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. e du/thir dc ir c uit_1998/158Filed 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 J udge 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 P rison Litigation Reform Act an attorney who has successfu lly represented a prisoner in a civil rights action is entitled to attorney fees for time spent on the fee petition. T his opinion appears to be the first in the United States Courts of Appeal to address this important question which ari ses under the Prison Litigation Reform Act ("PLRA"), particularly S 803d, 42 U.S.C. S 1997e(d). In addit ion, appellant Hernandez seeks an increase in the hourly rate
for the fees. We reverse on the issue of "fees on f ees" and
otherwise affirm.

I. BACKGROUND

On November 11, 1994, Sergio Hernandez, an inmate a t the State Correctional Institute at Frackville, Pen nsylvania, suffered serious injuries when his cellmate stabbed him multiple times with a razor. Hernandez had warned s everal officers of the Pennsylvania Department of Correcti ons of his danger prior to the attack, but the officers fa iled 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 right s.

2The district court held a bench trial on May 27, 19 97.

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 i ts findings of fact and conclusions of law, the court entered a $17,500 judgment against defendant Sergeant Andrew Kalinowski. Angus R. Love ("Love") represented Hern andez throughout the proceedings. Love initially informal ly requested costs and attorney's fees from Kalinowski , but Kalinowski rejected the request. Hernandez then for mally moved the district court to award attorney's fees a nd costs, requesting a total of $22,680.90.

The district court determined that Love was entitle d to attorney's fees under the traditional auspices of 4 2 U.S.C. S 1988 as a "prevailing party." See Texas State Tea chers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 7 91-92 (1989). The district court noted, however, that the PLRA limits fee awards in prisoner cases to those instan ces where "the fee was directly and reasonably incurred in pr oving 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 calcul ate 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." Se e id.

First, the district court determined the applicable reasonable hourly rates by applying the statutory s cheme provided under 42 U.S.C. S 1997e(d)(3), to reach $6 7.50 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 aga inst two of the defendants. See Hensley v. Eckerhart, 46 1 U.S. 424, 440 (1983) (noting that an overall reduction i n the fee is appropriate where the plaintiff achieved "only l imited success"). Furthermore, the district court complete ly denied Love's fees for time spent preparing the fee petiti on concluding that the PLRA did not authorize fees for preparing a fee petition.

3The court ultimately awarded Hernandez a total of

$10,131.64 to pay Love's fees and $554.00 to pay co sts. Hernandez appeals this award, challenging both the applicable hourly rates and the court's denial of f ees relating to the fee petition. We give plenary revie w 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 d enied him fees for the time Love spent preparing the fee petition. Generally, under the Civil Rights Attorney's Fees A wards Act of 1976 ("CRAFAA"), 42 U.S.C. S 1988, fees for preparing a motion requesting costs and fees, or "f ees 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 litigati on to enforce the provisions of the civil rights acts and constitutional civil rights provisions. Thus, court s consistently have interpreted fee shifting statutes , including the CRAFAA, to provide for reasonable fees for all time spent in the vindication of statutory or constituti onal rights, including fees related to the preparation a nd litigation of motions for attorney's fees under the Act.1

The district court concluded, however, that the PLR A 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 corre ctional facility, in which attorney's fees are autho rized under section 1988 of this title, such fees shall not be awarded, except to the extent that --

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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); Pra ndini v. Nat'l Tea Co., 585 F.2d 47, 53 (3d Cir. 1978); Glass v. Pfeffer, 8 49 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); Lun d v. Affleck, 587 F.2d 75, 77 (1st Cir. 1978); Souza v. Southworth, 5 64 F.2d 609, 614 (1st Cir. 1977).

4(A) The fee was directly and reasonably incu rred in

proving an actual violation of the plaintiff 's rights protected by a statute pursuant to which a f ee may be awarded under section 1988 of this title; and

(B)(I) the amount of the fee is proportionat ely re lated
to the court ordered relief for the violatio n; or

(ii) the fee was directly and reasonably inc urred in enforcing the relief ordered for the violati on.

PLRA S 803(d), 42 U.S.C. S 1997e(d). The district c ourt concluded that Congress failed to explicitly provid e for fee petition awards within the plain language of the PL RA and

therefore "fees on fees" are not recoverable. We re ject this interpretation.

II. DISCUSSION

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

We first examine the language of the statute. Altho ugh 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 violat ion of the plaintiff's rights" and are either "proportiona tely related to the court ordered relief for the violation; or . . . directly and reasonably incurred in enforcing the relief ord ered . . . ." Thus, the key is determining if "fees on f ees" 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 reasonab le" costs and attorney's fees. That fee represents the attorn ey's time expended. Further assume that the plaintiff's attor ney is forced to spend an additional $2000 in time to comp el the

5defendant to pay the $10,000 costs and fees owed. I f the

plaintiff is not allowed to recover the "fees on fe es," the plaintiff would not receive the $2000 to pay the at torney. In the case of an impecunious plaintiff, as most priso ners 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 attorn ey's fees, courts have traditionally interpreted S 1988 to all ow for "fees on fees" to guarantee a full recovery of fees

.

General rules of statutory construction support rea ding the PLRA to provide for "fees on fees." First, Cong ress must clearly express its intent to change a well-establi shed 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 t o provide for "fees on fees" despite the absence of clear Con gressional directives within those Acts. See Commissioner, I.N .S. v. Jean, 496 U.S. 154 (1990) (construing the Equal Acc ess to Justice Act to entitle successful plaintiffs to"fee s on fees"). The language of 42 U.S.C. S 1988(b) provides for fe es "[i]n any action . . . to enforce a provision of section[ ] . . . 1983 . . . ." This language which has allowed for"fees o n fees" does not differ significantly from the language in the PLRA authorizing fees for proving an actual violation. I n passing the PLRA, Congress knew that fee petitions are a ne cessary predicate to a fee award and that the courts have interpreted S 1988 to allow for reimbursement for f ees for the work done on fee petitions. If Congress did not intend for attorneys to be fully compensated for their wor k on civil rights claims for prisoners, Congress needed to exp licitly express an intent to change the established constru ction 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 inter pretation,
the whole act rule. The whole act rule directs that "[w]hen

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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 me rely to a

particular clause in which general words may be use d, 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 insti tuting economic costs for prisoners wishing to file civil claims." Lyon v. Krol, 127 F.3d 763, 764 (8th Cir. 1997); se e also 141 Cong. Rec. S14419 (daily ed. Sept. 27, 1995) (statement of Sen. Abraham). At the same time, Cong ress preserved the rights of prisoners with valid claims to have access to an attorney and seek legal redress for me ritorious 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 allowin g "fees on fees" for meritorious claims serves Congress' in tent.

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 t hat 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 p urpose behind the PLRA of minimizing frivolous litigation, and preserving judicial resources for meritorious claim s. See Hensley, 461 U.S. at 437 ("A request for attorney's fees should not result in a second major litigation. Ide ally, of course, litigants will settle the amount of a fee." ). Thus, under the whole act rule, Congress must have intend ed to entitle successful plaintiffs to receive "fees on f ees."

Within the context generally of Civil Rights Acts a warding "fees on fees," the language of the PLRA would seem to provide for these types of fees also. In the ordina ry civil rights case, a prevailing plaintiff has a right to collect

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

example under S 1988, are not self-effectuating. Li tigation 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 am ount a plaintiff and his or her attorney ultimately collec t, and to minimize unnecessary and frivolous litigation that may arise over fee awards, S 1997e(d)(1) of the PLRA mu st be interpreted to include "fees on fees."

B. Appropriate Hourly Rate

The district court correctly determined that the ap plicable hourly rates are $97.50 for in-court work and $67.5 0 for out-of-court work for attorney Love. According to 4 2 U.S.C. S 1997e(d)(3), the "reasonable" hourly rate for pri soner civil rights litigation cannot be "an hourly rate greater than 150 percent of the hourly rate established under sectio n 3006A of Title 18, for payment of court-appointed counsel ." Id. Section 3006A(d)(1) of Title 18 establishes rates o f $60 per hour for in-court time and $40 per hour for out-of- court
time "unless the Judicial Conference determines tha t a higher rate of not in excess of $75 per hour is jus tified for
a circuit . . . ." The rate established in the East ern District of Pennsylvania is $65 per hour for in-court time a nd $45 per hour for out-of-court time for court-appointed counsel. Thus, applying the 150% maximum, the appropriate ra tes 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 c ap on attorney's fees set out at 18 U.S.C. S 3006A and th e 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 court s and

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3. Kalinowski argues that this argument should be r ejected because Hernandez did not raise the argument at the distric t court. We note that this court ordinarily does not entertain issues rai sed 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 m erits.

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

payments to attorneys who represent defendants in c apital cases in an amount exceeding that provided in S 300 6A. 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 read ing of 18 U.S.C. S 3006A(d)(1) establishes the hourly rate for court-appointed attorneys in the Eastern District o f Pennsylvania, per adjustment by the United States J udicial 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 argue s that the United States Judicial Conference recently adju sted the rates in the Eastern District of Pennsylvania to $7 5 per hour for both in- and out-of-court time, and applyi ng the 150% limitation results in a rate of $112.50. We di sagree with Love. Due to federal budgetary constraints, th at rate was not yet implemented at any time during this lit igation. Thus, we conclude the rates of $65 and $45 remain i n force and apply in this case, and applying the 150% maxim um, the appropriate rates are $97.50 for in-court servi ces and $67.50 for out-of-court services.

III. CONCLUSION

For the foregoing reasons, we affirm the district c ourt with respect to the hourly rate it used to calculat e Love's
reasonable fees. We reverse and remand to the distr ict
court with instructions to award Hernandez costs an d fees for Love's time spent preparing and litigating the fee petition, including the reasonable time spent to ap peal this
issue.

9COWEN, Circuit Judge, concurring in part, dissentin g in

part.

I join in Part II.B of the majority's opinion, whic h establishes the hourly rate for court-appointed att orneys in the Eastern District of Pennsylvania during the tim e period at issue in this case. Nonetheless, I am constraine d to dissent from Part II.A of the majority opinion sinc e 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 "di rectly and reasonably incurred in proving an actual violat ion of the plaintiff's rights . . . ." 42 U.S.C. S 1997e(d )(1)(A). I would therefore affirm the district court's judgmen t in all
respects.

Title 42 U.S.C. S 1988(b) provides that in federal civil rights actions "the court, in its discretion, may a llow the prevailing party, other than the United States, a r easonable attorney's fee as part of the costs." Although this statute does not explicitly authorize the recovery of attor ney's fees for time spent in preparing and litigating a fee pe tition, we have consistently held that such fees are recoverab le under section 1988 and other similar fee-shifting provisi ons. See, e.g., Student Pub. Interest Research Group of New J ersey v. AT & T Bell Labs., 842 F.2d 1436, 1455 (3d Cir. 198 8) (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 Pran dini, we reasoned that such an award was justified because

the time expended by attorneys in obtaining a reasonable fee is justifiably included in th e attorney's fee application, and in the court's fee awar d. If an attorney is required to expend time litigati ng his fee claim, yet may not be compensated for that t ime, 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 t aking Title VII cases, civil rights cases, or other case s for which attorney's fees are statutorily authorized. Such a result would not comport with the purpose behind mo st statutory fee authorizations, Viz, the encou ragement of attorneys to represent indigent clients and to act as

10private attorneys general in vindicating con gressional

policies.

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

However, the broad language of section 1988 must no w be read in conjunction with the PLRA, which took ef fect on April 26, 1996. Consequently, in prisoner civil rig hts cases, attorney's fees "shall not be awarded, except to th e extent that . . . the fee was directly and reasonably incu rred in proving an actual violation of the plaintiff's righ ts protected by a statute pursuant to which a fee may be awarded under
section 1988 of this title . . . ." 42 U.S.C.S 1997 e(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 rea sonably incurred in proving an actual violation of the plai ntiff'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 (1 988) ("[W]e think it indisputable that a claim for attor ney's fees is not part of the merits of the action to which th e fees pertain. Such an award does not remedy the injury g iving rise to the action . . . ."); White v. New Hampshir e Dep't. of Employment Sec., 455 U.S. 445, 451-52 (1982) ("Nor can attorney's fees fairly be characterized as an eleme nt of `relief ' indistinguishable from other elements. Un like 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 betwe en work on the merits and work on fees, it was followi ng a path already well-marked by the courts. Work on a f ee petition is not work done "in proving an actual vio lation 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.

11A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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