Cody v. Hillard, 00-3918.

• Decision Date: 11 September 2002
• Docket Number: No. 00-3918.,00-3918.
• Citation: 304 F.3d 767
• Parties: William R. CODY, individually and on behalf of all others similarly situated, Plaintiff-Appellee, v. Carole HILLARD, President of the Board of Charities and Corrections; Frank Brost, Vice President; Ted Spaulding, Member; D.A. Gellhoff, Member; Lyle Swenson, Member; James Smith, Executive Secretary; Herman Solem, Warden of the South Dakota State Penitentiary; sued individually and in their official capacities, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

304 F.3d 767

William R. CODY, individually and on behalf of all others similarly situated, Plaintiff-Appellee, v. Carole HILLARD, President of the Board of Charities and Corrections; Frank Brost, Vice President; Ted Spaulding, Member; D.A. Gellhoff, Member; Lyle Swenson, Member; James Smith, Executive Secretary; Herman Solem, Warden of the South Dakota State Penitentiary; sued individually and in their official capacities, Defendants-Appellants.

No. 00-3918.

United States Court of Appeals, Eighth Circuit.

Submitted: December 14, 2001.

Filed: September 11, 2002.

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James E. Moore, argued, Sioux Falls, SD, for appellant.

Elizabeth Alexander, argued, Washington, DC (Tom Clayton, on the brief), for appellee.

Before McMILLIAN, JOHN R. GIBSON, and MAGILL, Circuit Judges.

JOHN R. GIBSON, Circuit Judge.

The Cody class¹ in this long-running prison civil rights litigation seeks attorneys' fees for counsel's work that culminated in a private settlement agreement dismissing the case without prejudice. Because the class had earlier obtained a consent decree lasting more than a decade, and because the parties' earlier practice had been for the defendants to pay the class's legal fees, the district court² awarded fees. The State appeals, and we affirm.

I.

The class members are South Dakota prisoners. Defendants are that state's main prison officials, whom we refer to as the State. In 1980 the class sued under 42 U.S.C. § 1983 to challenge conditions of confinement in several South Dakota prisons as violative of the Eighth and Fourteenth Amendments. After a bench trial, the district court held that numerous conditions in the prison system were unconstitutional. Cody v. Hillard, 599 F.Supp. 1025 (D.S.D.1984). In July 1985, the parties entered into a consent decree that set out remedies for many of the violations found by the court. The decree addressed prison environmental conditions, fire safety, medical and psychological care, and prisoners' access to the courts, among other subjects. The decree recited that its remedial provisions were "fairly supported by the evidence."

In the years that followed, the State paid attorneys' fees to the class on multiple occasions beginning at least as early as 1985. The State did not dispute the class's entitlement to fees, though the parties sometimes negotiated the reasonableness of particular fee and expense requests.

The court held evidentiary hearings in 1987 and 1992 to monitor the State's compliance with the consent decree. After the 1987 hearing the court entered a supplemental order outlining procedures to identify "deficiencies in compliance." After the 1992 hearing the court found that the State had failed to comply with the decree in certain respects relating to sanitary conditions in the prison and inmate fire safety. It entered supplemental remedial orders.

On April 16, 1996, the State, arguing that it was now in substantial compliance, moved under Fed.R.Civ.P. 60(b) to dissolve the consent decree and supplemental orders. The class opposed the motion. After submissions, but without an evidentiary hearing, the district court entered a two-paragraph order terminating the decree. The class appealed. We remanded, holding that the district court's order had not provided a sufficient factual or legal basis to explain its decision. Cody v. Hillard, 139 F.3d 1197, 1199-1200 (8th Cir. 1998). We noted that the record suggested "there [we]re still at least some violations of the [consent] decree." Id. at 1199.

After remand, before the district court entered any further ruling, the parties entered into a settlement agreement stipulating that the case would be dismissed without prejudice. Most of the agreement consists of promises by the State to take specific steps to improve prison conditions. The agreement contains no provision expressly discussing attorneys' fees.

The district court approved the settlement agreement on February 17, 2000. Cody v. Hillard, 88 F.Supp.2d 1049 (D.S.D.2000). Shortly thereafter, the class moved for an award of fees for the work its counsel had done since December 1, 1995. Over the State's opposition, the district court awarded most of the fees sought. The court held that the initial litigation had established the class's status as prevailing parties under 42 U.S.C. § 1988 (2000), entitling them to attorneys' fees for work done to enforce the relief ordered in the consent decree. The court further held that the work done by class counsel in monitoring the decree, resisting the State's motion to vacate it, and negotiating the settlement agreement upon remand was inextricably intertwined with the initial litigation. Finally, the court held that awarding fees did not violate the Prison Litigation Reform Act of 1996. The court applied the Prison Litigation Reform Act's hourly rate caps to the work done after the Act's effective date, and calculated a final fee award of $106,877.74.

The State appeals this award. It presents the same arguments it raised below: (1) that with respect to most of the work at issue here, the class was not a "prevailing party" under 42 U.S.C. § 1988; (2) that the award was contrary to the Prison Litigation Reform Act, which limits fees not "directly and reasonably incurred" in proving a violation, see 42 U.S.C. § 1997e(d)(1)(A) (2000); and (3) that the class waived any right to seek attorneys' fees by entering into a settlement agreement silent about fees. We consider each argument in turn.

II.

Under 42 U.S.C. § 1988, district courts may award attorneys' fees to the "prevailing party" in suits brought under 42 U.S.C. § 1983 and other civil rights statutes. A plaintiff who prevails under a statute covered by § 1988 is normally entitled to fees. Wray v. Clarke, 151 F.3d 807, 809 (8th Cir.1998). We review legal issues relating to fee awards de novo, the awards themselves for abuse of discretion. Jenkins v. Missouri, 127 F.3d 709, 713-14 (8th Cir.1997).

The Supreme Court recently clarified the meaning of "prevailing party" in Buckhannon Bd. & Care Home, Inc. v. West Va. Dep't of Health & Human Resources, 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). That case held that a plaintiff must secure a "judicially sanctioned change in the legal relationship of the parties" to qualify as a prevailing party. Id. at 605, 121 S.Ct. 1835.³ Buckhannon affirmed that a plaintiff who obtains either an enforceable judgment on the merits or a court-ordered consent decree has established the required judicially sanctioned change in legal relationship, and so is a prevailing party. Id. at 604, 121 S.Ct. 1835.

Here, the class obtained a court-ordered consent decree which governed the operation of the prison for twelve years. This was clearly a "judicially sanctioned change" in the parties' relationship that conferred prevailing party status on the class under Buckhannon. Id. at 605, 121 S.Ct. 1835.

Nevertheless, that a plaintiff has once established prevailing party status does not make all later work compensable. Compensability is subject to several limitations. First, the award of fees should take into account the degree of a plaintiff's success in the case as a whole. Jenkins, 127 F.3d at 718. Second, an earlier established prevailing party status extends to postjudgment work only if it is a "necessary adjunc[t] to the initial litigation." Id. at 716. Work that is more "like a new, separate lawsuit" requires a fresh determination of entitlement to fees. The test is whether the later issues litigated were "inextricably intertwined with those on which the plaintiff prevailed in the underlying suit." Id. at 717. Third, plaintiffs cannot over-litigate. Postjudgment litigation, like all work under the fee-shifting statutes, must be reasonable in degree. Hensley v. Eckerhart, 461 U.S. 424, 433-34, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). "[S]ervices that were redundant, inefficient, or simply unnecessary are not compensable." Jenkins, 127 F.3d at 716.

It is helpful to divide the period of time for which the class seeks fees into three phases. See Pennsylvania v. Delaware Valley Citizens' Council, 478 U.S. 546, 549, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986) (describing analysis by phases as "useful in protracted litigation"). In the first phase, the class seeks a small amount of fees for monitoring the State's compliance with the consent decree after December 1, 1995. This phase ended when the State filed its motion to dissolve the decree under Rule 60(b) on April 16, 1996. The second phase consists of the class's litigation before the district court and this court in opposition to the motion to dissolve. It culminates in our remand order of March 27, 1998, Cody v. Hillard, 139 F.3d 1197 (8th Cir.1998). Finally, the third phase is work done after the remand to negotiate and secure approval of the private settlement agreement. The district court approved the settlement on February 17, 2000, and this phase ends with the filing of the class's petition for fees on March 15, 2000.

One of the State's arguments against prevailing-party status applies to the entire period at issue. The district court's 1997 order said it "vacated" the consent decree and remedial orders in the case, rather than saying it "terminated" them. Some courts have expressly distinguished these terms. In construing the automatic termination provisions of the Prison Litigation Reform Act, the First Circuit stated that "`terminate' means `to put an end to' or `to end,' whereas `vacate' means `to annul' or `to render ... void.'" Inmates of Suffolk County Jail v. Rouse, 129 F.3d 649, 662 (1st Cir.1997) (internal citation omitted) (quoting Black's Law Dictionary 1471, 1548 (6th ed.1990)). The court thought this distinction "may well possess practical significance" in the context of prison civil rights litigation. Id. "While terminating a consent decree strips it of future potency," it observed, "the...