William H. Rehnquist: We'll hear argument first this morning in No. 98-262, Bill Martin v. Everett Hadix. Mr. Casey.
Thomas L. Casey: Mr. Chief Justice, and may it please the Court: Congress intended the PLRA attorney's fee cap to apply to cases precisely like the two before the Court this morning. Congress intended not only to limit frivolous claims in cases and to limit Federal court involvement in the details of State prison management, but it also intended to relieve States of some of the financial burden of such cases and, in particular, some of the financial burden of attorney's fees ancillary to such cases. 42 U.S.C. 1988 provides that a district court may allow reasonable fees to prevailing parties. The PLRA, in effect, has defined prevailing party and reasonable fee.
Antonin Scalia: Mr. Casey, some of the fees in this case are not... reasonable fees to prevailing party. I normally think it applies to the... the fees that have been expended in the course of the litigation before the judgment. But some of these fees were for the purpose of policing the injunction after it was issued?
Thomas L. Casey: That's correct.
Antonin Scalia: The attorneys' efforts undertaken in... do the courts have the power to do that, to sort of hire, you know, a private marshals force to... to see that their injunctions are being complied with? Is this a common practice? I frankly was unaware of it.
Thomas L. Casey: My understanding is that it is a common practice. Once a consent decree or a judgment after trial has been entered, the district court frequently retains jurisdiction to monitor compliance. Remedial orders are entered, and the court monitors compliance. In Michigan, we've had these remedial orders--
Antonin Scalia: Oh, I now it monitors compliance, but-- --Who pays for it? --who pays for it? That's--
Thomas L. Casey: --The State pays for it.
William H. Rehnquist: --Why is that?
Thomas L. Casey: The court has in one case determined after trial and in another case by consent decree that there has been constitutional violations sufficient to require the defendant to make... to rectify the constitutional violations. In this case--
Antonin Scalia: Well, that's fine. And if they should... if they should commit the violation again and you should sue again, then I assume the attorney's fees expended in demonstrating that they continued the violation would be fees expended by the prevailing party in that later litigation. But once litigation has been completed, the... the injunction has... has issued, I... I find it... I find it extraordinary--
Thomas L. Casey: --Your Honor--
Antonin Scalia: --that you can hire attorneys to... to oversee the... the prisons for... for the court.
Thomas L. Casey: --The States have objected loudly and long against that practice, and now in the PLRA, Congress has directed its attention to it. And in--
Antonin Scalia: Well, that... that feature colors my whole view of this case, and I'm... I'm worried that... that how I come out in this case is... is going to be dependent on a... on a practice that I'm not sure is even... is even authorized. But there's... there's no challenge to that here I gather.
Thomas L. Casey: --Not in this case, no.
Sandra Day O'Connor: Would you give us a little more background? There are two cases here: one in class actions I take it, one involving female prisoners and one male prisoners?
Thomas L. Casey: That's correct.
Sandra Day O'Connor: In both cases is there still an ongoing monitoring or has one of them been concluded at last?
Thomas L. Casey: We filed a supplemental brief a few weeks ago, Your Honor. In the Glover case, 6 months ago or so the circuit court remanded the case to the district court with instructions to make findings as to whether there are current violations. The district court has now made those findings, has found that there are no current violations, and has terminated its jurisdiction. The Sixth Circuit had retained jurisdiction, so now briefs are scheduled to be filed.
Sandra Day O'Connor: Well, now on... on that one, do we have an issue remaining as to attorney's fees for monitoring in the Glover case--
Thomas L. Casey: Yes.
Sandra Day O'Connor: --post PLRA and until the termination of the suit?
Thomas L. Casey: Yes. I believe that termination of the suit does not moot out the current attorney fee requests.
Sandra Day O'Connor: And... and the Hadix suit is one where there is still an ongoing monitoring?
Thomas L. Casey: Yes.
Sandra Day O'Connor: And there's been no petition to end that one?
Thomas L. Casey: There have been. We have unsuccessfully appealed portions of it. The case most recently was remanded from the Sixth Circuit back to the district court for further proceedings to determine whether there are current constitutional violations.
Sandra Day O'Connor: Now, one other housekeeping sort of question. Has the State paid all the fees to the attorneys for monitoring up to the effective date of the PLRA?
Thomas L. Casey: The mechanism for attorney's fees in these cases was that each 6 months the plaintiffs' attorneys would submit a request for attorney's fees. We would make objections, as we saw appropriate, and then the district court would enter an order. So--
Sandra Day O'Connor: Well, I asked a pretty simple question. I... I thought PLRA became effective April 26th, 1996. Is that right?
Thomas L. Casey: --That's correct.
Sandra Day O'Connor: Has the State paid the attorney's fees up to that date?
Thomas L. Casey: There is a period of 4 months where we are challenging. The fee cycle started January 1 of 1996, and we are asserting that the determinative date under the PLRA is the date of the award. And the cycle that is at issue is for the 6 months starting December of 1996. The PLRA took effect, as you say, in April of 1996. So, we have in Michigan--
Sandra Day O'Connor: So, the answer is that the State has not paid everything.
Thomas L. Casey: --That's correct. We have not paid the entire fee.
Sandra Day O'Connor: Up to the effective date.
Thomas L. Casey: Correct.
William H. Rehnquist: Would you tell how long each of these two cases has been going on?
Thomas L. Casey: One was filed in 1977 and the other in 1980.
William H. Rehnquist: So, they were cash cows, in effect, weren't they?
Thomas L. Casey: They were, indeed, Your Honor, and the Sixth Circuit stated that in one of its opinions, which we've quoted in the brief. Particularly since--
Ruth Bader Ginsburg: Well, the record before us of the extent of the violations of the injunction... we don't know that. It may be that these... that there were consistent violations and the monitoring was necessary so that the officials would abide by the court's orders. So, but that's... the sole issue here is how much per hour, as I understand it, and not whether these injunctive decrees were needed.
Thomas L. Casey: --That's correct, Your Honor. As... as the case is postured now, we are only dealing with the attorney fee cap in section 803(d)(3) of the PLRA.
John Paul Stevens: May I ask just one other question? Your... your position is that the date of the award governs. Supposing there's an award before the statute was passed, but you challenged it and appealed it, and then it became final after the statute was passed, how would you deal with that?
Thomas L. Casey: For an award which has not been liquidated and finalized, we believe that the PLRA would apply.
John Paul Stevens: I see.
Thomas L. Casey: We... we are not seeking to reopen old--
Stephen G. Breyer: I understand that, but I just-- --Is there any... I mean, the common sense of this I guess would be Congress passes a statute saying put a cap on rates. All right?
Thomas L. Casey: --Yes.
Stephen G. Breyer: Somebody who knew nothing about it would say, I guess they mean that the cap applies to people for future work, and it doesn't apply for past work. All right. I guess knowing nothing about it, that's what I would say. Now, why is it knowing a lot about it, I'd have to say something else? [Laughter] Well, some of this is future work. I mean, lest--
Thomas L. Casey: Oh, yes.
Thomas L. Casey: --lest it be thought the--
Thomas L. Casey: Some of it is--
Stephen G. Breyer: --I mean, I assume you're not going to object to that part of it, but the... the common sense... what I think is the common sense of it. And the other part--
Thomas L. Casey: --Well, as... as this Court has told us in Landgraf, you first look to see if Congress has made a clear statement about its intention, and to do that, you first look at the text of the statute and the legislative history.
Sandra Day O'Connor: --Well, the statute here doesn't say anything about what is supposed to happen. It just says there is this cap on attorney's fees, and we know it became effective in April of 1996. Isn't that right? That's all we know from looking at the statute.
Thomas L. Casey: We believe that the text of the statute does clearly show Congress' intent that it apply to pending cases. Section 803(d)(1) refers to in any action brought by a prisoner who is confined. Those are words of the present tense. We believe they apply to pending cases. In Hutto v. Finney, this Court said of similar language in section 1988 that the words any action could not be broader and contained no hint of an exception.
John Paul Stevens: Of course, the word brought was not in that statute.
Thomas L. Casey: That's correct. We are not saying that any individual word here by itself is determinative. To determine the intent, you must look at the entire statute. There are three subsections: the one I've just read and also section 803(d)(3), which says no award of attorney fees shall be greater than 100 percent. Again, these are all encompassing words. No award we say means no award. Thirdly, the definition of prisoner in section 8038 says any person incarcerated who is convicted or sentenced for. Again, words in the present tense which are all-encompassing and contain no exception and no limitation to solely prospective application.
Ruth Bader Ginsburg: And yet, there is another section that does state it is to be retrospectively applicable, and this section that we're dealing with conspicuously does not contain any such explicit instruction.
Thomas L. Casey: Section 802 of the PLRA was an amendment to the Code of Criminal Procedure, 18 U.S.C. 3626. In that section, the... there is an explicit statement that section 802 applies to pending cases. We believe that Congress knew after this Court's opinion in Landgraf that in order to make that section apply to pending cases, they had to do it explicitly because that was a substantive section. It applied to the relief to which plaintiffs would be entitled and to terminating current relief. The sections that we are talking about, particularly section 803(d), we submit is more of a procedural than a substantive section. All of the sections of the PLRA, except section 802, are sort of a grab bag of different kinds of statutes. They deal with such things as filing fees, exhaustion of administrative remedies. We have the attorney fee provision. There is a--
Antonin Scalia: Well, I don't understand the principle you're espousing, that all procedural things... I don't understand. The line between retroactivity and non-retroactivity or between a presumption of retroactivity and a non-presumption of retroactivity is the same as the line between substance and procedure?
Thomas L. Casey: --That is one of the factors the Court identified in Landgraf.
Antonin Scalia: I thought that... that the distinctive feature of 802(b)(1) is the fact that it says it shall apply with respect to all prospective relief whether such relief was originally granted or approved before, on, or after the date of enactment of this title. I mean, that... that is a degree of retroactivity, admitted retroactivity. You're not arguing for retroactivity here, are you? You... you don't think that this applies before.
Thomas L. Casey: Section 802 is... is not at issue here. What--
Antonin Scalia: No, but that's the section we're comparing it with. We're saying that 802 has this explicit statement.
Thomas L. Casey: --Yes.
Antonin Scalia: And it seems to me the explicit statement was necessary in 802 to make it clear that 802 was retroactive.
Thomas L. Casey: That's correct.
Antonin Scalia: That is, it applied to matters before the date of enactment of this title.
Thomas L. Casey: That's correct.
Antonin Scalia: You don't assert that 803 applies to matters before the date of this title. You just... you just assert that it applies to all fees awarded.
Thomas L. Casey: We say it applies to all awards made after the effect of the statute.
Antonin Scalia: Right. But it does apply to awards made for work done before the date of the statute.
Thomas L. Casey: That is our contention, yes, Your Honor.
David H. Souter: Let's assume, for the sake of argument, that I don't think the... the text really answers the question so that we have to go to step two in... in the retroactivity analysis and ask sort of the Justice Story questions which in this case I guess would be the question whether the act imposes a disability with respect to completed acts as of the date of its enactment. And I take it in this case that would translate into the question whether the... whether the act in effect interferes with the... sort of the... the fee agreement or the... the terms of the fee that had been set before the date of the act. Now, my... my question I guess is this. Is it... is it your argument that the... as it were, the expectations for payment of fee, the fee arrangement, was simply a fee which in the terms of 1988 was a reasonable fee, whatever that might turn out to be, so that if the statute comes along at a later time and says, well, we think reasonable is this lesser amount, the statute applies?
Thomas L. Casey: Yes.
David H. Souter: Or... that's... that's your position.
Thomas L. Casey: Yes.
David H. Souter: Why shouldn't... why shouldn't the... the analysis be that we're talking about the real world here and the... the fee arrangement was the fee arrangement which the... which the lawyers and the court had at the time they began their work? And at the time they began their work, and certainly at all... at the time that they did the work up until at least the effective date... forget the later period... their... their expectation was that they would be paid on whatever the... sort of the going rate was at that time, which was the higher amount. Why isn't the proper analysis... the kind of real world factual analysis that the... that the terms were that they would be paid at that higher amount? If you impose the... the act with respect certainly to... to work done prior to the date of the act, you are imposing a disability. You are interfering with that kind of fee arrangement. And therefore, it's retrospective. Why isn't that the proper analysis?
Thomas L. Casey: Our position is that the plaintiffs and their attorneys do not have a reasonable expectation in a particular rate.
David H. Souter: Well, why don't they?
Thomas L. Casey: The most that they--
David H. Souter: I mean, why... that's... I know that's your position, but why... why don't they? At the time they... they did this work, there was no reason to suppose that the... that the practice of the court was going to be, in effect, interfered with.
Thomas L. Casey: --Well, I disagree with that, Your Honor. In fact, there have been many changes in the fees paid here.
David H. Souter: Have... have any of those changes been retrospective in the sense of applying to work previously done before the change was announced?
Thomas L. Casey: Every 6 months plaintiffs submit a bill for their expenses, and at that time they say what they want their fee to be.
William H. Rehnquist: So, in effect, every... every award of fees is for work previously done.
Thomas L. Casey: Correct.
David H. Souter: Yes, but did... did they argue about the amount of the work they've done and whether they have earned the fee, or did they argue about the... the terms upon which they will be compensated for work done once the amount of work is determined? What's... what's the... what is the... the contest at the time they submit the bill, about the one point or the other?
Thomas L. Casey: They submitted a... a bill for fees for January 1 through June of '96. They are asking for an increase in the rate of pay from 150 dollars to 200 dollars an hour because that they say is the prevailing market rate.
Sandra Day O'Connor: Has that happened-- --Okay. --all... all along? Have... have they asked for years... periodically they ask for more--
Thomas L. Casey: Yes.
Sandra Day O'Connor: --in hourly rate? And then the court decides whether to increase it or not?
Thomas L. Casey: That is... that is--
David H. Souter: But that hasn't-- --Yes, but-- --Go ahead. No, please. There-- --It seems to me beside the point that you can always increase the rate. A windfall is lovely, but can you decrease the rate if there is an understanding that there is at least a... a floor, and if you... can you decrease that rate? Do you have any instances of past practice in which the court has said, well, I've been approving rates at... at 100 dollars an hour, but I think I'll drop down to 80 dollars with respect to the... to the work you've previously done? I think it was just too high. Any instances of that?
Thomas L. Casey: --I don't believe there have been any instances like that.
David H. Souter: Well, then why--
Thomas L. Casey: But there--
David H. Souter: --isn't the actual expectation that... that we should bear in mind when we're doing a retroactivity analysis, the expectation that, in fact, there... there was at least a floor? They may or may not succeed in getting it raised, but there was at least a floor and that floor is the... sort of the benchmark that we should consider for retroactivity analysis.
Thomas L. Casey: --Our position is that that floor is subject to change.
David H. Souter: Well, I know that's your position, but why? I mean, what reason do you have for me to accept your position? Mr. Casey, can the... can the district court disappoint the expectations of the defendants?
Thomas L. Casey: Of course. The district--
Antonin Scalia: By... and every time it increases the fees beyond the fees that it gave the last time around, I suppose it is disappointing the expectations of the defendants, isn't it?
Thomas L. Casey: --That's correct.
Antonin Scalia: And that's perfectly okay.
Thomas L. Casey: Yes.
David H. Souter: Well, maybe on your analysis-- --Presumably it could... it could disappoint the expectations of the plaintiffs as well should it decide at some time that it has been giving too much money in the past.
Thomas L. Casey: That's... that's correct.
David H. Souter: Have you ever objected to an increase in the fees?
Thomas L. Casey: Yes.
David H. Souter: Yes. So, I... I assume you didn't think that was proper.
Thomas L. Casey: That's correct.
David H. Souter: And by a parity of reasoning, I suppose it would not be proper to... to decrease retroactively.
Thomas L. Casey: If, for example, the economy went into a depression--
David H. Souter: Well, isn't that... is my logic correct?
Thomas L. Casey: --If there was a... if there was a decrease in the prevailing market rate of attorney fees, then the plaintiffs in one of their 6-month cycles would be entitled to a lesser amount than they received the preceding cycle.
David H. Souter: Well, why?
Thomas L. Casey: Because under their view, the prevailing market rate would have... instead of being 150 dollars an hour, say it was 100 dollars an hour.
David H. Souter: Well, so you're... you're saying that the only arrangement... that the only expectation ever expressed was whatever the market rate is you'll get.
Thomas L. Casey: Under... under 1988--
David H. Souter: If it goes up, you get it. If it goes down--
Thomas L. Casey: --That's correct.
David H. Souter: --yours goes down.
Thomas L. Casey: That's correct.
David H. Souter: Now, what about... and I'm not sure that this really is to the point, but I want to explore it. What about the feature in this case, as I understand it, that at least after the judgment for the period in which counsel was... was policing the judgment, acting as monitor, and so on, that the court actually set fees in terms of specific figures. Didn't... wasn't there an order in one or the other of these cases or perhaps both saying you will get paid at such and such an hour for this prospective work?
Thomas L. Casey: For a particular fee cycle, yes.
David H. Souter: Okay. For the future?
Thomas L. Casey: I don't believe for the future, no. For the billing cycle that was before the court.
Thomas L. Casey: Which was past.
Thomas L. Casey: Which was past.
David H. Souter: So that it was never forward looking.
Thomas L. Casey: It's my understanding. We certainly never agreed to any order which would say that plaintiffs are henceforth entitled to a particular amount.
David H. Souter: Now, let me go back to my question and I won't... I won't occupy your whole argument. I just want to go through one... one time on this. You say they cannot look backwards and say the reasonable fee is less than we have been paying. And as I understand it, you're saying they can't do that because the actual understanding between court and counsel was simply a general understanding. You get what's reasonable--
Thomas L. Casey: On the date of the award.
David H. Souter: --not any specific amount.
Thomas L. Casey: Yes.
David H. Souter: Okay. What is the basis for your saying that? Was that... was that proposition that you are putting forward ever set forward on the record? Is it in writing anywhere? How do we know that that was the arrangement?
Thomas L. Casey: I don't think it was articulated in those terms in front of the district court. It was essentially every 6 months, they would submit a bill. We would object. But I... I don't think we got into this level of subtlety.
Anthony M. Kennedy: Are... are you saying that in light of the statute, amounts previously awarded are now known to be unreasonable?
Thomas L. Casey: We are not--
Anthony M. Kennedy: Or put it another way, would it be unreasonable to award more than the statutory amount? Assuming no retroactivity, we know that there's a policy in the Congress to put this cap on. Does that mean anything above that is unreasonable--
Thomas L. Casey: --Yes. Section 1988--
Anthony M. Kennedy: --But isn't there a range of reasonableness?
Thomas L. Casey: --Of course, and what we are saying is that all the plaintiffs are entitled to is a reasonable fee on the date of the award, and that reasonable fee changes.
Sandra Day O'Connor: I would have thought... I would have thought that you'd look at when the work was performed. And one line you could draw with this statute that wouldn't pose a retroactivity problem, I assume, would be to say that work performed by the lawyer after the effective date is governed by the provisions of the PLRA. But you don't take that position.
Thomas L. Casey: We do take that position.
Sandra Day O'Connor: I thought you said it turned on the date of the award, regardless of when the work was performed.
Thomas L. Casey: The court has specified--
Sandra Day O'Connor: That's what I heard you to say. Which is the line you're drawing?
Thomas L. Casey: --The court has specified two issues: one for work performed before the date of the PLRA and one for work performed after the date of the PLRA.
Thomas L. Casey: Well--
Thomas L. Casey: We say that the date of the award is the operative date.
Sandra Day O'Connor: --Yes, but what I'm saying to you is I would think a line could be drawn saying it depends on when the work was performed, and if it was performed after the effective date, the statute applies. But you do not take that view.
Thomas L. Casey: The statute applies to all awards after the effective date of the statute regardless of when the work was performed. That is our position.
Sandra Day O'Connor: That's your view, yes.
Thomas L. Casey: That's correct.
Sandra Day O'Connor: And I think one could make an argument for a different approach.
Thomas L. Casey: I think a stronger argument can be made for work performed after the date of the statute.
Sandra Day O'Connor: Let me ask you one more thing. Do you think that an attorney who is involved in the monitoring would have the right to withdraw, go to the court and say, I'd like to withdraw because I don't want to work for the amount provided in this statute?
Thomas L. Casey: They would need the court's permission, but yes, they could seek it.
Sandra Day O'Connor: Yes, but that's possible to do.
Thomas L. Casey: Yes, yes.
Antonin Scalia: Excuse me. They... they would need the court's permission. Are they designated by the court or they just happen to be the attorneys for... for the client and they... they need to get the court's permission to cease being attorneys for the client?
Thomas L. Casey: They were the plaintiff class counsel from the beginning of the lawsuit, and I don't believe they could unilaterally just withdraw at this point. The court would have to... I assume would look to see if there is substitute counsel available and make sure--
Ruth Bader Ginsburg: They would... do they have court appointments? Because I assume--
Thomas L. Casey: --No.
Ruth Bader Ginsburg: --They did not have court appointments.
Thomas L. Casey: No. These are... these are private counsel. They're not appointed by the... by the court. Again, we think you look to the relevant activity affected by this statute and that is the award of attorney fees. And I'd like to reserve the rest of my time.
William H. Rehnquist: Very well, Mr. Casey. Ms. LaBelle, we'll hear from you.
Deborah LaBelle: Mr. Chief Justice, and may it please the Court: I would first like to just clarify briefly one of the inquiries of Justice O'Connor and that in this case, both in the Glover and Hadix, the defendants have paid at pre-PLRA rates all of the fees up to the date of enactment of the act. The way that happened is the--
Sandra Day O'Connor: The date of the enactment or the effective date of the act?
Deborah LaBelle: --Up through April 26th, 1996.
Sandra Day O'Connor: The fees have been paid, contrary to what counsel has just told us.
Deborah LaBelle: Yes. They did not seek review of the Sixth Circuit's prior opinions in both Hadix and Glover awarding specifically that pre-enactment--
Sandra Day O'Connor: So, in your view, the only thing at issue is fees earned, if you will, after the effective date of PLRA?
Deborah LaBelle: --Absent this Court ruling that defendants, which they sought to come back and get those fees back, yes. They've already paid them and before the Sixth Circuit and at the later opinion they asked that they be able to go back and reclaim them.
Ruth Bader Ginsburg: Did they pay them because the district court required them to? I mean, they did contest them all, didn't they?
Deborah LaBelle: They did contest them. They paid them because the court of appeals affirmed the district court and they did not seek review of that.
Ruth Bader Ginsburg: Yes, but it was not a voluntary payment and then they sought to get it back.
Deborah LaBelle: That's correct.
Ruth Bader Ginsburg: They didn't pay until ordered to do so by the court.
Deborah LaBelle: That's correct, Your Honor. And clarifying one other point--
Antonin Scalia: Excuse me. That means then that... that really question 1 in the questions presented is not really before us. Is that... yes. I'm sorry. No. Question 1 is not before us.
Deborah LaBelle: --It is true that they have paid all those monies.
Antonin Scalia: Wait a minute. Oh, it's question-- --But they-- --question 2 that's not before us.
Deborah LaBelle: Correct.
David H. Souter: They have paid them, but are they still able to contest them procedurally?
Deborah LaBelle: I don't know the answer to that question.
Ruth Bader Ginsburg: Didn't they challenge that in the Sixth Circuit?
Deborah LaBelle: They challenged it in the Sixth Circuit, but the Sixth Circuit ruled that they had to pay it. They did not seek review of that prior opinion. It was the subsequent opinion which covered both pre and post awards, pre and post fee awards, that they sought review of and that is before this Court now.
Anthony M. Kennedy: Why did the subsequent opinion address it if it had been paid under the earlier opinion?
Deborah LaBelle: Because the original opinion dealt with a time period way before the passage of the act from June 1995 through December 1995, which the court, because they contested some other matters, didn't hold a hearing and get around to awarding until after the passage of the act. Therefore, they said, okay, it's an award for fees from June through December 1995. Now we want to apply the PLRA. Subsequent to that came a time period of January '96 through June '96 which encompassed both pre and post enactment hours. And that is the matter which they sought review and is before the Court. For whatever reason, they decided that when the Sixth Circuit ruled even as to that matter to pay all of the fees up through April 1996 at the pre-PLRA rate.
William H. Rehnquist: Ms. LaBelle, let me get at least myself straight. Maybe my colleagues are already straight. Question 2 is whether in such litigation this fee provision applies to fees awarded after the act's effective date for services rendered before that date. Now, do you say that that question is not before us?
Deborah LaBelle: I think that it's not before the Court--
William H. Rehnquist: And why is that?
Deborah LaBelle: --Mr. Chief Justice, because they paid all of those fees, did not contest them, did not... did not contest them at the time of paying it, did not say we retain the right, and in fact, did not seek in their petition for review before this Court to review that matter.
William H. Rehnquist: So... go ahead. I just... does the record show that they were paid?
Deborah LaBelle: Yes.
Anthony M. Kennedy: Why did they not seek to pursue that matter if it's included in the questions presented? Or it's not in the cert petition?
Deborah LaBelle: It's not in their cert petition, Your Honor, and this Court then issued them the two questions splitting the matter.
Antonin Scalia: It's our fault. You're blaming it on us. [Laughter] Yes, it was framed much more generally in the question presented. It would have embraced both, though, whether the attorney fee provision applies to fees for services in litigation pending on the effective date of the PLRA. That would include both, but it didn't split them out.
Deborah LaBelle: And, Your Honor, I think that there's a good reason actually to include both in this Court's inquiry because I do not think that the statute, by the language of the statute itself, allows for the distinction. And in fact, that's one of the problems.
John Paul Stevens: Let me just be sure I get... you do tell me this in the record, the fact that they were paid before.
Deborah LaBelle: I do not know if it's in the record, Your Honor, in the joint appendix. The decision... the prior decision of the court is in there, and I would have to look at the joint appendix to see if there is a specific notation of them paying it. I don't think it was included in their joint appendix, Your Honor.
David H. Souter: I see. Well, is it in the record of-- --Well, because he has a different memory. I was... is it in the record of a Michigan court, whether it got--
Deborah LaBelle: Yes, it's certainly--
David H. Souter: --into the portion you sent to us?
Deborah LaBelle: --Yes, Your Honor. It's certainly in that record. I would... I would like to address the fact that we think that the... the plain language of the statute at issue here does not evince a congressional intent with regard to its temporal reach. However, if you apply this Court's other general rules of statutory interpretation, there are several bases for concluding that Congress intended the statute only to apply to actions brought after the passage of the act because, while Congress did not state in any--
William H. Rehnquist: So, your... your position then is... is you reject all of the previous positions that have either been suggested from the bench or by... by your opponent. It applies only to a lawsuit that is brought after the act.
Deborah LaBelle: --I think that's correct, Your Honor, to an action brought after the passage of the act. And it does not apply to pending cases because, while this Court has, certainly in Landgraf, told Congress that if they want to apply things to pending cases, they should clearly make that evident in the language of the statute. Here Congress did in one section of the statute, in 802, clearly say that this applies to pending cases. What they--
Antonin Scalia: Well, we didn't say that in Landgraf. I mean, it depends on what the rule is. I mean, if... if Congress changes, for example, a rule of evidence, as to the admissibility of evidence, I didn't understand Landgraf to say that we would treat that as inapplicable to cases filed before the rule of evidence was adopted.
Deborah LaBelle: --I think that's true, Your Honor. I think that in Landgraf the Court set out some narrow lines in saying in purely procedural matters, for example, or in matters that have occurred in the past, that... in purely procedural matters, that this Court would not have a presumption against retroactivity.
William H. Rehnquist: But this is procedural a fortiori. It's really tertiary conduct that we're talking about here. You don't need to look at the clock either. We're looking at presumably actions taken by Michigan correctional authorities some time ago dealing with prisoners. That would be the primary conduct. Now, here we get to something. We're talking about the rate at which attorneys for the prevailing party which prevailed somewhere back in the '70's are to be paid in the '90's.
Deborah LaBelle: But I think, Your Honor, Mr. Chief Justice, what we're talking about here is that the way these cases were filed were based upon a reliance on the act that existed at that time and which this statute amends. And the... the understanding at that time is that if you bring these cases... and in fact, Congress evoked the act to induce parties to bring these cases and attorneys to represent these parties who didn't have the wherewithal to challenge their constitutional rights in any other manner... if you bring these cases, you will have an entitlement to reasonable attorney fees.
Antonin Scalia: Well, only if you win. I mean, this... this was crap shoot anyway. You... you didn't know you were going to get any attorney's fees whatever, much less were you guaranteed the absolute amount of them. You knew you would get attorney's fees if you won.
Deborah LaBelle: That's correct, Your Honor, but that is exactly the balancing act that goes on when a case is filed. You know that you may not win, but if you do win--
Antonin Scalia: But it's a good deal less certain than the kind of reliances that... that we typically say cannot be upset by future legislation. I mean, there's all sorts of reliance. I mean, the person who... who builds a nuclear plant may rely on the existing state of the law and make substantial investments on the basis of it, but the law changes and he's just... he's just out his investment. Why isn't this that kind of reliance? There was no guarantee you were going to get attorney's fees at all, much less the fixed amount of them.
Deborah LaBelle: --Well, I want to distinguish two things. The facts of this case which, in fact, the court did rule in both of these cases that you would for your future work have an entitlement to attorney fees at a set market rate. And these are orders in both of these cases establishing at that time that you would have 150 dollars an hour. It was the market rate established.
Antonin Scalia: The court can bind Congress that way for the future? I would think at least as soon as Congress says we repudiate that court's pronouncement for the future, Congress wins rather than the court.
Deborah LaBelle: That the Congress, Your Honor, can say that... that that... that fees worked... Congress can say that, Your Honor, but I don't think they said it in this act. And I think that that's an important point. What the Congress did say is they said... in 802, they said, yes, it's going to apply to pending cases, and in fact in a case where it involves specifically prospective relief. In a prospective relief, which I think has a little more ambiguity as to whether that applies anyway, the retroactive analysis, but Congress there said it will apply in 802. It did not have that language in 803, and it did something more significant. It took--
Antonin Scalia: The reason they did it in 802, as I suggested earlier, was... was that 802... they had to say it because they... they said whether the relief was originally granted before the date of enactment. There's no contention here that we're going to go back before the date of enactment.
Deborah LaBelle: --Well--
Antonin Scalia: And he just says all orders entered after the date of enactment. Now, had they wanted in this case to cover even attorney's fees orders entered before the date of enactment, then they would have had to have something like what was said in 802. But... but that wasn't what... what they wanted here according to the other side.
Deborah LaBelle: --Or what will be covered is three things because I don't think you can separate the act. What will be covered is fees worked prior to the passage of the act by the language of the act, which were worked under an entitlement, an order of the court saying you will be entitled to future monitoring fees at this rate. And I do want to note and clarify for the Court, the way the court has always awarded fees is for future fees. Defendants have always fought the concept that we can then... at the time we are petitioning for fees, we could raise the rate and get it for the time worked. Defendants have said no, and the court has agreed. Only work--
David H. Souter: But you're saying they cannot do that. You're saying that even as to future rates set after a hearing for the purpose of determining future rates. As I understand your argument, you're saying in this case the rate as determined by the statute may not, in fact, be applied.
Deborah LaBelle: --That's correct. That's what would happen.
Sandra Day O'Connor: The statute... yes. Well, why... why could not the statute be given effect as of its effective date to work performed after that date? Because after that date, counsel must know, of course, that the statute was enacted and that it might well apply.
Deborah LaBelle: The... I think that if you go by the language of the statute, it doesn't allow parsing the statute in that manner because it speaks in terms of any action brought by a prisoner who is incarcerated, the court... fees shall not be awarded except to the extent that. And it does not have, as any of its delineation, hours worked, when the hours are worked, what the time period, and so it's--
Sandra Day O'Connor: But it's a very simple line to draw and certainly could be I think on the face of the statute. In fact, that's the most common sense reading of it I would think.
Deborah LaBelle: --I think that it is a simple line to draw, Your Honor, but I don't think Congress drew that line. And I... I think that what--
Ruth Bader Ginsburg: It was the line the district court drew, though, wasn't it?
Deborah LaBelle: --The district court drew that line, Your Honor, finding that not that the statute's wording provided that, but that there would be a retroactive... an impermissible retroactive effect if you got past the congressional intent--
Sandra Day O'Connor: Well, how... how is it retroactive if you say it applies to work performed after the effective date? How is that retroactive?
Deborah LaBelle: --I think because what we're looking at is what is the conduct and what is the triggering event here, what is the event you look at for purposes of determining whether it has that kind of effect.
Sandra Day O'Connor: Well, how could... how could attorney's fees at an hourly rate be applied on any basis other than work performed?
Deborah LaBelle: Because the attorney fees... first, the attorney fees are only provided if you prevail in a litigation that you've filed under the prior act. In terms--
Sandra Day O'Connor: Yes, but we're over the point of getting paid for the litigation, and we're talking I think only about these endless monitoring arrangements, these open-ended, ongoing monitoring arrangements. Isn't that what we're talking about here?
Deborah LaBelle: --In this case you're talking about the monitoring arrangements, but certainly if it's allowed to apply, it will apply to cases in which have not yet prevailed and which work has performed. The statute comes in in between filing the case and prevailing. And then the... at that time... and there are a number of cases certainly out there in which it's before prevailing in which you file the case with the understanding that if you did vindicate the constitutional rights of your client, that you would obtain reasonable fees.
Anthony M. Kennedy: If you have a trial court that said, you know, counsel, we've been working with this case for 2 or 3 years. I've been making attorney fee awards. I want to tell you that henceforth, I'm going to put a cap on the fees of X dollars an hour, which is lower. You're telling us that that is retroactive. That's a very strange way to use the term retroactive.
Deborah LaBelle: Because I think that it does unsettle expectations and disrupt and injure the client in a way that it should not, in the sense that what the attorney may do in that case, who has committed to the client to represent them, is withdraw. It's the--
Anthony M. Kennedy: Well, except the attorney never had the expectation that he would get anything more than a reasonable fee.
Deborah LaBelle: --But this does not provide for a reasonable fee now. This caps the fee at a certain rate, which is not a reasonable fee.
Stephen G. Breyer: Well-- --Well, I suppose by a miracle that they... which I think they should do... that they increase or double the rate that's paid to counsel in criminal cases, then what would you be saying? Would you be saying that doesn't apply to us? In other words, instead of the 75 dollars an hour max, which is awfully low... I think far too low... they said, very well, it will be 150 dollars. And then your fees would go way up and would you be in here saying, no, no, no, that doesn't apply? It's all--
Deborah LaBelle: I think defendants would, Your Honor, because--
Stephen G. Breyer: --Yes, yes, but I mean, your point... the issue, I would have thought, was not retroactivity. I don't see this retroactivity jurisprudence as relevant either. It's just an issue of whether or not the statute applies to future work in pending cases.
Deborah LaBelle: --I think--
Stephen G. Breyer: And normally you'd think it does apply to future work in pending cases, but... but you produce some reasons why not, and that's what I want to hear.
Deborah LaBelle: --I think it's true. I don't think this Court needs to get to the retroactivity analysis because you only get there if you find that there is... it's not clear what congressional intent was.
Stephen G. Breyer: I don't think you'd be making this as a set deal... years ago we decided initially what all the future rates would be... if tomorrow they come along and they double the... the base rate for the... for the defendant. That's my point. I'm trying to focus you on reasons. What are your reasons why you say, gee, this seems awfully... if it favors you, it does; if it doesn't... that isn't going to be a reason.
Deborah LaBelle: Well, I think that in some sense this is a flip side of Landgraf in which the Court said there that although it was just potential, that you could not tell... you could not grant or extend a potential benefit to... to the plaintiff, a right of compensation, that had the potential of extending the liability of the defendant after the case had been filed. And in this case, what you're doing is you're decreasing the entitlement to the plaintiff in such a way not just with fees, Your Honor--
William H. Rehnquist: But you're... you're not just... you're talking again about secondary or tertiary conduct. Landgraf was dealing with primary conduct: What is the basis for liability? We're not talking about liability in the lawsuit at all here. We're talking about compensation of attorneys.
Deborah LaBelle: --Well, I think you're talking about, Mr. Chief Justice, more than compensation of the attorneys, both... for two reasons. One, the statute, which also controls... is... is controlled. The subsection of the statute also talks about the damages to the client. In this act, what it says is that in any awards in any case brought, the party also loses a portion of their damages and has to move those damages over to pay for--
Speaker: But that's not involved here.
Deborah LaBelle: --It's not involved here, but it's necessitated by this Court's opinion because they are both... both subsections are under, in any case brought, fees shall not be awarded except to the extent that, and one is... sets the cap on attorney fees.
Sandra Day O'Connor: Well, if you drew the line at the mechanics of awarding, I can understand your concern. If you drew the line at when the work is performed, that's a different question it seems to me. And I... is there any reason why a lawyer who is governed by the act in a situation where the lawyer is providing monitoring services... is there any reason why the lawyer couldn't withdraw if the lawyer thought, well, this is just not enough for me?
Deborah LaBelle: I think that the lawyer could withdraw, but then the concern comes in terms of the effect on the client who is now deprived of the lawyer with the experience and the ability--
Ruth Bader Ginsburg: Ms. LaBelle, didn't Judge Wald bring up some ethical constraints that might operate on a lawyer in that situation? She apparently didn't think that the lawyer could just walk away from this kind of undertaking.
Deborah LaBelle: --I think, Your Honor, it probably... I think it does involve ethical concerns certainly, especially in the circumstance where you would be saying whether you should withdraw because it's overwhelming you in terms of the... the financial burden where you know that it is unlikely to have any other... to get any other counsel to represent the client.
William H. Rehnquist: It may be a good reason to stop monitoring if... if the rates are such that you can't get competent counsel to do it. Maybe the district court should take another look at that.
Deborah LaBelle: I think that the monitoring, Your Honor, came in only after, in the Glover case, the Sixth Circuit found these defendants in omnibus contempt of the court's orders and then ordered a development of a plan that actually complied with the court's orders.
William H. Rehnquist: When... when was that, Ms. LaBelle?
Deborah LaBelle: The order of the Sixth Circuit initial one was in 1991, and the district court subsequently in 1995 found again that defendants were not complying and were in contempt. The... it has not been, at least in the Glover case, ongoing monitoring. There was a period in which everyone expected the defendants to obey the court's orders and it was only after 5 or 6 years in which no action was done, that the parties for the class of women prisoners came back in and said, excuse me, we don't have any compliance here. And then that started again the contempt and the monitoring award.
William H. Rehnquist: Ms.-- --That was the Glover case?
Deborah LaBelle: That's correct.
William H. Rehnquist: And that was the one from 19... that started in 1977?
Deborah LaBelle: Yes, it did, Your Honor.
William H. Rehnquist: Ms.-- --Go ahead. I'm sorry. Ms. LaBelle, is it... is it the expectations of the lawyers we ought to be looking at in this case anyway? These... these fees are not really awarded to the lawyers, are they?
Deborah LaBelle: The fees are the fees of the client.
Antonin Scalia: Right, and... and in what respect was the expectation of the client disappointed?
Deborah LaBelle: I think in... in these cases that what happens when they are filed is that the... it is the party that has a right to, under the act prior to this amendment, reasonable attorney fees and--
Antonin Scalia: The party is going to turn over whatever attorney's fees the party gets to the lawyers is what's going to happen. I don't think the party really... really cares whether the party turns over more or less. I understood the... the purpose of this provision to be to help parties, not to... not to help lawyers.
Deborah LaBelle: --I think that's true, Your Honor, but this... this statute does more. It takes from the party up to 25 percent of their damages when they win, and it's found that they are the victims of constitutional violations and says you must turn that portion of your damages over to pay the defendant's obligation to pay attorney fees. So, it certainly does affect the party in a way more than just paying the lawyers. They must now, under this subsection, pay up to 25 percent of any damages awarded to them to offset the award to the wrongdoer, the defendant in this case, as obligation for attorney fees. So--
Ruth Bader Ginsburg: How frequent is it in these prison reform litigation cases that... that there is any significant monetary award to the plaintiffs?
Deborah LaBelle: --I think that in... the most significant awards do occur in situations of wrongful death and in rapes. Certainly that's my familiarity, more in the women's prison situation. There are--
Ruth Bader Ginsburg: Those cases would tend to be brought not as these large class actions, would they? The wrongful death case?
Deborah LaBelle: --There are cases brought as class and as individuals, Your Honor, addressing both where there is a pervasive condition that is alleged. But I think in... in the general situation where there are damages, I would agree that in general they are brought in individual circumstances.
Ruth Bader Ginsburg: May I ask you to clarify one point to make sure I got it right? Did you respond, in answer to Justice Breyer's question, that you would take the same line with respect to a Congress that doubled the fee, because it wanted to give people incentive to bring these actions, that the word brought would mean that the increase applied only to actions brought after the effective date?
Deborah LaBelle: If the statute had the same evolution, Your Honor, and the procedure that I think we have here, where Congress took that section out of a section that applied to pending cases and put it in a section that did not and did not specify that it applied to pending cases, I think that you would have to use your general rules of statutory interpretation to say that Congress did not intend it to apply to pending cases.
Ruth Bader Ginsburg: So, the answer is yes. It would have the same--
Deborah LaBelle: Yes.
Ruth Bader Ginsburg: --words, the same history.
Deborah LaBelle: The answer is yes.
Ruth Bader Ginsburg: It would work both ways.
Deborah LaBelle: It would work both ways, Your Honor, because it would... in that circumstance I would not argue that the defendants who also work under these circumstances with the knowledge as to what the fees would be should have to, in pending cases, then have to reassess that and now be told not that it will be market rate, but that it might be double market rate, and especially in circumstances where they can't go back and change their conduct, as is urged here, where we worked under an entitlement of a court order to what had been defined as market rate and performed that work, and then the act came into effect. And so that certainly we can't alter and we can't go back and make a decision whether to withdraw. But... but I would think that here, where Congress... I think that although I do believe that there is a retroactive effect on the parties by applying this act to cases that are pending, I think that Congress... you don't need to get to that if you look at what Congress did here.
David H. Souter: Well, may I raise a question here? I have one basically simple problem with your statutory argument, to the extent that you are arguing that at no time may the court prospectively change the rate in this case to conform to the new... to the new act. The problem that I have with it is that I assume... I have to assume... that Congress legislated against a background of... of fee award practices in... in which we... we all find it a familiar feature of the system, that the court is constantly reexamining fee orders in... in these continuing cases. Lawyers come in, just as I guess... I don't know whether you did, but I gather a lawyer did in this case and said I ought to paid more, and that was even for work that had been completed. But in any case, I ought to get a higher rate. And it seems to me that the... that the background principle against which Congress probably legislated was the principle in which adjustments are made as we go along. Now, we may fight about the retroactive effect of making that adjustment with respect to a post-enactment period for work done before the adjustment is made. Let's leave that aside. But with respect to an adjustment which is by any standard totally prospective, the adjustment that is made when the court says, from now on any work that you do is going to be compensated at the... at the rate under the new statute, it seems to me that that is probably in conformance with what Congress would have assumed as a background principle for the way fee awards in continuing cases are made. Now, is... is my simple problem subject to a simple answer?
Deborah LaBelle: Your Honor, if... perhaps in cases where you're in monitoring, but that would not be the way--
David H. Souter: Which is what we have here.
Deborah LaBelle: --Correct, but this would also apply to cases where attorneys are in midstream on a case, where they started the case under the understanding that they would get those fees.
David H. Souter: Well, what... may I question that? How many... this is really a question. It's not just a rhetorical question. How many lawyers begin cases... let's say, prison litigation cases... with a... a clear understanding about what the hourly rate is going to be if they win? Is that... is that commonly done? Do we go into court and pretrials in these cases and say, if you're the prevailing party, you're going to get X dollars an hour?
Deborah LaBelle: I think, Your Honor, the answer to some extent is not X dollars an hour, but prevailing party, yes, that you will not suffer--
David H. Souter: Do they say that at pretrials, or is that again just kind of a background principle upon which everybody behaves?
Deborah LaBelle: --I think in these difficult cases, it is the background principle, that if in these difficult cases, you do prevail, you will not... it will not be a punishment. You will... you're not sacrificing other work in order to do these cases.
David H. Souter: But is the prevailing rate understood as the prevailing rate for fee awards in the Federal courts for assigned counsel cases or the prevailing rate in the bar in general? I assume the former, but maybe I'm wrong.
Deborah LaBelle: I think that it has... it has been determined both by Hensley and in the precedents in... in the district circuit that we practice in, that it is the prevailing market rate in the community in which you practice.
William H. Rehnquist: Is that so? Thank you, Ms. LaBelle.
Deborah LaBelle: Thank you.
William H. Rehnquist: Mr. Casey, you have 4 minutes remaining. Mr. Casey, would you clarify a factual matter for me? I had thought that you had said that all of the awards here were retrospective; that is, you came in after 6 months of work, and at that point the court would tell you what rate you would get for the 6 months preceding. But I understood Ms. LaBelle to say the opposite, that the court was... was saying for the next 6 months, you're going to get such and such a rate.
Thomas L. Casey: My understanding is that every 6 months, they submit a bill and they ask to be paid at a certain rate for that work which was performed in the past.
Antonin Scalia: And the order does not say, moreover, this rate will continue for the next 6 months.
Thomas L. Casey: Correct. I do not believe the orders say that.
Stephen G. Breyer: Is there any indication here that Congress focused specifically on what I'd call prison litigation, long, ongoing cases, 20-year cases, 15-year cases, as compared to just an ordinary case where a prisoner says I'm being held under bad conditions, one person, one time, et cetera?
Thomas L. Casey: Yes. What legislative history there is available is focused on these consent decree cases which go on for decades, not just in Michigan's, although Michigan's cases were specifically mentioned because Senator--
Stephen G. Breyer: Do you have any empirical data on... on how many old cases there are hanging around forever as compared to the number of new that are brought from year to year?
Thomas L. Casey: --I don't know.
Thomas L. Casey: No is the answer.
Thomas L. Casey: There was a letter introduced into the record from the National Association of Attorneys General which indicated I believe 54 cases as of 1994, but I do not know how many... Michigan has 4 pending--
John Paul Stevens: Is it correct that the theory on which the cases go on so long is that the plaintiffs contend... maybe their wrong... that the violations of the Constitution have not been terminated?
Thomas L. Casey: --That's correct.
John Paul Stevens: And the district court must find that to be true in order not to terminate the litigation.
Thomas L. Casey: That's correct. And the problem, as Congress recognized in the PLRA, is that district courts have gotten bogged down in the minutia of management. The Sixth Circuit in Hadix in an opinion we've included at page 164 of our brief, in which they remanded the case back to the district court, pointed out that the district court had gotten bogged down in the minutia of remedial activities rather than focusing on the alleged constitutional violations. They sent the case back to the district court and they said just determine whether there is a current constitutional violation. The district court examined it, found no current violations, and now that case will be dismissed.
Antonin Scalia: General Casey, could I clarify one more factual matter? Am I correct that none of the fees involved in this case involve the fees incurred in litigating the initial... to the initial judgment?
Thomas L. Casey: Correct.
Antonin Scalia: They are all later--
Thomas L. Casey: Monitoring has been--
Thomas L. Casey: --Monitoring fees.
Thomas L. Casey: --going on for 15 or 19 years.
Antonin Scalia: And may I ask with respect to my previous question that if... if Ms. LaBelle is of a different view, namely, is of the view that these judicial orders were prospective and said that you're entitled to so much of a rate for the future, that perhaps she... or where that... where that would... would appear in the record. This is an important fact for me and I think the two of you have said different things. And... and--
Thomas L. Casey: The orders of the court are included in the joint appendix. If they're not all in the joint appendix, then certainly they would be--
Antonin Scalia: --But they're all in the same--
Thomas L. Casey: --Yes, I believe so. I believe so, Your Honor.
Anthony M. Kennedy: --How much has the State paid in... in the Glover case to date? Everything.
Thomas L. Casey: I don't know specifically over the past 22 years. For the four cases, consent decree cases, class actions we have pending now, the difference, if the PLRA limit applies, for '96 through June of '98 is 550,000 dollars apparently.
William H. Rehnquist: Thank you, Mr. Casey. The case is submitted.