. The bunk beds in the warehouse were
lower quality than those in the other units. The district court
found that many prisoners “were upset about their new living
conditions.”
The State’s plan failed immediately, even before the pris-
oners returning from Texas arrived. On January 2, after the
lights were turned down for the night and within a few hours
of being moved to the warehouse, the 200 inmates rioted. The
prison lost control. The riot “tore the place apart.” Only two
guards were in the warehouse unit. They retreated to a
plexiglass-shielded control room, a protective structure in the
partially converted upholstery shop. The inmates were unable
to break through the plexiglass shield to get at the guards.
But, “[u]ndaunted, inmates climbed onto the roof of the room
and began to stomp a hole through the plywood.” Fortunately,
before the inmates succeeded, the two guards broke a window
with a shovel and escaped from the rioting prisoners. The
inmates then broke through into the control room, set a small
fire, and rushed through the exterior doors and out of the
building.
The State now had an already overcrowded prison and a
destroyed warehouse it had intended to use to accommodate
the 300 returning Texas prisoners. They were still not back.
Despite the now unusable converted warehouse facility, the
state went ahead with flying 300 inmates back from Texas,
there being no better alternative. The Texas facility had
arranged to cease operating when the Idaho prisoners left, and
the local jails in Idaho could not hold the incoming prisoners
from Texas. When Stoel Rives had met with State officials
and the district judge, the director of the Department of Cor-
rection said they would do “everything possible” to end the
double-celling within 60 days. The director did not give an
assurance of a date when the State would bring itself into
compliance with the existing injunction, just an aspiration.
BALLA v. STATE OF IDAHO 4225
Because the upholstery shop had not been a subject of the
injunction, the housing conditions there did not violate its
express terms, though the conditions might have violated the
“spirit and letter” catch-all clause. But because the riot had
made it unusable, and the State had brought back the Texas
inmates anyway, it violated the letter of the injunction by
double-celling inmates in the preexisting units. The State
acknowledged that it had violated the population limits in let-
ters to both Stoel Rives and the Court on January 5, 2009,
though it noted this was because the upholstery warehouse
had been destroyed. Stoel Rives responded with letters and
telephone calls to try to work out a plan to bring the State into
compliance. The State responded that it intended to end pro-
hibited double-celling by March 1, but that plans for the ware-
house had not been finalized. When Stoel Rives complained
of the lack of a firm commitment to any date and a lack of any
explanation of why roughly two months was necessary, the
State responded that in its view that amount of time was “rea-
sonable” and “realistic” considering “the realities of prison
management.”
Stoel Rives moved, on January 16, for an order to show
cause why the defendants should not be held in contempt, and
for an order requiring the State to quit violating the double-
celling prohibition in the injunction by February 4, to pay
$5,000 per day for each day of violation of the injunction, and
to remove by March 1 one of the two beds and one of the two
lockers from each cell where double-celling was prohibited.
The State responded on January 30, a week before the hearing
set for the motion, that as of the day before, “all 151 beds”
violating the injunction “have been vacated.” Evidently, what
was “realistic” considering “the realities of prison manage-
ment” changed when the state received the contempt motion.
Thus by the time the contempt motion was heard on February
18, the State had complied.
The district court held two days of hearings, and, the viola-
tion of the injunction having been rectified, declined to hold
4226 BALLA v. STATE OF IDAHO
the defendants in contempt. The court noted that to the extent
the motion sought deadlines for compliance with the double-
celling limitations, it was moot, because the State had brought
itself into compliance. The court found that the defendants’
preparation for the influx of 300 inmates from Texas was
flawed, stating that it was “difficult to understand how Defen-
dants believed they were going to retrofit a warehouse with
the necessary facilities to contain a large group of prisoners
in a little over four weeks.” But the three-and-a-half week
period during which the double-celling injunction provision
was violated would have been considerably shorter, had the
inmates not rioted. The riot created a “true exigency” in
which “no good choices were open” to the State, other than
the double-celling. Therefore, despite the “obvious missteps”
in preparation of Unit 24, the court did not find that the State
“intended to exceed the population caps before the riot
occurred.” The court concluded that the State’s inability to
comply with the double-celling provisions on account of the
riot, combined with innocent intent, was a defense to con-
tempt. The court noted that, had the State “remained noncom-
mittal about setting a firm deadline,” instead of quickly
bringing itself into compliance after the contempt motion was
filed, the motion for contempt “would have had much more
force.” The court expressed a concern that, since the State had
brought itself into compliance, sanctions might be punitive
rather than remedial in nature, importing the criminal rather
than the civil standard. The court accordingly denied the
motion to hold defendants in contempt and declined to impose
sanctions for the temporary violation of the injunction.
Subsequently, Stoel Rives moved for an award of
$77,608.20 in attorneys’ fees, $2,249.20 in costs and
expenses, plus $269.10 in postage and office supplies for the
class representative. The motion was not just for the imbro-
glio arising out of the return of the Texas prisoners, but rather
for a year and a half of monitoring, from December 11, 2007
through June 22, 2009. The State did not dispute that monitor-
ing fees would be awardable, but disputed amounts and
BALLA v. STATE OF IDAHO 4227
whether some of the work was necessary, and objected that
awarding anything for the contempt motion would be errone-
ous, because plaintiffs had not prevailed on that motion.
The district court carefully analyzed the issues and the
amounts claimed, and granted in part and denied in part. The
court noted that it was undisputed that plaintiffs were the pre-
vailing party in all three Balla cases, and reasoned that under
the Prisoner Litigation Reform Act and our decision in Webb
v. Ada County,14 “attorneys’ fees can be awarded for post-
judgment work in enforcing and monitoring the court’s prior
judgments,” without proof of a new constitutional violation.
Addressing defendants’ argument that counsel should not be
compensated for any work on the contempt motion, the court
found that even though it had denied the motion, plaintiffs’
counsel “played a key role in monitoring and working with
the IDOC to resolve the overcrowding issue.” The court also
explained that it had appointed Stoel Rives “for the specific
purpose of monitoring” the injunctive relief, and that the
firm’s services were “inextricably intertwined” with monitor-
ing compliance with the injunction on which plaintiffs had
prevailed. “[T]he legal services were directly and reasonably
incurred in monitoring the Balla injunctions.” The court
awarded a slightly reduced amount: $76,185.60 in attorney’s
fees, $1,249.20 in costs and $46.94 in postage and office sup-
ply costs for the class representative.
The State appeals the award of attorneys’ fees and costs in
connection with the prisoners’ contempt motion.
Analysis
Periodic fee awards for monitoring compliance with a final
judgment are appealable if the award disposes of the attor-
neys’ fee issue for the work performed during the time period
14
Webb v. Ada County, 285 F.3d 829 (9th Cir. 2002).
4228 BALLA v. STATE OF IDAHO
covered by the award.15 We therefore have jurisdiction under
28 U.S.C. § 1291.
[1] Defendants argue that because the prisoners lost on
their motion to hold defendants in contempt of court, the dis-
trict court erred in awarding attorneys’ fees. We review attor-
neys’ fee awards for abuse of discretion16 and matters of law
de novo.17 The central legal question is whether, where a party
previously prevailed and won a judgment, fees of a court-
appointed monitor are barred for efforts leading to a motion
that was denied. We conclude that the answer is maybe, in the
appropriate exercise of discretion by the district court. We
reject defendants’ suggestion that fee awards are necessarily
barred, and we conclude that the district judge acted within
his discretion in awarding fees in this case.
Here are the parameters of this case. First, the prisoners
were and are a prevailing party in the lawsuit. They went to
trial and won a judgment. Second, their subsequently
appointed counsel filed a motion to hold the defendants in
contempt for violating the injunction the prisoners had won,
and, because the State would not commit itself to obeying the
injunction by any set date, it was reasonable to file it. Third,
their filing of the motion was what the Supreme Court has
called in another context18 a “catalyst” spurring the defendants
to conform quickly to the injunction. Fourth, the prisoners’
motion was denied. And fifth, a major reason why the motion
was denied is that before it was heard, the defendants brought
themselves into conformity with the injunction.
15
See Madrid v. Gomez, 190 F.3d 990, 994 n.4 (9th Cir. 1999); Gates
v. Rowland, 39 F.3d 1439, 1450 (9th Cir. 1994).
16
Richard S. v. Dep’t of Dev. Servs., 317 F.3d 1080, 1085 (9th Cir.
2003).
17
Webb v. Ada County, 285 F.3d 829, 834 (9th Cir. 2002).
18
Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health &
Human Servs., 532 U.S. 598, 601 (2001).
BALLA v. STATE OF IDAHO 4229
Defendants argue that Buckhannon Board & Care Home,
Inc. v. West Virginia Department of Health & Human Services,19
and the Seventh Circuit’s analysis in Alliance To End Repres-
sion v. City of Chicago,20 categorically prohibit an attorneys’
fee award for filing and losing a contempt motion. Defendants
do not quarrel with the proposition that the motion was a cata-
lyst speeding their conduct to conform to the injunction, but
they read Buckhannon to mean that being a catalyst alone
does not suffice for an award of attorneys’ fees. That is too
broad a reading of Buckhannon.
A. Monitoring fees after Buckhannon
[2] We have already decided in Prison Legal News v. Sch-
warzenegger that monitoring fees not resulting in additional
relief are allowable after Buckhannon.21 Two out of three of
our sister circuits to have ruled on the matter have agreed.22
The Seventh Circuit concluded otherwise, in Alliance, holding
that if monitoring efforts do not produce a judgment or order,
then under Buckhannon such legal work is not compensable.23
19
Id.
20
356 F.3d 767 (7th Cir. 2004).
21
Prison Legal News v. Schwarzenegger, 608 F.3d 446, 452 (9th Cir.
2010) (“We therefore hold that PLN may recover attorneys’ fees under
§ 1988 for monitoring the state officials’ compliance with the parties’ set-
tlement agreement.”).
22
Cody v. Hillard, 304 F.3d 767, 773 (8th Cir. 2002) (“[A prior court-
ordered consent decree] was clearly a ‘judicially sanctioned change’ in the
parties’ relationship that conferred prevailing party status on the class
under Buckhannon.”); Johnson v. City of Tulsa, 489 F.3d 1089, 1108 (10th
Cir. 2007) (“The Decree itself was such a change [resulting in a judicially
sanctioned change in the parties’ legal relationship], and attorney fees
incurred for reasonable efforts to enforce that change—that is, protect the
fruits of the Decree—are compensable.”).
23
Alliance To End Repression v. City of Chicago, 356 F.3d 767, 771
(7th Cir. 2004) (“Monitoring may reduce the incidence of violations of a
decree, but if it does not produce a judgment or order, then under the rule
of Buckhannon it is not compensable.”).
4230 BALLA v. STATE OF IDAHO
Alliance emphasized that the fees in that case were incurred
by lawyers with no duty to monitor the court-ordered relief,24
and that the huge amount of time they put into the case, far
from being a catalyst bringing about conformity with the
decree, was work “down the drain.”25 For these reasons, we
might agree with the Seventh Circuit on the result in that case,
and it might limit Alliance were they faced with our case. The
Seventh Circuit rule is phrased categorically—no fees without
additional judicially ordered relief—so it is worth explaining
why we reject such a categorical rule.
The compelling reason why a categorical rule as cited in
Alliance is mistaken is that Buckhannon did not overrule
Pennsylvania v. Delaware Valley Citizens’ Council for Clean
Air.26 Delaware Valley involved a different statute, the Clean
Air Act, which allows fees “whenever the court determines
such award is appropriate.”27 But the Court did not uphold
fees for post-judgment work because of the greater liberality
of the statute. Instead, it applied the same standard as that for
civil rights cases under the “prevailing party” provision of 42
U.S.C. § 1988(b).28 That makes Delaware Valley applicable to
the “prevailing party” issue in this case. The Court noted that
several circuits had held that “postjudgment monitoring of a
consent decree is a compensable activity for which counsel is
entitled to a reasonable fee,”29 and concluded that participa-
24
Id. at 772 (“Neither the original nor the modified decree imposes on
these lawyers any duty of operating the compliance machinery.”).
25
Id. at 770.
26
478 U.S. 546 (1986).
27
Sec. 304(d) of the Clean Air Act, 42 U.S.C. § 7604(d).
28
Delaware Valley, 478 U.S. at 560 (“Given the common purpose of
both § 304(d) and § 1988 to promote citizen enforcement of important fed-
eral policies, we find no reason not to interpret both provisions governing
attorney’s fees in the same manner.”).
29
Id. at 559.
BALLA v. STATE OF IDAHO 4231
tion in the postjudgment proceedings at issue was compensa-
ble.30
Buckhannon did not cite or purport in any way to overrule
Delaware Valley, and the cases are easily reconciled. In Buck-
hannon, the Supreme Court held that “prevailing party” fees
could not be awarded to a party “that has failed to secure a
judgment on the merits or a court-ordered consent decree,”
even though its efforts had “achieved the desired result
because the lawsuit brought about a voluntary change in the
defendant’s conduct.”31 The Court concluded that, to be a
“prevailing party” for purposes of § 1988(b), a party must
secure some material alteration in the legal relationship
between the parties, and that being a “catalyst” for change
does not suffice.32
[3] Before Buckhannon came down, we had held in Keith
v. Volpe that under Delaware Valley attorneys’ fees for post-
judgment monitoring of a consent decree were awardable in
civil rights cases, even in the absence of a contempt finding
or other subsequent judicial relief.33 In Prison Legal News we
addressed whether Keith was still good law, and reconciled
Delaware Valley and Buckhannon. We held that “prevailing
party” status has been obtained and remains in effect when a
party has obtained an enforceable settlement agreement or
consent decree.34 We rejected the Seventh Circuit’s view in
Alliance that only monitoring that produces a judgment or
30
Id. at 560.
31
Buckhannon, 532 U.S. at 600.
32
Id. at 605.
33
Keith v. Volpe, 833 F.2d 850, 857 (9th Cir. 1987) (“We hold that a
finding of contempt or obstruction of implementation is not a prerequisite
to an award of attorney fees for reasonable post-judgment monitoring of
a consent decree.”).
34
Prison Legal News, 608 F.3d at 451 (affirming Keith’s holding that “a
plaintiff who obtains a legally enforceable settlement agreement qualifies
as a ‘prevailing party’ ”).
4232 BALLA v. STATE OF IDAHO
order is enforceable.35 We reasoned that Keith v. Volpe was
not overruled by Buckhannon, because Buckhannon “did not
mention, much less overrule,” Delaware Valley.36
[4] Our precedents compel the conclusion that Stoel
Rives’s compliance monitoring was compensable. In Johnson
v. City of Tulsa, the Tenth Circuit similarly rejected Alliance,
because Alliance had erroneously treated Buckhannon as
though it had overruled Delaware Valley.37 Buckhannon
speaks to the case where there never has been judicially
ordered relief. Delaware Valley speaks to the case where there
has been judicial relief, though the monitoring work is subse-
quent to the judicial order and produces no new order. This
distinction makes practical sense for two reasons. First,
injunctions do not always work effectively, without lawyers
to see that the enjoined parties do what they were told to do.
Second, in most cases, no orders are needed after the first,
because just as night watchmen deter burglary, monitors deter
violations of injunctions.
B. Compensation for a motion that was denied
The novel twist in this case is that the district court
awarded what might be characterized as fees for losing. The
motion for an order to show cause why the defendants should
not be held in contempt was denied, because the defendants
had brought themselves into conformity with the injunction
between the time the motion was filed and the time it was
heard, and because the State did not intentionally violate the
Balla injunction. There are two aspects requiring our consid-
eration. First, did denial of the contempt motion require denial
of fees as a matter of law? And second, was the award of fees
an abuse of discretion? We conclude that the answer to both
questions is “No.”
35
Id.
36
Id. at 452.
37
Johnson v. City of Tulsa, 489 F.3d 1089, 1108 (10th Cir. 2007).
BALLA v. STATE OF IDAHO 4233
[5] The Prisoner Litigation Reform Act controls the attor-
neys’ fees award in this case.38 In actions by prisoners, it is
not enough that fees are authorized under the Civil Rights
Attorney’s Fees Award Act of 1976.39 Under the Prisoner Liti-
gation Reform Act, fees “shall not be awarded, except to the
extent that” the fee was directly and reasonably incurred in
proving a violation of the plaintiff ’s rights, and either the
amount is proportionate to the relief ordered, or alternatively,
the fee is “directly and reasonably incurred in enforcing the
relief.”40 The statute provides in relevant part:
In 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 section
1988 of this title, such fees shall not be awarded
except to the extent that—
(A) the fee was directly and reasonably
incurred in proving an actual violation of
the plaintiff ’s rights protected by a statute
pursuant to which a fee may be awarded
under section 1988 of this title; and
38
See 42 U.S.C. § 1997e.
39
42 U.S.C. § 1988(b) provides:
In any action or proceeding to enforce a provision of sections
1981, 1981a, 1982, 1983, 1985, and 1986 of this title, title IX of
Public Law 92-318, the Religious Freedom Restoration Act of
1993, the Religious Land Use and Institutionalized Persons Act
of 2000, title VI of the Civil Rights Act of 1964, or section 13981
of this title, the court, in its discretion, may allow the prevailing
party, other than the United States, a reasonable attorney’s fee as
part of the costs . . . .
40
42 U.S.C. § 1997e(d)(1).
4234 BALLA v. STATE OF IDAHO
(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 enforc-
ing the relief ordered for the violation.41
This statutory language allows for an argument that no fees
can be awarded for any work that does not “prov[e] an actual
violation,” because subsection (A) is a condition for both
(B)(i) and (B)(ii). We considered and rejected that argument
in Webb v. Ada County.42 We held in Webb that that reading
had to be mistaken because if it were correct, it “would render
the language of subsection (B)(ii) superfluous.”43 That lan-
guage creates an exception to the exclusion of attorneys’ fees
where “the fee was directly and reasonably incurred in enforc-
ing the relief ordered for the violation.”44 The Webb court
continued:
If a postjudgment fee request could only be granted
if the attorney’s services were directly linked to a
discrete constitutional violation, fees incurred “in
enforcing the relief” that the court had ordered
because of demonstrated previous constitutional vio-
lations, could not be awarded.45
By expressly providing for fee awards for “enforcing” relief
ordered, Webb held, Congress can only have meant that law-
yers’ enforcement work after the order providing relief be
compensable, even though that monitoring does not result in
a second judgment or order. That construction of
§ 1997e(d)(1) makes more sense of the reconciliation of Dela-
41
Id. (emphasis added).
42
285 F.3d 829 (9th Cir. 2002).
43
Id. at 834.
44
42 U.S.C. § 1997e(d)(1)(B)(ii).
45
Webb, 285 F.3d at 834.
BALLA v. STATE OF IDAHO 4235
ware Valley and Buckhannon than an alternative reading,
because, with well-behaved defendants, “enforcing relief” is
achieved by monitoring alone, and there are no subsequent
judgments or orders. Under Webb, the Prisoner Litigation
Reform Act’s “prov[e] an actual violation” requirement is sat-
isfied when the prisoners have previously won an injunction.
[6] That is not to say that once an injunction has been
obtained, attorneys’ fees are unrestricted. The statutory
scheme should be read, under Delaware Valley, Buckhannon,
Prisoners Legal News, and Webb, to mean that if prisoners
file an action but do not win an order or judgment establishing
that they have proved a violation of their rights, no fees may
be awarded. Once they have proved a violation, as by an
injunction, the subsection (A) requirement has been satisfied.
Then fees may be awarded proportionally to the relief
granted, under subsection (B)(i). Or alternatively, for monitor-
ing, the limitation of subsection (B)(ii) applies: the fee is
allowable only if and to the extent that it is “directly and rea-
sonably incurred in enforcing the relief ordered” in the injunc-
tion. That reading conforms both to the statutory text and to
the cases. The requirement that the court exercise discretion
means it must assure that the case is not being milked by a
monitor after the injunction has been obtained, for fees that
are unreasonable in amount, for work not reasonably per-
formed to enforce the relief, or for work not directly related
to enforcing the relief.
[7] The prisoners in this case had long ago won their
injunction, so subsection (A) was satisfied, and they did not
have to win further judicial relief to get paid for their lawyers’
work. But the prisoners not only did not win anything else,
they lost, on their contempt motion. Can a fee be “directly and
reasonably incurred in enforcing the relief” when the work
was on a motion that was denied? Here, we conclude it can.
The answer might surprise one inexperienced in litigation, but
such losing motions as the one at issue here are a common
and effective tool for bringing about conformity to the law.
4236 BALLA v. STATE OF IDAHO
Such motions might be seen as the opposite of a Pyrrhic vic-
tory. Despite losing the battle over the contempt motion, the
prisoners nevertheless won the war by inducing the State’s
prompt return to compliance with the injunction.
[8] The district court found that even though the contempt
motion was denied, Stoel Rives’s efforts, including the denied
motion, “played a key role” in resolving the overcrowding
issue at the prison, and that such motions are appropriate “to
ensure the injunctive relief is being complied with.” The facts
amply support the finding. Before the motion, on January 12,
the best the State claimed to be able to do was use its best
efforts, without any assurance of success, to conform to the
injunction by the beginning of March. Stoel Rives filed the
contempt motion on January 16. Thirteen days later, on Janu-
ary 29, more than a month earlier than its earlier anticipated
date of March 1, the State was back in compliance with the
injunction. This was, significantly, before the scheduled hear-
ing on the contempt motion. The immediacy of the prison riot
after the move to the warehouse shows the value of forcing
the State to speed up.
The best defense against an action or motion to compel
compliance with a legal obligation is compliance. Unlike the
work in Alliance, a motion that brings about compliance is not
work “down the drain.” The object of the motion was to
obtain compliance, not to win an order hopefully leading to
compliance. The object was attained. If in a battle to take a
hill, the adversary flees instead of fighting to a bloody defeat,
the taking of the hill makes the battle a victory.
Probably the most common example of motions to compel
compliance that are denied, but which are nevertheless suc-
cessful as a practical matter, is in civil discovery. Frequently,
interrogatories are not answered in 30 days as required by
Fed. R. of Civ. P. 33(b)(2), and requests for production are
not satisfied within 30 days as required by Rule 34. Because
in matters of any complexity, the time limits are very short,
BALLA v. STATE OF IDAHO 4237
a lawyer typically will call a noncompliant adversary a couple
of weeks after the deadline, followed by a letter a few weeks
after the call. If the party still has not received its discovery
or an adequate assurance, the lawyer will move for an order
compelling disclosure or discovery under Rule 37(a). Rule
37(a)(5)(A) requires the court to award attorneys fees in most
circumstances where “the disclosure or requested discovery is
provided after the motion was filed,” even though in such a
circumstance, there would be no order compelling the party
to do what it has already done. The victory sought is getting
the answers or documents, not getting an order to produce
them. Thus there is nothing unusual about awarding fees for
losing, when the loss is caused by the effectiveness of the
legal work in bringing about performance of a legal obliga-
tion.
[9] In this case, the judge had discretion to consider
whether Stoel Rives’s work on the motion to compel confor-
mity to the injunction was “directly and reasonably incurred
in enforcing the relief.” The district court acted within the
bounds of its discretion in awarding fees in a reasonable
amount for bringing about that conformity with the injunc-
tion. To decide whether a lawyer’s bills were “reasonably
incurred,” a judge properly looks at whether what the lawyer
did was reasonable when he did it, and compensates for time
reasonably spent. Here, Stoel Rives’s work was what one
would expect of a lawyer working for a client that could
afford its efforts but that was not indifferent to the cost. The
firm showed no evidence of milking the case, and the fees
were “directly and reasonably incurred.”
AFFIRMED.