1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-13-1998

Hernandez v. Kalnowski

Precedential or Non-Precedential:

Docket 97-1734

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Recommended Citation

"Hernandez v. Kalnowski" (1998). 1998 Decisions. Paper 158.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/158
Filed July 13, 1998 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 97-1734 

SERGIO HERNANDEZ, 

 Appellant 

v. 

KALINOWSKI, SGT.; CLEMSON, C.O.; NOVOTNEY, CAPT.; 

JOHN DOE, C.O., I; JOHN DOE, C.O., II 

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

(D.C. No. 96-cv-06269) 

Argued: May 7, 1998 

BEFORE: SCIRICA, COWEN and BRIGHT,* 

Circuit Judges 

(Filed July 13, 1998) 

David Rudovsky, Esq. (Argued) 

 and Angus Love, Esq. 

Pennsylvania Institutional 

 Law Project 

924 Cherry Street, Suite 523 

Philadelphia, PA 19107 

Counsel for Appellant 

_________________________________________________________________ 

*Honorable Myron H. Bright, United States Circuit Judge for the 8th 

Circuit Court of Appeals, sitting by designation. 
 John G. Knorr, III, Esq. (Argued) 

 Office of Attorney General of 

 Pennsylvania 

 Department of Justice 

 Strawberry Square, 15th Floor 

 Harrisburg, PA 17120 

 Randall J. Henzes, Esq. 

 Office of Attorney General of 

 Pennsylvania 

 21 South Twelfth Street, Third Floor 

 Philadelphia, PA 19107 

 Counsel for Appellees 

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 S 803d, 42 U.S.C. S 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. 

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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. 

S 1988 as a "prevailing party." See Texas State Teachers 

Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791-92 

(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. 

S 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. S 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 (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. 

 3 
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. S 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 -- 

_________________________________________________________________ 

1. See, e.g., Student Pub. Interest Research Group of New Jersey v. AT&T 

Bell Labs., 842 F.2d 1436, 1455 (3d Cir. 1988); Prandini v. Nat'l Tea Co., 

585 F.2d 47, 53 (3d Cir. 1978); Glass v. Pfeffer, 849 F.2d 1261, 1266 

(10th Cir. 1988); Hernandez v. George, 793 F.2d at 269; Clark v. City of 

Los Angeles, 803 F.2d 987, 992 (9th Cir. 1986); Lund v. Affleck, 587 

F.2d 75, 77 (1st Cir. 1978); Souza v. Southworth, 564 F.2d 609, 614 (1st 

Cir. 1977). 

 4 
 (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 S 803(d), 42 U.S.C. S 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. 

S 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 PLRAS 803(d), 42 U.S.C. 

S 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 

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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 S 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 (1990) (construing the Equal Access to 

Justice Act to entitle successful plaintiffs to"fees on fees"). 

The language of 42 U.S.C. S 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 S 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 

money2) spent proving the right to attorney's fees.

Second, "fees on fees" must be included in 42 U.S.C. 

S 1997e(d)(1) under another rule of statutory interpretation, 

the whole act rule. The whole act rule directs that "[w]hen 

_________________________________________________________________ 

2. Benjamin Franklin in advice to a young tradesman said, "Remember 

time is money." Bartlett's Familiar Quotations 348 (Emily Morison Beck 

ed., 15th ed. 1980). 

 6 
`interpreting a statute, the court will not look merely to a 

particular clause in which general words may be used, but 

will take in connection with it the whole statute (or statutes 

on the same subject) and the objects and policy of the law, 

as indicated by its various provisions, and give to it such a 

construction as will carry into execution the will of the 

Legislature . . . .' " Kokoszka v. Belford, 417 U.S. 642, 650 

(1974) (quoting Brown v. Duchesne, 19 How. 183, 194

(1857)). "Congress enacted PLRA with the principal purpose 

of deterring frivolous prisoner litigation by instituting 

economic costs for prisoners wishing to file civil claims." 

Lyon v. Krol, 127 F.3d 763, 764 (8th Cir. 1997); see also 

141 Cong. Rec. S14419 (daily ed. Sept. 27, 1995) 

(statement of Sen. Abraham). At the same time, Congress 

preserved the rights of prisoners with valid claims to have 

access to an attorney and seek legal redress for meritorious 

claims by including the provision for attorney fees. This 

case was not frivolous. The result establishes that the 

prisoner's complaint had substantial merit. Nothing in the 

legislative history suggests that Congress intended to deter 

meritorious claims. Thus, an interpretation allowing "fees 

on fees" for meritorious claims serves Congress' intent. 

If "fees on fees" are not allowed under the PLRA, 

defendants will have an incentive to refuse to pay fees until 

formally ordered by a court. Defendants would be 

encouraged to create further litigation over fees that they 

rightfully owe to plaintiffs, and parties would be 

discouraged from settling such matters amongst 

themselves. Thus, disallowing plaintiffs to collect "fees on 

fees" would directly contravene the Congressional purpose 

behind the PLRA of minimizing frivolous litigation, and 

preserving judicial resources for meritorious claims. See 

Hensley, 461 U.S. at 437 ("A request for attorney's fees 

should not result in a second major litigation. Ideally, of 

course, litigants will settle the amount of a fee."). Thus, 

under the whole act rule, Congress must have intended to 

entitle successful plaintiffs to receive "fees on fees." 

Within the context generally of Civil Rights Acts awarding 

"fees on fees," the language of the PLRA would seem to 

provide for these types of fees also. In the ordinary civil 

rights case, a prevailing plaintiff has a right to collect 

 7 
attorney's fees and costs. The provisions for fees, for 

example under S 1988, are not self-effectuating. Litigation 

of fee petitions often becomes necessary to enforce that 

right. Similarly in prisoner civil rights cases, in order to 

prevent a defendant from effectively eroding the amount a 

plaintiff and his or her attorney ultimately collect, and to 

minimize unnecessary and frivolous litigation that may 

arise over fee awards, S 1997e(d)(1) of the PLRA must be 

interpreted to include "fees on fees." 

B. Appropriate Hourly Rate 

The district court correctly determined that the applicable 

hourly rates are $97.50 for in-court work and $67.50 for 

out-of-court work for attorney Love. According to 42 U.S.C. 

S 1997e(d)(3), the "reasonable" hourly rate for prisoner civil 

rights litigation cannot be "an hourly rate greater than 150 

percent of the hourly rate established under section 3006A 

of Title 18, for payment of court-appointed counsel." Id. 

Section 3006A(d)(1) of Title 18 establishes rates of $60 per 

hour for in-court time and $40 per hour for out-of-court 

time "unless the Judicial Conference determines that a 

higher rate of not in excess of $75 per hour is justified for 

a circuit . . . ." The rate established in the Eastern District 

of Pennsylvania is $65 per hour for in-court time and $45 

per hour for out-of-court time for court-appointed counsel. 

Thus, applying the 150% maximum, the appropriate rates 

are $97.50 for Love's in-court services and $67.50 for 

Love's out-of-court services. 

Hernandez claims that Love should be reimbursed at a 

rate of $187.50 based on the amount provided under 21 

U.S.C. S 848(q)(10)(A) for court-appointed counsel in capital 

cases.3 Hernandez argues that PLRA sets an hourly cap on 

attorney's fees set out at 18 U.S.C. S 3006A and the most 

logical reading of the statute would be to look at the highest 

rate allowed under S 3006A. Hernandez contends that

S 3006A references a plan created by district courts and 

_________________________________________________________________ 

3. Kalinowski argues that this argument should be rejected because 

Hernandez did not raise the argument at the district court. We note that 

this court ordinarily does not entertain issues raised for the first time 

on 

appeal. See Kneipp v. Tedder, 95 F.3d 1199, 1211 n.25 (3d Cir. 1996). 

Nevertheless, we will decide this argument on its merits. 

 8 
that 21 U.S.C. S 848 states that the plan can authorize 

payments to attorneys who represent defendants in capital 

cases in an amount exceeding that provided in S 3006A. We 

reject Hernandez's argument. 18 U.S.C. S 3006A does not 

cross-reference 21 U.S.C. S 848 and the statutes on their 

face are independent of one another. The plain reading of 

18 U.S.C. S 3006A(d)(1) establishes the hourly rate for 

court-appointed attorneys in the Eastern District of 

Pennsylvania, per adjustment by the United States Judicial 

Conference, at $65 per hour for in-court time and $45 per 

hour for out-of-court time. 

Alternatively, Hernandez argues that the applicable rate 

for Love's time should be $112.50 an hour. He argues that 

the United States Judicial Conference recently adjusted the 

rates in the Eastern District of Pennsylvania to $75 per 

hour for both in- and out-of-court time, and applying the 

150% limitation results in a rate of $112.50. We disagree 

with Love. Due to federal budgetary constraints, that rate 

was not yet implemented at any time during this litigation. 

Thus, we conclude the rates of $65 and $45 remain in force 

and apply in this case, and applying the 150% maximum, 

the appropriate rates are $97.50 for in-court services and 

$67.50 for out-of-court services. 

III. CONCLUSION 

For the foregoing reasons, we affirm the district court 

with respect to the hourly rate it used to calculate Love's 

reasonable fees. We reverse and remand to the district 

court with instructions to award Hernandez costs and fees 

for Love's time spent preparing and litigating the fee 

petition, including the reasonable time spent to appeal this 

issue. 

 9 
COWEN, Circuit Judge, concurring in part, dissenting in 

part. 

I join in Part II.B of the majority's opinion, which 

establishes the hourly rate for court-appointed attorneys in 

the Eastern District of Pennsylvania during the time period 

at issue in this case. Nonetheless, I am constrained to 

dissent from Part II.A of the majority opinion since I believe 

that attorney's fees and costs associated with the 

preparation and litigation of a fee application are not 

recoverable under the PLRA because they are not "directly 

and reasonably incurred in proving an actual violation of 

the plaintiff's rights . . . ." 42 U.S.C. S 1997e(d)(1)(A). I 

would therefore affirm the district court's judgment in all 

respects. 

Title 42 U.S.C. S 1988(b) provides that in federal civil 

rights actions "the court, in its discretion, may allow the 

prevailing party, other than the United States, a reasonable 

attorney's fee as part of the costs." Although this statute 

does not explicitly authorize the recovery of attorney's fees 

for time spent in preparing and litigating a fee petition, we 

have consistently held that such fees are recoverable under 

section 1988 and other similar fee-shifting provisions. See, 

e.g., Student Pub. Interest Research Group of New Jersey v. 

AT & T Bell Labs., 842 F.2d 1436, 1455 (3d Cir. 1988) 

(Clean Water Act); David v. City of Scranton, 633 F.2d 676, 

677 (3d Cir. 1980) (Section 1988); Prandini v. Nat'l Tea Co., 

585 F.2d 47, 53 (3d Cir. 1978) (Title VII). In Prandini, we 

reasoned that such an award was justified because 

 the time expended by attorneys in obtaining a 

 reasonable fee is justifiably included in the attorney's 

 fee application, and in the court's fee award. If an 

 attorney is required to expend time litigating his fee 

 claim, yet may not be compensated for that time, the 

 attorney's effective rate for all the hours expended on 

 the case will be correspondingly decreased. Recognizing 

 this fact, attorneys may become wary about taking Title 

 VII cases, civil rights cases, or other cases for which 

 attorney's fees are statutorily authorized. Such a result 

 would not comport with the purpose behind most 

 statutory fee authorizations, Viz, the encouragement of 

 attorneys to represent indigent clients and to act as 

 10 
 private attorneys general in vindicating congressional 

 policies. 

585 F.2d at 53 (citations omitted). 

However, the broad language of section 1988 must now 

be read in conjunction with the PLRA, which took effect on 

April 26, 1996. Consequently, in prisoner civil rights cases, 

attorney's 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 . . . ." 42 U.S.C.S 1997e(d)(1)(A). 

Contrary to the majority's holding, I believe that the 

attorney's fees and costs associated with preparing and 

litigating a fee petition are not "directly and reasonably 

incurred in proving an actual violation of the plaintiff's 

rights protected by a statute . . . ." Indeed, the Supreme 

Court has repeatedly observed that attorney-fee 

determinations are "collateral to the main cause of action 

and uniquely separable from the cause of action to be 

proved at trial." Landgraf v. USI Film Prods., 511 U.S. 244, 

277 (1994) (internal quotation marks omitted); see also 

Budinich v. Becton Dickinson & Co., 486 U.S. 196 (1988) 

("[W]e think it indisputable that a claim for attorney's fees 

is not part of the merits of the action to which the fees 

pertain. Such an award does not remedy the injury giving 

rise to the action . . . ."); White v. New Hampshire Dep't. of 

Employment Sec., 455 U.S. 445, 451-52 (1982) ("Nor can 

attorney's fees fairly be characterized as an element of 

`relief ' indistinguishable from other elements. Unlike other 

judicial relief, the attorney's fees allowed under S 1988 are 

not compensation for the injury giving rise to the action."). 

Thus, when Congress distinguished in the PLRA between 

work on the merits and work on fees, it was following a 

path already well-marked by the courts. Work on a fee 

petition is not work done "in proving an actual violation of 

. . . rights" within the meaning of section 1997e(d)(1)(A), 

and the district court was correct to disallow any such fees. 

I must respectfully dissent on this issue. 

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A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

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