IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 00-50439
__________________________
TIMOTHY J. VOLK,
Plaintiff-Appellant,
versus
JOSE G. GONZALEZ, Etc; ET AL,
Defendants,
G. MEGLARENO, Officers under their
individual and official capacity;
DONALDA FISCHER,
Defendants-Appellants.
___________________________________________________
Appeal from the United States District Court
For the Western District of Texas
___________________________________________________
September 6, 2001
Before JOLLY, SMITH, and WIENER, Circuit Judges.
WIENER, Circuit Judge:
This appeal arises out of a successful civil-rights suit
brought by Plaintiff-Appellant Timothy J. Volk, a prison inmate,
against the prison warden and eight correctional officers. Volk as
the prevailing party now seeks our review of the amount of
attorney’s fees awarded to him by the district court. Finding no
error, we affirm.
I.
FACTS AND PROCEEDINGS
The procedural history of this case is lengthy and complex.
Volk, a Texas state prisoner, filed a 42 U.S.C. § 1983 civil-rights
suit against the prison warden and eight correctional officers at
his prison, alleging a violation of his right to be free from cruel
and unusual punishment. Counsel was subsequently appointed for
Volk, and all parties consented to proceed before a magistrate
judge (hereafter the “district court”). Volk filed an amended
complaint, adding two more defendants and a new allegation that he
had been retaliated against for exercising his right to petition
the court for redress of his grievances.
The case proceeded to trial, and the jury found that
Defendant-Appellee Guy Meglareno had violated Volk’s constitutional
right to be free from cruel and unusual punishment and that
Defendant-Appellee Donalda Fischer had violated Volk’s
constitutional right to petition the court for redress of his
grievances. Although it also found that the constitutional
violations had proximately caused Volk compensable injuries, the
jury awarded Volk “zero” dollars as damages.
The district court entered a judgment notwithstanding the
verdict, awarding Volk a total of two dollars in nominal damages
against Meglareno and Fischer. The court also granted in part
Volk’s post-trial motions for declaratory and injunctive relief,
ordering that (1) two prison disciplinary cases against Volk be
2
declared void and expunged from his record, (2) Volk’s prior
custodial status be restored, and (3) particular good-time credits
that Volk had not received because of his reduction in custodial
status be awarded.
Volk filed a Fed. R. Civ. P. 59(e) motion for a new trial or
to alter or amend the judgment. He sought a new trial on (1) the
liability of the defendants, other than Meglareno, whom he had
charged with cruel and unusual punishment, and (2) his entitlement
to compensatory damages. Alternatively, Volk asked the district
court to alter the judgment by finding that all defendants charged
with cruel and unusual punishment were liable and by awarding him
compensatory damages of at least $1000 against all the defendants.
The court denied Volk’s Rule 59(e) motion.
Volk also filed a motion seeking attorney’s fees, costs, and
expenses. During the pendency of Volk’s lawsuit, Congress had
enacted the Prison Litigation Reform Act (“PLRA”) which, inter
alia, limits the amount of attorney’s fees recoverable by
successful prisoner civil-rights litigants. The relevant
provisions of the PLRA state:
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...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
...the amount of the fee is proportionately
3
related to the court ordered [sic] relief for
the violation; or the fee was directly and
reasonably incurred in enforcing the relief
ordered for the violation. Whenever a
monetary judgment is awarded in an action
described [above], a portion of the judgment
(not to exceed 25 percent) shall be applied to
satisfy the amount of attorney's fees awarded
against the defendant. If the award of
attorney's fees is not greater than 150
percent of the judgment, the excess shall be
paid by the defendant.1
The district court determined that (1) an award of attorney’s fees
was appropriate; (2) the PLRA did not apply to the fee
calculations; (3) the amount of fees and costs requested by Volk
was reasonable; and (4) Volk should recover only one-half of the
requested attorney’s fees and legal assistant fees because the
litigation was only partially successful. The court then awarded
Volk $27,300.63 in attorney’s fees and legal assistant fees, and
$658.52 in court costs.
Meglareno and Fischer appealed, challenging the district
court’s judgment notwithstanding the verdict, award of declaratory
and injunctive relief, and award of attorney’s fees. Volk cross-
appealed, contesting the denial of his Rule 59(e) motion and the
amount of his attorney’s fees award.
In an unpublished opinion2 (“Volk I”), we affirmed the
judgment in part, vacated it in part, and reversed and remanded the
1
42 U.S.C. § 1997e(d)(1)-(2) (emphasis added).
2
Volk v. Gonzalez, No. 98-50199 (5th Cir. Jan. 4, 2000).
4
case for further proceedings. In so doing, we determined that the
district court did not err in denying Meglareno and Fischer’s
requested instruction on qualified immunity or in denying Volk’s
motion for a new trial on the issue of damages.
We also rejected Meglareno and Fischer’s insufficient-evidence
argument and, finding that neither defendant had the power to
effect the district court’s directives, vacated its grant of
injunctive and declaratory relief. We did so, however, with the
express “understanding that the Texas Department of Criminal
Justice —— Institutional Division will recognize the implications
of this court’s judgment for Volk’s custodial status.”
Finally, we concluded that the district court erred in not
applying the PLRA, which was enacted during the course of Volk’s
lawsuit, to the portion of his attorney’s fees incurred after the
statute’s effective date. Accordingly, we remanded the case “for
the magistrate judge to determine the award of attorney’s fees for
the work done after the PLRA’s effective date in light of
restrictions contained in the PLRA.” We stated that “the judgment
is reversed and remanded in part for determination of the award of
attorney’s fees.”
On remand from Volk I, the district court ordered Volk to file
a supplemental brief or “advisory” regarding the proper calculation
of attorney’s fees in light of our remand order; and ordered
Meglareno and Fischer to file a responsive advisory. The court
explained that it would apply a PLRA provision that limited
5
attorney’s fees to 150 percent of the hourly rate established for
court-appointed counsel in criminal cases,3 but noted that it did
not intend to apply a PLRA provision requiring a prisoner who
receives a money judgment to pay up to 25 percent of that judgment
toward his attorney’s fees. The district court’s order did not
mention the provision of the PLRA that limits the judgment debtor’s
liability for the successful prisoner’s attorney’s fees to 150
percent of the monetary judgment.
Noting that in Volk I we had not ruled on his appellate
argument that the halving of his attorney’s fees was an abuse of
discretion, Volk’s advisory to the district court asserted that on
remand the court should not start from the position that the fees
should be halved. In their response, Meglareno and Fischer argued
that Volk was not entitled to any specified costs, any pre-PLRA
attorney’s fees, any post-PLRA attorney’s fees exceeding 150
percent of the damages award, or any legal assistant fees.
The district court declined to reconsider the award of costs
to Volk or the order reducing the legal fees by half. Rather, the
court awarded Volk $3022.50 (one-half of his pre-PLRA attorney’s
fees), $1.50 (the district court’s erroneous calculation of the
defendants’ liability for Volk’s post-PLRA attorney’s fees and
legal assistant fees as limited by the PLRA provision restricting
3
See 42 U.S.C. § 1997e(d)(3).
6
such liability to 150 percent of the damages award), and $725.25 in
costs.
Volk timely filed a Fed. R. Civ. P. Rule 59(e) motion for a
new trial or, in the alternative, to alter or amend the judgment.
He asserted that on remand from Volk I the district court erred as
a matter of law in applying the 150-percent fee cap and that, in
any event, the cap would allow fees of $3.00, not $1.50. He also
insisted that he was entitled to a supplemental award of $3,186.01
for the additional attorney’s fees that he incurred in the
subsequent litigation, which was made necessary by the acts of the
judgment debtors, for recovery of his initial attorney’s fees award
from them, and that this supplemental fee award should not be
subject to the 150-percent fee cap. In a supplemental Rule 59(e)
motion, Volk contended for the first time that the PLRA’s
limitation of a defendant’s responsibility for attorney’s fees to
150 percent of damages awarded violates the equal-protection
guarantee embedded in the Fifth Amendment.
The district court upheld the application of the 150-percent
fee cap specified in 42 U.S.C. § 1997e(d)(2) and determined that
the post-PLRA fee award in excess of $3.00 was unenforceable
against Meglareno and Fischer. After “[a]ssuming that [Volk’s]
equal protection challenge is an argument which may be raised on a
motion for a new trial,” the court rejected that argument on the
ground that Volk had failed to show that the 150-percent cap was
not rationally related to the PLRA’s goal of curtailing frivolous
7
lawsuits.4 The district court acknowledged that fees incurred in
seeking attorney’s fees (hereafter “fees-on-fees”) appear to be
recoverable under the PLRA, but observed that no court has held
that the 150-percent fee cap is inapplicable to such fees. The
court granted Volk’s motion in part, amending its prior attorney’s
fees order by awarding post-PLRA fees in the amount of $3.00. This
appeal followed.
II.
ANALYSIS
A. Standard of Review
Our scope of review after remand is limited.5 “On a second
appeal following remand, the only issue for consideration is
whether the court below reached its final decree in due pursuance
of [this court’s] previous opinion and mandate.”6 The district
court’s discretion in awarding attorney’s fees is broad, as
“[a]ppellate courts have only a limited opportunity to appreciate
4
Volk initially appealed the district court’s ruling on his
constitutional challenge, but waived that argument just before this
appeal was argued. Thus the constitutionality of 42 U.S.C. §
1997e(d)(2) is no longer before us.
5
Burroughs v. FFP Operating Partners, 70 F.3d 31, 33 (5th Cir.
1995).
6
Id.
8
the complexity of trying any given case and the level of
professional skill needed to prosecute it.”7 Accordingly, we
review the district court’s award of attorney’s fees only for an
abuse of discretion.8 The factual findings supporting an award of
attorney’s fees are reviewed for clear error; the conclusions of
law underlying the award are reviewed de novo.9
B. Pre-PLRA Attorney’s Fees
Volk contends that the district court abused its discretion by
halving his pre-PLRA attorney’s fees to reflect his limited
success. To reiterate, in Volk I, we remanded this case to the
district court with instructions to “determine the award of
attorney’s fees for work done after the PLRA’s effective date in
light of restrictions contained in the PLRA.” In reversing the
entire award of attorney’s fees, however, Volk I never mentioned
the pre-PLRA fee award, which both parties had challenged on
various grounds.
Not surprisingly, after Volk I’s remand, the parties asked the
district court to reconsider the original award of pre-PLRA
attorney’s fees. The district court, however, after “undertak[ing]
7
Hopwood v. Texas, 236 F.3d 256, 277 (5th Cir. 2000).
8
Id.
9
Riley v. City of Jackson, 99 F.3d 757, 759 (5th Cir. 1996).
9
a thorough review of all relevant pleadings filed both before and
after the appeal,” declined to “second-guess the trial court’s
original finding that fees should be awarded or that they should be
reduced by half to reflect partial success.”
In its original calculations, the district court had reduced
the “lodestar” amount10 by one-half because of Volk’s less-than-
complete success. Volk had sued eleven defendants for $130,000 in
damages but recovered a mere two dollars from two of the
defendants. Although civil-rights plaintiffs who obtain “excellent
results” need not prevail on every claim to be entitled to full
recovery of attorney’s fees, “those achieving limited or partial
success may recover only that which is reasonable in light of the
relief obtained.”11 Furthermore, the Supreme Court has emphasized
that the degree of success obtained is “the most critical factor in
determining the reasonableness of a fee award,” and that “[i]n some
circumstances, even a plaintiff who formally ‘prevails’ . . .
10
The “lodestar” amount is calculated by multiplying the number
of hours reasonably expended on the litigation by a reasonable
hourly rate. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
The “lodestar” may then be adjusted according to the twelve factors
set forth in Johnson v. Georgia Hwy. Express, Inc., 488 F.2d 714,
717 (5th Cir. 1974) (listing, inter alia, the “amount involved and
the results obtained”).
11
See Albright v. Good Shepherd Hosp., 901 F.2d 438, 440 (5th
Cir. 1990). See also Montcalm Pub. Corp. v. Commonwealth of
Virginia, 199 F.3d 168, 174 (4th Cir. 1999) (upholding award of 25
percent of requested attorney's fees in PLRA suit when the
plaintiff prevailed on only one of four claims).
10
should receive no attorney’s fees at all.”12
In its original order, the district court had stated,
In the instant case, the plaintiff sought much
more than monetary damages....During the
trial, it was apparent that plaintiff’s goal
was not only to recover monetary damages, but
he also wanted to have his good-time earning
status restored to enhance the possibility
that he might be paroled. He appeared to
place a far greater value on his liberty,
i.e., being released from prison, than he did
on his request for monetary relief.
Ultimately, plaintiff prevailed on his claim
for declaratory relief and had his good time
earning status and good-time credit restored.
The Court views plaintiff’s success as more
than trivial.
As the district court observed on remand, however, “it is clear
that the award of injunctive and declaratory relief formed an
important part of the trial court’s decision to award any fees.”
Given that all injunctive and declaratory relief originally awarded
to Volk was vacated, his case is distinguishable from those he
cites for the proposition that when plaintiffs achieve the
“ultimate goal” of their litigation, “nominal relief does not
necessarily a nominal victory make.”13 True enough, “in many
instances, a nominal recovery may very well not derogate from the
12
See Farrar v. Hobby, 506 U.S. 103, 144-45 (1992).
13
See Farrar, 506 U.S. at 121 (O’Connor, J., concurring). See
also Riley v. City of Jackson, Miss., 99 F.3d 757, 760 (5th Cir.
1996) (holding that the district court abused its discretion by
awarding 3 percent of requested attorney’s fees after plaintiffs
recovered only nominal damages but succeeded in enjoining city from
enforcing unconstitutional media policies and guidelines with
respect to abortion clinic protests).
11
importance of the victory.”14 That is especially so when private
civil-rights litigation serves the public purpose of vindicating
important rights on a large scale, even though large sums of money
may not be at stake.15 This is not such a case, however, and the
district court did not abuse its discretion in awarding Volk one-
half of his pre-PLRA attorney’s fees to reflect his limited
success.
C. Application of the PLRA’s Fee Cap to Legal Assistant Fees
Volk also objects to the district court’s application of the
PLRA’s cap on attorney’s fees to limit his recovery of legal
assistant fees. The Supreme Court has made clear that legal
assistant fees come under the rubric of “reasonable attorney’s
fee[s]” compensable under § 1988.16 Section 1997e(d), however,
begins with the proposition that in any action brought by a
prisoner, fees authorized by § 1988 “shall not be awarded, except
to the extent that...the fee was directly and reasonably incurred
in proving an actual violation of the plaintiff’s rights[.]”17
14
See id. See also Hopwood, 236 F.3d at 279 (noting that
plaintiffs had achieved “‘the principal goal of their lawsuit’ by
striking down racial preferences in higher education admissions in
Texas,” but upholding district court’s 15-percent fee reduction for
lack of success because plaintiffs “did not receive any specific
injunctive or monetary relief for their own asserted injuries, and
they did not gain admission to the Law School”).
15
See Farrar, 506 U.S. at 121.
16
See Missouri v. Jenkins, 491 U.S. 274, 285 (1989).
17
42 U.S.C. § 1997e(d)(1) (emphasis added).
12
Accordingly, as long as legal assistant fees satisfy §
1997e(d)’s requirement of being “directly and reasonably incurred
in proving an actual violation of the plaintiff's rights,” such
fees are a compensable element of attorney’s fees under the PLRA
and therefore are subject to its strictures. In short, we conclude
that Volk’s position that the fee cap does not apply to legal
assistant fees is without merit.
D. Application of the PLRA’s Fee Cap to Fees-on-Fees
Finally, Volk challenges the district court’s application of
§ 1997e(d)(2)’s fee cap to limit his award of attorney’s fees
incurred in recovering attorney’s fees. As an initial matter, we
note that it is well settled that fees-on-fees are recoverable
under § 1988.18 But whether § 1997e(d)(2)’s fee cap applies to such
fees is res nova in this circuit and, to our knowledge, in every
other circuit. We have not yet addressed the predicate question
whether fees-on-fees are even recoverable under § 1997e(d), but the
Third Circuit has answered that question in the affirmative.19 It
held that an award of fees-on-fees is consistent with § 1997e(d)’s
mandate that only attorney’s fees that are “directly and reasonably
18
See Cruz v. Hauck, 762 F.2d 1230, 1233 (5th Cir. 1985).
Section § 1988(b) provides: “[T]he court, in its discretion, may
allow the prevailing party, other than the United States, a
reasonable attorney’s fee as part of the costs[.]”
19
See Hernandez v. Kalinowski, 146 F.3d 196, 199-201 (3d Cir.
1998).
13
incurred in proving an actual violation of the plaintiff's rights”
be awarded in prisoner civil-rights litigation.20 In reaching this
conclusion, the Third Circuit relied on the similarity between the
language in § 1988(b), which courts have construed to permit
recovery of fees-on-fees,21 and the language in the PLRA, which
authorizes fees for proving an actual violation.22 The Third
Circuit concluded that
[i]f Congress did not intend for attorneys to
be fully compensated for their work on civil
rights claims for prisoners, Congress needed
to explicitly express an intent to change the
established construction to authorize the
diminishment of actual fees by not
compensating attorneys for time...spent
proving the right to attorney's fees.23
We acknowledge that the language of § 1997e(d) is not identical to
that of § 1988(b), yet we are comfortable with the Third Circuit’s
conclusion that there is no material difference between the
language of these two provisions. Accordingly, we join that
circuit in holding that fees-on-fees are “directly and reasonably
incurred in proving an actual violation of the plaintiff's rights”
and therefore recoverable under § 1997e(d).
Consequently, Volk’s argument that fees-on-fees are
20
Id. at 199.
21
Section 1988(b) provides for fees “[i]n any action ... to
enforce a provision of section[ ] ... 1983[.]” 42 U.S.C. §
1988(b).
22
See Hernandez, 146 F.3d at 200.
23
See id.
14
recoverable under § 1997e(d) but not subject to § 1997e(d)(2)’s fee
cap because they are not for “services rendered in reference to
establishing liability or damages” is hopelessly contradictory. To
reiterate, section 1997(d) expressly precludes the recovery of any
and all attorney’s fees otherwise authorized by § 1988 that are not
“directly and reasonably incurred in proving an actual violation of
the plaintiff’s rights.” If fees-on-fees are not thus incurred,
they are not recoverable; if they are thus incurred, they are
subject to the cap. We acknowledge that subjecting fees-on-fees to
the restrictions enforced by § 1997e(d)(2) may well produce harsh
results in some cases, but that is indisputably what the
unambiguous language of the statute requires. Thus the district
court did not err in construing § 1997(d)(2) to include Volk’s
award of fees-on-fees in the statute’s limitation on the judgment
debtors’ responsibility for fees to 150 percent of the judgment.
III.
CONCLUSION
For the reasons explained above, the district court’s award of
attorney’s fees is, in all respects,
AFFIRMED.
15
Volk v. Gonzalez
Court: Court of Appeals for the Fifth Circuit
Date filed: 2001-09-06
Citations: 262 F.3d 528
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