IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________

No. 00-50439

__________________________

TIMOTHY J. VOLK,

Plaintiff-Appellant,

versus

JOSE G. GONZALEZ, Etc; ET AL,

Defendants,

G. MEGLARENO, Officers under their

individual and official capacity;

DONALDA FISCHER,

Defendants-Appellants.

___________________________________________________

Appeal from the United States District Court

For the Western District of Texas

___________________________________________________

September 6, 2001

Before JOLLY, SMITH, and WIENER, Circuit Judges.

WIENER, Circuit Judge:

This appeal arises out of a successful civil-rights suit

brought by Plaintiff-Appellant Timothy J. Volk, a prison inmate,

against the prison warden and eight correctional officers. Volk as

the prevailing party now seeks our review of the amount of

attorney’s fees awarded to him by the district court. Finding no

error, we affirm.

I.2 FACTS AND PROCEEDINGS

The procedural history of this case is lengthy and complex.

Volk, a Texas state prisoner, filed a 42 U.S.C. § 1983 civil-rights

suit against the prison warden and eight correctional officers at

his prison, alleging a violation of his right to be free from cruel

and unusual punishment. Counsel was subsequently appointed for

Volk, and all parties consented to proceed before a magistrate

judge (hereafter the “district court”). Volk filed an amended

complaint, adding two more defendants and a new allegation that he

had been retaliated against for exercising his right to petition

the court for redress of his grievances.

The case proceeded to trial, and the jury f ound that

Defendant-Appellee Guy Meglareno had violated Volk’s constitutional

right to be free from cruel and unusual punishment and that

Defendant-Appellee Donalda Fischer had violated Volk’s

constitutional right to petition the co urt for redress of his

grievances. Although it also found that the constitutional

violations had proximately caused Volk compensable injuries, the

jury awarded Volk “zero” dollars as damages.

The district court entered a judgment notwithstanding the

verdict, awarding Volk a total of two dollars in nominal damages

against Meglareno and Fischer. The court also granted in part

Volk’s post-trial motions for dec laratory and injunctive relief,

ordering that (1) two prison disciplinary cases against Volk be3

declared void and expunged from his rec ord, (2) Volk’s prior

custodial status be restored, and (3) particular good-time credits

that Volk had not received because of his reduction in custodial

status be awarded.

Volk filed a Fed. R. Civ. P. 59(e) motion for a new trial or

to alter or amend the judgment. He sought a new trial on (1) the

liability of the defendants, other than Meglareno, whom he had

charged with cruel and unusual punishment, and (2) his entitlement

to compensatory damages. Alternatively, Volk asked the district

court to alter the judgment by finding that all defendants charged

with cruel and unusual punishment were liable and by awarding him

compensatory damages of at least $1000 against all the defendants.

The court denied Volk’s Rule 59(e) motion.

Volk also filed a motion seeking attorney’s fees, costs, and

expenses. During the pendency of Volk’s lawsuit, Congress had

enacted the Prison Litigation Reform Act (“PLRA”) which, in ter

alia

, limits the amount of attorney’s fees recoverable by

successful prisoner civil-rights litigants. The relevant

provisions of the PLRA state:

In any action brought by a prisoner who is

confined to any jail, prison, or other

correctional facility, in which att orney's

fees are authorized under section 1988 of this

title, such 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 t o which a fee may be

awarded under section 1988 of this title; and

...the amount of the fee is proportionately1 42 U.S.C. § 1997e(d)(1)-(2) (emphasis added).

2 Volk v. Gonzalez , No. 98-50199 (5th Cir. Jan. 4, 2000).

4 related to the court ordered [sic] relief for

the violation; or the fee was directly and

reasonably incurred in enforcing the relief

ordered for the violation. Whenever a

monetary judgment is awarded in an action

described [above], a portion of the judgment

(not to exceed 25 percent) shall be applied to

satisfy the amount of attorney's fees awarded

against the defendant. I f the award of

attorney's fees is not greater than 150

percent of the judgment, the excess shall be

paid by the defendant

. 1

The district court determined that (1) an award of attorney’s fees

was appropriate; (2) the PLRA did not apply to the fee

calculations; (3) the amount of fees and costs requested by Volk

was reasonable; and (4) Volk should recover only one-half of the

requested attorney’s fees and l egal assistant fees because the

litigation was only partially successful. The court then awarded

Volk $27,300.63 in attorney’s fees and legal assistant fees , and

$658.52 in court costs.

Meglareno and Fischer appealed, challenging the district

court’s judgment notwithstanding the verdict, award of declaratory

and injunctive relief, and award of attorney’s fees. Volk crossappealed, contesting the denial of his Rule 59(e) motion and the

amount of his attorney’s fees award.

In an unpublished opinion 2 (“ Volk I ”), we affirmed the

judgment in part, vacated it in part, and reversed and remanded the5

case for further proceedings. In so doing, we determined that the

district cour t did not err in denying Meglareno and Fischer’s

requested instructi on on qualified immunity or in denying Volk’s

motion for a new trial on the issue of damages.

We also rejected Meglareno and Fischer’s insufficient-evidence

argument a nd, finding that neither defendant had the power to

effect the dist rict court’s directives, vacated its grant of

injunctive and declaratory relief. We did so, however, with the

express “understanding that the Texas Departmen t of Criminal

Justice —— Institutional Division will recognize the implications

of this court’s judgment for Volk’s custodial status.”

Finally , we concluded that the district court erred in not

applying the PLRA, which was enacted during the course of Volk’s

lawsuit, to the portion of his attorney’s fees incurred after the

statute’s effective date. Accordingly, we remanded the case “for

the magistrate judge to determine the award of attorney’s fees for

the work done after the PLRA’s effective date in light of

restrictions contained in the PLRA.” We stated that “the judgment

is reversed and remanded in part for determination of the award of

attorney’s fees.”

On remand from Volk I

, the district court ordered Volk to file

a supplemental brief or “advisory” regarding the proper calculation

of attorney’s fees in light of our remand order; and ordered

Meglareno and Fischer to file a responsive advisory. The court

explained that it would apply a PLRA provision that limited3 See 42 U.S.C. § 1997e(d)(3).

6 attorney’s fees to 150 percent of the hourly rate established for

court-appointed counsel in cri minal cases, 3 but noted that it did

not intend to apply a PLRA provision requiring a prisoner who

receives a money judgment to pay up to 25 percent of that judgment

toward his attorney’s fees. The district court’s order did not

mention the provision of the PLRA that limits the judgment debtor’s

liability for the successful prison er’s attorney’s fees to 150

percent of the monetary judgment.

No ting that in V olk I we had not ruled on his appellate

argument that the halving of his attorney’s fees was an abuse of

discretion, Volk’s advisory to the district court asserted that on

remand the court should not start from the position that the fees

should be halved. In their response, Meglareno and Fischer argued

that Volk was not entitled to any specified costs, any pre-PLRA

attorney’ s fees, any post-PLRA attorney’s fees exceeding 150

percent of the damages award, or any legal assistant fees.

The district court declined to reconsider the award of costs

to Volk or the order reducing the legal fees by half. Rather, the

court awarded Volk $3022.50 ( one-half of his pre-PLRA attorney’s

fees), $1.50 (the district court’s erroneous calcu lation of the

defendants’ l iability for Volk’s post-PLRA attorney’s fees and

legal assistant fees as limited by the PLRA provision restricting7

such liability to 150 percent of the damages award), and $725.25 in

costs.

Volk timely filed a Fed. R. Civ. P. Rule 59(e) motion for a

new trial or, in the alternative, to alter or amend the judgment.

He asserted that on remand from Volk I the district court erred as

a matter of law i n applying the 150-percent fee cap and that, in

any event, the cap would allow fees of $3.00, not $1.50. He also

insisted that he was entitled to a supplemental award of $3,186.01

for the additional attorney’s fees th at he incurred in the

subsequent litigation, which was made necessary by the acts of the

judgment debtors, for recovery of his initial attorney’s fees award

from them, and that this supplemental fee award should not be

subject to the 150-percent fee cap. In a supplemental Rule 59(e)

motion, Volk contended for the first time that the PLRA’s

limitation of a defendant’s responsibility for attorney’s fees to

150 perce nt of damages awarded violates the equal-protection

guarantee embedded in the Fifth Amendment.

The district court upheld the application of the 150-percent

fee cap specified in 42 U.S.C. § 1997e(d)(2) and determined that

the post-PLRA fee award in excess of $3.00 was unenforceable

against Meglareno and Fischer. After “[a]ssuming that [Volk’s]

equal protection challenge is an argument which may be raised on a

motion for a new trial,” th e court rejected that argument on the

groun d that Volk had failed to show that the 150-percent cap was

not rationally related to the PLRA’s goal of curtailing frivolous4 Volk initially appealed the district court’s rulin g on his

constitutional challenge, but waived that argument just before this

appeal was argued. Thus the constitutionality of 42 U.S.C. §

1997e(d)(2) is no longer before us.

5 Burroughs v. FFP Operating Partners

, 70 F.3d 31, 33 (5th Cir.

1995).

6 Id.

8 lawsuits. 4 The district court acknowledged that fees incurred in

seeking attorney’s fees (hereafter “fees-on-fees”) a ppear to be

recoverable under the PLRA, but observed that no court has held

that the 150 -percent fee cap is inapplicable to such fees. The

court granted Volk’s motion in part, amending its prior attorney’s

fees order by awarding post-PLRA fees in the amount of $3.00. This

appeal followed.

II.

ANALYSIS

A. Standard of Review

Our scope of review after rem and is limited. 5 “On a second

appeal following remand, the only issue f or consideration is

whether the court below reached its final decree in due pursuance

of [this court’s] previous opinion and mandate.” 6 The district

court’s discretion in awarding attorney’ s fees is broad, as

“[a]ppellate courts have only a limited opportunity to appreciate7 Hopwood v. Texas , 236 F.3d 256, 277 (5th Cir. 2000).

8 Id.

9 Riley v. City of Jackson , 99 F.3d 757, 759 (5th Cir. 1996).

9 the complexity of trying any given case and the level of

professional skill needed to prosecute it.” 7 Accordingly, we

review the district court’s award of attorney’s fees only for an

abuse of discretion. 8 The factual findings supporting an award of

attorney’s fees are reviewed for clear error; the conclusions of

law underlying the award are reviewed de novo

. 9

B. Pre-PLRA Attorney’s Fees

Volk contends that the district court abused its discretion by

halving his pre-PLRA attorney’s fees to reflect his l imited

success. To reiterate, in V olk I

, we remanded this case to the

district court with instructi ons to “determine the award of

attorney’s fees for work done after the PLRA’s effective date in

light of restrictions contained in the PLRA.” In reversing the

entire award of attorney’s fees, however, Volk I never ment ioned

t he pre-PLRA fee award, which both parties had challenged on

various grounds.

Not surprisingly, after Volk I ’s remand, the parties asked the

dist rict court to reconsider the original award of pre-PLRA

attorney’s fees. The district court, however, after “undertak[ing]10 The “lodestar” amount is calculated by multiplying the number

of hours reasonably expended on the litigation by a reasonable

hourly rate. See Hensley v. Eckerhart , 461 U.S. 424, 433 (1983).

The “lodestar” may then be adjusted according to the twelve factors

set forth in Johnson v. Georgia Hwy. Express, Inc. , 488 F.2d 714,

717 (5th Cir. 1974) (listing, inter alia

, the “amount involved and

the results obtained”).

11 See Albright v. Good Shepherd Hosp.

, 901 F.2d 438, 440 (5th

Cir. 1990). See also Montcalm Pub. Corp. v. Commonwealth of

Virginia

, 199 F.3d 168, 174 (4th Cir. 1999) (upholding award of 25

percent of requested attorney's fees in PLRA suit when the

plaintiff prevailed on only one of four claims).

10 a thorough review of all relevant pleadings filed both before and

a fter the appeal,” declined to “second-guess the trial court’s

original finding that fees should be awarded or that they should be

reduced by half to reflect partial success.”

In its original calculations, the district court had reduced

the “lodestar” am ount 10 by one-half because of Volk’s less-thancomplete success. Volk had sued eleven defendants for $130,000 in

damages but recovered a mere two dollars from two of the

defendants. Although civil-rights plaintiffs who obtain “excellent

results” need not prevail on every claim to be entitled to full

recovery of attorney’s fees, “those achieving limited or partial

success may recover only that which is reasonable in light of the

relief obtained.” 11 Furthermore, the Supreme Court has emphasized

that the degree of success obtained is “the most critical factor in

determining the reasonableness of a fee award,” and that “[i]n some

circumstances, even a plaintiff w ho formally ‘prevails’ . . .12 See Farrar v. Hobby , 506 U.S. 103, 144-45 (1992).

13 See Farrar

, 506 U.S. at 121 (O’Connor, J., concurring). S ee

also Riley v. City of Jackson, Miss.

, 99 F.3d 757, 760 (5th Cir.

1996) (hol ding that the district court abused its discretion by

awarding 3 perce nt of requested attorney’s fees after plaintiffs

recovered only nominal damages but succeeded in enjoining city from

enforcing unconstitutional media policies and guidelines with

respect to abortion clinic protests).

11 should receive no attorney’s fees at all.” 12

In its original order, the district court had stated,

In the instant case, the plaintiff sought much

more than monetary damages....During the

trial, it was apparent that plaintiff’s goal

was not only to recover monetary damages, but

h e also wanted to have his good-time earnin g

status restored to enhance the possibility

that he might be paroled. He appeared to

place a far greater value on his liberty,

i.e., being released from prison, than he did

on his request for monetary relief.

Ultimately, plaintiff prevailed on his claim

for declaratory re lief and had his good time

earning status and good-time credit restored.

The Court views plaintiff’s success as more

than trivial.

As the district court observed on remand, however, “it is clear

that the award of injunctive and dec laratory relief formed an

important part of the trial court’s decision to award any fees.”

Given that all injunctive and declaratory relief originally awarded

to Volk was vacated, his case is distinguishable from those he

cites for the proposition that when plaintiffs achieve the

“ultimate goal” of their litigation, “nominal relief does not

necessarily a nominal victory make.” 13 True enough, “in many

instances, a nominal recovery may very well not derogate from the14 See id. See also Hopwood

, 236 F.3d at 279 (no ting that

plaintiffs had achieved “‘the principal goal of their lawsuit’ by

striking down racial preferences in higher education admissions in

Texas,” but upholding district court’s 15-percent fee reduction for

lack of success because plaintiffs “did not receive any specific

injunctive or monetary relief for their own asserted injuries, and

they did not gain admission to the Law School”).

15 See Farrar , 506 U.S. at 121.

16 See Missouri v. Jenkins , 491 U.S. 274, 285 (1989).

17 42 U.S.C. § 1997e(d)(1) (emphasis added).

12 importance of the victory.” 14 That is especially so when private

civil-rights litigation serves the public purpose of vindicating

important rights on a large scale, even though large sums of money

may not be at stake. 15 This is not such a case, however, and the

district court did not abuse its discretion in awarding Volk onehalf of his pre-PLRA attorney’s fees to reflect his limited

success.

C. Application of the PLRA’s Fee Cap to Legal Assistant Fees

Volk also objects to the district court’s application of the

PLRA’s cap on attorney’s fees to limit his recovery of legal

assistant fees. The Supreme Court has made clear that legal

assistant fee s come under the rubric of “reasonable attorney’s

fee[s]” compensable under § 1988. 1 6 Section 1997e(d), however,

begins with the proposition that in any action brought by a

prisoner, fees authorized by § 1988 “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[.]” 1718 See Cruz v. Hauc k , 762 F.2d 1230, 1233 (5th Cir. 1985).

Section § 1988(b) provides: “[T]he court, in its discretion, may

allow the prevailing party, other than the United States, a

reasonable attorney’s fee as part of the costs[.]”

19 See Hernandez v. Kalinowski

, 146 F.3d 196, 199-201 (3d Cir.

1998).

13 Accordingly, as long as legal assistant fees satisfy §

1997e(d)’s requirement of being “directly and reasonably incurred

in proving an actual violation o f the plaintiff's rights,” such

fees are a compensable element of attorney’s fees under the PLRA

and therefore are subject to its strictures. In short, we conclude

that Volk’s position that the fee cap does not apply to legal

assistant fees is without merit.

D. Application of the PLRA’s Fee Cap to Fees-on-Fees

Finally, Volk challenges the district court’s application of

§ 1997e(d)(2)’s fee cap to limit his award of attorney’s fees

incurred in recovering attorney’s fees. As an initial matter, we

note that it is well settled that fees-on-fees are recoverable

under § 1988. 18 But whether § 1997e(d)(2)’s fee cap applies to such

fees is res nova in this circuit and, to our knowledge, in every

other circuit. We have not yet addressed the predicate question

whether fees-on-fees are even recoverable under § 1997e(d), but the

Third Circuit has answered that question in the affirmative. 19 It

held that an award of fees-on-fees is consistent with § 1997e(d)’s

mandate that only attorney’s fees that are “directly and reasonably20 Id. at 199.

21 Section 1988(b) provides for fees “[i]n any action

... to

enforce a provision of section[ ] ... 1983[.]” 42 U.S.C. §

1988(b).

22 See Hernandez , 146 F.3d at 200.

23 See id.

14 incurred in proving an actual violation of the plaintiff's rights”

be awarded in prisoner civil-rights litigation. 20 In reaching this

conclusion, the Third Circuit relied on the similarity between the

language in § 1988(b), which courts have construed to permit

recovery of fees-on-fees, 21 and the language in the PLR A, which

authorizes fees for proving an actual violation. 22 The Third

Circuit concluded that

[i]f Congress did not intend for attorneys to

be fully compensat ed 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...spent

proving the right to attorney's fees. 23

We acknowledge that the language of § 1997e(d) is not identical to

that of § 1988(b), yet we are comfortable with the Third Circuit’s

concl usion that there is no material difference between the

language of thes e two provisions. Accordingly, we join that

circuit in holding that fees-on-fees are “directly and reasonably

incurred in proving an actual violation of the plaintiff's rights”

and therefore recoverable under § 1997e(d).

Consequently, Volk’s argument that fees-on-fees are15

recoverable under § 1997e(d) but not subject to § 1997e(d)(2)’s fee

cap because they are not for “services rendered in reference to

establishing liability or damages” is hopelessly contradictory. To

reiterate, section 1997(d) expressly precludes the recovery of any

and all attorney’s fees otherwise authorized by § 1988 that are not

“directly and reasonably incurred in proving an actual violation of

the plaintiff’s rights.” If fees-on-fees are not thus incurred,

they are not recoverable; if they are thus incurred, they are

subject to the cap. We acknowledge that subjecting fees-on-fees to

the restrictions enforced by § 1997e(d)(2) may well produce harsh

results in some cases, but that is indisputably what the

unambiguous l anguage of the statute requires. Thus the district

court did not err in construing § 1997(d)(2) to include Volk’s

award of fees-on-fees in the statute’s limitation on the judgment

debtors’ responsibility for fees to 150 percent of the judgment.

III.

CONCLUSION

For the reasons explained above, the district court’s award of

attorney’s fees is, in all respects,

AFFIRMED.