Montcalm Publishing Corp. v. Commonwealth of Virginia, 99-6308

• Decision Date: 27 October 1999
• Docket Number: CA-92-696-,No. 99-6308,CA-92-907-R,99-6308
• Citation: 199 F.3d 168
• Parties: (4th Cir. 1999) MONTCALM PUBLISHING CORPORATION, Plaintiff-Appellant, and DONALD ARLIS HODGES; MICHAEL GLYNN FLORA, Plaintiffs, v. COMMONWEALTH OF VIRGINIA; RONALD ANGELONE, in his official capacity as Director of the Department of Corrections of the Commonwealth of Virginia; R. J. BECK; J. HORTON; R. A. YOUNG; E. C. MORRIS; MS. SUMMERS; JOHN DOE, 1 7, in their official capacities such fictitious names being designed to identify those VDOC employees whose true dentities are now unknown to plaintiff-intervenor, but who serve as (a) members of the VDOC Publication Review Committee, (2) Warden or Superintendent of Keen Mountain Correctional Center (KMCC), and (3) functional KMCC mail-room censor; J. Phippin; MR. BECK, Defendants-Appellees. (). . Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 168

199 F.3d 168 (4th Cir. 1999)

MONTCALM PUBLISHING CORPORATION, Plaintiff-Appellant and DONALD ARLIS HODGES; MICHAEL GLYNN FLORA, Plaintiffs, v. COMMONWEALTH OF VIRGINIA; RONALD ANGELONE, in his official capacity as Director of the Department of Corrections of the Commonwealth of Virginia; R. J. BECK; J. HORTON; R. A. YOUNG; E. C. MORRIS; MS. SUMMERS; JOHN DOE, 1 7, in their official capacities such fictitious names being designed to identify those VDOC employees whose true dentities are now unknown to plaintiff-intervenor, but who serve as (a) members of the VDOC Publication Review Committee, (2) Warden or Superintendent of Keen Mountain Correctional Center (KMCC), and (3) functional KMCC mail-room censor; J. Phippin; MR. BECK, Defendants-Appellees.

No. 99-6308 (CA-92-696-R, CA-92-907-R).

UNITED STATES COURT OF APPEALS, FOR THE FOURTH CIRCUIT.

Argued: October 27, 1999.

Decided: December 3, 1999.

Appeal from the United States District Court for the Western District of Virginia, at Roanoke.

Samuel G. Wilson, Chief District Judge.

[Copyrighted Material Omitted] COUNSEL ARGUED: Keith S. Orenstein, ORENSTEIN & ORENSTEIN, P.C., New York, New York, for Appellant. Mark Ralph Davis, Senior Assistant Attorney General, Criminal Division, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appellees. ON BRIEF: Mark L. Earley, Attorney General, Criminal Division, OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appellees.

Before WIDENER and MOTZ, Circuit Judges, and BUTZNER, Senior Circuit Judge.

Reversed and remanded by published opinion. Judge Motz wrote the opinion, in which Judge Widener and Senior Judge Butzner joined.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

This appeal presents questions as to whether, and to what extent, the limits on attorney's fees in the Prison Litigation Reform Act govern fees sought by a non-prisoner who intervenes in a case originally brought by a prisoner. We agree with the district court that the Act's fee caps do apply to the fees requested by the intervenor here. The district court, however, imposed these caps on all legal work performed throughout the course of litigation, both before and after the effective date of the Act. Because the Supreme Court's recent decision in Martin v. Hadix, 119 S. Ct. 1998 (1999), restricts the Act's reach to fees for services performed after its effective date, we must reverse and remand for further proceedings.

I.

In 1992, two inmates at Keen Mountain Correctional Center, Donald Hodges and Michael Flora, initiated this civil rights action by filing separate pro se complaints. They alleged that prison officials had violated their First Amendment rights by preventing them from receiving Gallery magazine because of its graphic, sexually explicit, and at least arguably obscene material. The district court denied the corrections officials' motion for summary judgment and referred the cases to a magistrate judge, who consolidated the two cases.

A year after the first pro se complaint was filed and prior to any evidentiary hearing, Montcalm Publishing Corporation, the publisher of Gallery, moved to intervene in the consolidated action. The magistrate judge granted that motion. Montcalm, too, challenged the correctional officials' refusal to distribute Gallery to the inmates. Montcalm alleged that Virginia Department of Corrections Division Operating Procedure 852 (DOP 852), which permits official interception of obscene publications, violated its First Amendment and due process rights. Specifically, Montcalm asserted that DOP 852 infringed on its rights: "(a) to be free from prior governmental restraints on the publication of Gallery magazine, (b) to be free from the outright suppression of its publication of Gallery magazine, (c) to be free from the arbitrary, capricious and invidious suppression of its publication of Gallery magazine, and (d) to adequate notice and a reasonable opportunity to be heard before its publication of Gallery magazine is restrained or suppressed by the government." Montcalm's Complaint ¶ 19.

The district court upheld the constitutionality of DOP 852 in all respects. See Hodges v. Virginia, 871 F. Supp. 873 (W.D. Va. 1994). Montcalm alone appealed to this court. On appeal, Montcalm argued only that DOP 852 violated its due process right to receive notice and an opportunity to be heard before its publications were disapproved for receipt by prisoners. We agreed with Montcalm on this issue and reversed. See Montcalm Publ'g Corp. v. Beck, 80 F.3d 105, 106 (4th Cir.), cert. denied, 519 U.S. 928 (1996). After the prison officials unsuccessfully petitioned for rehearing and for certiorari to the Supreme Court, the district court issued a memorandum opinion and order consistent with our mandate.

Montcalm then moved for an award of attorney's fees under 42 U.S.C. § 1988(b) (Supp. II 1996). That statute empowers a court to award reasonable attorney's fees to prevailing parties in federal civil rights actions. The district court found that Montcalm constituted a prevailing party entitled to reasonable attorney's fees under § 1988, but that all such fees were limited by the Prisoner Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(d) (Supp. II 1996). The PLRA provides that in certain cases "[n]o award of attorney's fees . . . shall be based on an hourly rate greater than 150 percent of the hourly rate established . . . for payment of court-appointed counsel." § 1997e(d)(3). The district court applied the PLRA's rate limits to all of Montcalm's requested fees for legal services provided over the entire course of the litigation. After determining that the number of hours for which Montcalm sought recovery was excessive, the district court granted Montcalm a reduced award.

Montcalm appeals, asserting that the district court improperly applied the PLRA to its attorney's fees award and erroneously reduced its compensable hours.

II.

Montcalm's first and principal argument is that the PLRA "does not operate as a limitation on the attorney's fees that may be recovered by a nonprisoner." Brief of Appellant at 10.

Montcalm notes the myriad provisions in the PLRA narrowing judicial relief available to prisoners, establishing new requirements for prisoners seeking such relief, and imposing penalties on prisoners bringing frivolous lawsuits. See Alexander S. v. Boyd, 113 F.3d 1373, 1379-80 n.6 (4th Cir. 1997) (summarizing various provisions of PLRA), cert. denied, 118 S. Ct. 880 (1998). Montcalm also relies on portions of the legislative history of the PLRA in which various legislators stated the view that the Act "contains several measures to reduce frivolous inmate litigation." See, e.g., 141 Cong. Rec. S14,317 (daily ed. Sept. 26, 1995) (statement of Sen. Abraham). The structure of the statute and its legislative history, Montcalm contends, "demonstrate[ ] that Congress intended the restrictions on the recovery of attorney's fees to be applicable solely to prisoners and their lawyers bringing lawsuits challenging the conditions of the prisoners' imprisonment." Brief of Appellant at 20.

Although the PLRA's structure and history are also consistent with a legislative desire to curb judicial involvement in the "daily operation of federal and state correctional facilities," Alexander S., 113 F.3d at 1379, certainly the statute's focus is to limit litigation brought by prisoners. Thus, Montcalm's argument that the statute applies "solely to prisoners" is not unreasonable. It is, however, an argument at odds with the plain language of the statute.

The PLRA expressly imposes limitations on the amount of attorney's fees awarded "[i]n any action brought by a prisoner who is confined to any jail, prison, or other correctional facility." 42 U.S.C. § 1997e(d)(1). Thus, Congress has mandated that statutory fee limits apply not "solely to prisoners" but to "any action brought by a prisoner." Unquestionably, the case at hand is one"brought by a prisoner." Indeed, two prisoners, Hodges and Flora, initiated this case; Montcalm merely intervened. Thus, application of the PLRA is inescapable.

Although this holding may seem harsh, it is dictated by Montcalm's decision not to bring an independent action but to intervene in the prisoners' action. Montcalm must now live with the consequences of that decision. Moreover, our holding accords with the general rule that "the intervenor is treated as if he were an original party." 7C Charles Alan Wright et al., Federal Practice and Procedure § 1920 (2d ed. 1986); see also 1 Mary F. Derfner & Arthur D. Wolf, Court Awarded Attorney's Fees ¶ 7.03 (1998) (explaining that intervenors are "generally eligible for an award of fees just as though they were an original party to the litigation").^*

III.

Much of the legal work in this case--that done at the trial level on the merits and on direct appeal--was performed prior to the effective date of the PLRA, April 26, 1996. In accordance with thencontrolling circuit precedent, see Alexander S. , 113 F.3d at 1388, the district court applied the PLRA caps to all of the fees requested by Montcalm.

After the district court ruled on Montcalm's petition for attorney's fees, however, the Supreme Court issued Martin v. Hadix, 119 S. Ct. 1998 (1999). The Court there held that the PLRA"limits attorney's fees with respect to postjudgment monitoring services performed after the PLRA's effective date but it does not so limit fees for postjudgment monitoring performed before the effective date." Id. at 2001 (emphasis added).

Neither party has briefed the significance of Hadix here. At oral argument counsel for the corrections officials, while acknowledging the rule enunciated in Hadix, suggested that it may not apply in the case at hand because in Hadix the prevailing parties' entitlement to reasonable fees was recognized in an order that substantially antedated the effective date of the PLRA. Thus, the reliance interest of the prevailing parties and their...