Hernandez v. Kalinowski

• Decision Date: 13 July 1998
• Docket Number: No. 97-1734,97-1734
• Citation: 146 F.3d 196
• Parties: Sergio HERNANDEZ, Appellant, v. KALINOWSKI, Sgt.; Clemson, C.O.; Novotney, Capt.; John Doe, C.O., I; John Doe, C.O., II.
• Court: U.S. Court of Appeals — Third Circuit

Page 196

146 F.3d 196

Sergio HERNANDEZ, Appellant, v. KALINOWSKI, Sgt.; Clemson, C.O.; Novotney, Capt.; John Doe, C.O., I; John Doe, C.O., II.

No. 97-1734.

United States Court of Appeals Third Circuit.

Argued May 7, 1998.

Decided July 13, 1998.

David Rudovsky (Argued) and Angus Love, Pennsylvania Institutional Law Project, Philadelphia, PA, for Appellant.

John G. Knorr, III (Argued), Office of Attorney General of Pennsylvania, Department of Justice, Harrisburg, PA, Randall J. Henzes, Office of Attorney General of Pennsylvania, Philadelphia, PA, for Appellees.

Before: SCIRICA, COWEN and BRIGHT, ^* Circuit Judges.

OPINION OF THE COURT

BRIGHT, Circuit Judge.

This case presents the question whether under the Prison Litigation Reform Act an attorney who has successfully represented a prisoner in a civil rights action is entitled to attorney fees for time spent on the fee petition. This opinion appears to be the first in the United States Courts of Appeal to address this important question which arises under the Prison Litigation Reform Act ("PLRA"), particularly § 803d, 42 U.S.C. § 1997e(d). In addition, appellant Hernandez seeks an increase in the hourly rate for the fees. We reverse on the issue of "fees on fees" and otherwise affirm.

I. BACKGROUND

On November 11, 1994, Sergio Hernandez, an inmate at the State Correctional Institute at Frackville, Pennsylvania, suffered serious injuries when his cellmate stabbed him multiple times with a razor. Hernandez had warned several officers of the Pennsylvania Department of Corrections of his danger prior to the attack, but the officers failed to take reasonable steps to protect him from his cellmate. Hernandez filed suit on September 16, 1996, seeking damages for violation of his Eighth Amendment rights.

The district court held a bench trial on May 27, 1997. The court granted judgment as a matter of law under Rule 50 of the Federal Rules of Civil Procedure against several of the defendants. On May 30, 1997, after announcing its findings of fact and conclusions of law, the court entered a $17,500 judgment against defendant Sergeant Andrew Kalinowski. Angus R. Love ("Love") represented Hernandez throughout the proceedings. Love initially informally requested costs and attorney's fees from Kalinowski, but Kalinowski rejected the request. Hernandez then formally moved the district court to award attorney's fees and costs, requesting a total of $22,680.90.

The district court determined that Love was entitled to attorney's fees under the traditional auspices of 42 U.S.C. § 1988 as a "prevailing party." See Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791-92, 109 S.Ct. 1486, 103 L.Ed.2d 866 (1989). The district court noted, however, that the PLRA limits fee awards in prisoner cases to those instances where "the fee was directly and reasonably incurred in proving an actual violation of the plaintiff's rights...." 42 U.S.C. § 1997e(d)(1)(A). Thus, the district court examined Love's fee request and applied the lodestar analysis to calculate the amount of "direct and reasonable" fees. See Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir.1990). Specifically, the district court multiplied (1) the number of hours reasonably expended on the action by (2) the reasonable hourly rates to reach the "lodestar." See id.

First, the district court determined the applicable reasonable hourly rates by applying the statutory scheme provided under 42 U.S.C. § 1997e(d)(3), to reach $67.50 for Love's out-of-court services and $97.50 for his in-court services. Second, the district court calculated the reasonable time expended. The court concluded that an across-the-board reduction of 10% applied to Love's fees because Hernandez did not succeed on his claims against two of the defendants. See Hensley v. Eckerhart, 461 U.S. 424, 440, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (noting that an overall reduction in the fee is appropriate where the plaintiff achieved "only limited success"). Furthermore, the district court completely denied Love's fees for time spent preparing the fee petition concluding that the PLRA did not authorize fees for preparing a fee petition.

The court ultimately awarded Hernandez a total of $10,131.64 to pay Love's fees and $554.00 to pay costs. Hernandez appeals this award, challenging both the applicable hourly rates and the court's denial of fees relating to the fee petition. We give plenary review to the statutory construction of the PLRA. Chrysler Credit Corp. v. First Nat'l Bank & Trust Co., 746 F.2d 200, 202 (3d Cir.1984).

Hernandez argues the district court erred when it denied him fees for the time Love spent preparing the fee petition. Generally, under the Civil Rights Attorney's Fees Awards Act of 1976 ("CRAFAA"), 42 U.S.C. § 1988, fees for preparing a motion requesting costs and fees, or "fees on fees," are recoverable. Hernandez v. George, 793 F.2d 264, 269 (10th Cir.1986). The purpose of the CRAFAA is to ensure effective access to the judicial process for persons with civil rights claims, and to encourage litigation to enforce the provisions of the civil rights acts and constitutional civil rights provisions. Thus, courts consistently have interpreted fee shifting statutes, including the CRAFAA, to provide for reasonable fees for all time spent in the vindication of statutory or constitutional rights, including fees related to the preparation and litigation of motions for attorney's fees under the Act. ¹

The district court concluded, however, that the PLRA does not explicitly authorize an award for "fees on fees." The relevant portion of the PLRA reads:

(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 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

(B)(I) the amount of the fee is proportionately re lated 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.

PLRA § 803(d), 42 U.S.C. § 1997e(d). The district court concluded that Congress failed to explicitly provide for fee petition awards within the plain language of the PLRA and therefore "fees on fees" are not recoverable. We reject this interpretation.

II. DISCUSSION

A. Attorney's Fees for Time Spent Preparing the Fee Petition

We first examine the language of the statute. Although the phrase "fees on fees" appears nowhere within 42 U.S.C. § 1997e(d)(1), the PLRA provides for fees which are "directly and reasonably incurred in proving an actual violation of the plaintiff's rights" and are either "proportionately related to the court ordered relief for the violation; or ... directly and reasonably incurred in enforcing the relief ordered...." Thus, the key is determining if "fees on fees" are included within the meaning of fees "directly and reasonably incurred in proving an actual violation of the plaintiff's rights...." See PLRA § 803(d), 42 U.S.C. § 1997e(d)(1).

In our view, fees for time spent in preparing a fee petition are included within the meaning of "fee[s] directly and reasonably incurred in proving an actual violation...." Otherwise the attorney's fee to which he or she is entitled by law is in fact diminished. For example, assume a plaintiff succeeds on the merits of a civil rights claim and, in doing so, incurs $10,000 in "direct and reasonable" costs and attorney's fees. That fee represents the attorney's time expended. Further assume that the plaintiff's attorney is forced to spend an additional $2000 in time to compel the defendant to pay the $10,000 costs and fees owed. If the plaintiff is not allowed to recover the "fees on fees," the plaintiff would not receive the $2000 to pay the attorney. In the case of an impecunious plaintiff, as most prisoners are, the end result would be that the attorney would in fact receive a fee based on time that is less than that authorized by law. To avoid this erosion of an award of attorney's fees, courts have traditionally interpreted § 1988 to allow for "fees on fees" to guarantee a full recovery of fees.

General rules of statutory construction support reading the PLRA to provide for "fees on fees." First, Congress must clearly express its intent to change a well-established common law construction. Bauers v. Heisel, 361 F.2d 581, 587 (3d Cir.1966) (en banc). As previously stated, courts consistently have construed the Civil Rights Acts to provide for "fees on fees" despite the absence of clear Congressional directives within those Acts. See Commissioner, I.N.S. v. Jean, 496 U.S. 154, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990) (construing the Equal Access to Justice Act to entitle successful plaintiffs to "fees on fees"). The language of 42 U.S.C. § 1988(b) provides for fees "[i]n any action ... to enforce a provision of section[ ] ... 1983...." This language which has allowed for "fees on fees" does not differ significantly from the language in the PLRA authorizing fees for proving an actual violation. In passing the PLRA, Congress knew that fee petitions are a necessary predicate to a fee award and that the courts have interpreted § 1988 to allow for reimbursement for fees for the work done on fee petitions. If 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 (which to a lawyer is money ²) spent proving the right to attorney's fees.

Second, "fees on fees" must be included in 42 U.S.C. § 1997e(d)(1) under another rule of statutory...