339 F.3d 582 (7th Cir. 2003), 00-3981, Johnson v. Daley

Docket Nº:00-3981
Citation:339 F.3d 582
Party Name:Johnson v. Daley
Case Date:August 19, 2003
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 582

339 F.3d 582 (7th Cir. 2003)

Cedric JOHNSON, Plaintiff-Appellee,


George M. DALEY, Defendant-Appellant,


United States of America, Intervenor-Appellant.

Nos. 00-3981, 00-4115.

United States Court of Appeals, Seventh Circuit

August 19, 2003

Argued April 19, 2001.

Reargued En Banc April 8, 2003.

David J. Harth (argued), Heller, Ehrman, White & McAulifee, Madison, WI, for Plaintiff-Appellee.

Robert M. Hunter, Office of the Attorney General Wisconsin Department of Justice, Madison, WI, Jonathan H. Levy (argued), Department of Justice Civil Division, Appellate Section, Washington, D.C. for Defendant-Appellant.

Randall C. Berg, Jr., Florida Justice Institute, Inc., for Amicus Curiae.


Page 583

EASTERBROOK, Circuit Judge.

Section 803(d) of the Prison Litigation Reform Act, codified at 42 U.S.C. § 1997e(d), sets both absolute and relative limits on attorneys' fee shifting. The district court held these limits unconstitutional because they disadvantage prisoners compared with other plaintiffs, whose recoveries u- PE 42 U.S.C. § 1988(b) in constitutional-tort litigation are not subject to any statutory maximum. Johnson v. Daley, 117 F.Supp.2d 889 (W.D.Wis.2000). Every court of appeals that has considered this question has held, to the contrary, that § 1997e(d) is within Congress' authority. See Boivin v. Black, 225 F.3d 36 (1st Cir. 2000); Hadix v. Johnson, 230 F.3d 840 (6th Cir. 2000); Walker v. Bain, 257 F.3d 660 (6th Cir. 2001); Foulk v. Charrier, 262 F.3d 687 (8th Cir. 2001); Madrid v. Gomez, 190 F.3d 990 (9th Cir. 1999); Jackson v. State Board of Pardons & Paroles, 331 F.3d 790 (11th Cir. 2003). Accord, Collins v. Algarin, 1998 WL 10234 (E.D.Pa. Jan. 9, 1998) 1998 U.S. Dist. Lexis 83, affirmed by an equally divided court under the name Collins v. Montgomery County Board of Prison Inspectors, 176 F.3d 679, 686 (3d Cir. 1999) (en banc). Like these other circuits, we hold that § 1997e(d) is rationally related to valid objectives and hence is within the legislative power, whether or not it is wise.


Section 1997e(d) provides:

(1) 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 [42 U.S.C. § 1988], 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 ...; and

(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 enforcing the relief ordered for the violation.

(2) Whenever a monetary judgment is awarded in an action described in paragraph (1), 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. (3) No award of attorney's fees in an action described in paragraph (1) shall be based on an hourly rate greater than 150 percent of the hourly rate established under [18 U.S.C. § 3006A] for payment of court-appointed counsel. (4) Nothing in this subsection shall prohibit a prisoner from entering into an agreement to pay an attorney's fee in an amount greater than the amount authorized under this subsection, if the fee is paid by the individual rather than by the defendant pursuant to [§ 1988].

Subsections (1) and (2) establish relative limits: fees must be "proportionately related to the court ordered relief" and, when monetary relief is awarded, the fees attributable to that relief cannot exceed 150% of the damages. Subsection (3) establishes an absolute limit at 150% of the hourly rate for defense counsel under the Criminal Justice Act, times the number of hours reasonably devoted to the litigation. Because the CJA rate (set by the Judicial Conference of the United States) currently is $90 per hour, the maximum that the defendant may be directed to underwrite

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is $135 per hour. [d] The total amount that an attorney may receive, however, is greater, not only because the attorney is entitled to 25% of the judgment under subsection (2) but also because the client is free under subsection (4) to agree by contract to pay more--out of the recovery or out of other assets.

This case shows how the statute works. Cedric Johnson sued George Daley, the medical director of the Bureau of Correctional Health Services for the Wisconsin Department of Corrections, under 42 U.S.C. § 1983, contending that Daley subjected him to cruel and unusual punishment by waiting three years before certifying that Johnson, whose alcoholism had damaged his liver, was eligible for a transplant at public expense. Johnson contended that Daley had been deliberately indifferent to his serious medical need. See Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). Johnson was put on the eligibility list in June 1999 and appears to have suffered no long-term injury from the delay. Nonetheless, a jury agreed with Johnson that he should have been made eligible sooner and awarded him $10,000 in compensatory damages, plus $30,000 in punitive damages. Attorneys from Foley & Lardner and Heller Ehrman White & McAuliffe represented Johnson at the district judge's request; Johnson did not enter into an agreement with counsel under § 1997e(d)(4), so compensation depends entirely on the application of subsections (1) through (3). Counsel asked the judge to direct Daley to pay $92,997.20 in attorneys' fees. This request exceeds both relative and absolute maximums: the relative cap under subsection (2) is $60,000 in fees (150% of the judgment), and application of the absolute cap in subsection (3) produces a lower award of $36,451.50. (This figure comes from Johnson's lawyers. Daley and the United States have not questioned its accuracy, nor have we plumbed the details of its calculation.) Counsel sought compensation for 525.1 hours of work--much of it by paralegals with rates under $135 per hour, but some time by partners who contended that their market rate is as high as $325 per hour. Daley did not deny that this legal time had been reasonably devoted to the case, though he did dispute the hourly rates.

Under § 1997e(d) counsel could receive a maximum of $46,451.50 for legal services--$10,000 from the award plus $36,451.50 extra from Daley. As we read

Page 585

subsection (2), attorneys' compensation comes first from the damages, as in ordinary tort litigation, and only if 25% of the award is inadequate to compensate counsel fully may defendant be ordered to pay more under § 1988. Cf. Gisbrecht v. Barnhart, 535 U.S. 789, 122 S.Ct. 1817, 152 L.Ed.2d 996 (2002) (using this approach in Social Security cases, where any excess would be provided by the Equal Access to Justice Act, 28 U.S.C. § 2412(d), rather than § 1988). The district court proceeded in a different way, first calculating counsel's entitlement and then determining how much of this should be satisfied from the damages. After notifying the United States, which intervened to defend the constitutionality of the statute, the district court declined to enforce subsections (2) and (3). Subsection (1)(B)(i), which provides that fees must be "proportionately related" to the violation, is in the district court's view an appropriate cap--because the judge gets to determine how high a "proportion" to use. The court concluded that attorneys' fees should be set at $80,000, or 200% of the judgment, under § 1988, writing that this level is not disproportionate to the damages. Next the judge held that Johnson should contribute only $200 of this out of the judgment, leaving him with $39,800 while Daley has been ordered to pay a total of $128,578.81: $10,000 in compensatory damages, $30,000 in punitive damages, $79,800 in attorneys' fees, and $8,778.81 in costs. The record does not disclose how much, if any, of this tab will be picked up by the State of Wisconsin as Daley's employer. Both Daley and the United States have appealed; the appeal is limited to the amount by which the attorneys' fees exceed the maximum allowed by § 1997e(d)(2) and (3). Counsel have not cross-appealed to seek a greater portion of the damages awarded to Johnson.



The district court held that § 1997e(d)(2) and (3) are incompatible with the due process clause of the fifth amendment, which since Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954), has been deemed to include an equal-protection principle. See, e.g., Vance v. Bradley, 440 U.S. 93, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979). Yet the Prison Litigation Reform Act (PLRA from now on) does not rest on any of the powers granted by Article I of the Constitution; its genesis is § 5 of the fourteenth amendment, which says that "Congress shall have power to enforce, by appropriate legislation, the provisions of this article." Legislation under the power granted by § 5 is not necessarily subject to limitations on the original grants of national power; this is why Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976), holds that Congress may use its § 5 power to subject states to suit in federal court, despite the contrary text of the eleventh amendment. So the question to ask is whether § 1997e(d) "enforces" the fourteenth amendment, which points us to the equal protection clause in § 1 of that amendment without any need to detour through the fifth...

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