Perez v. Cate

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CARLOS PEREZ, on behalf of 

himself and all others similarly

situated,

No. 09-17185

Plaintiffs-Appellees,

v.  D.C. No.

C 05-5241-JSW

MATTHEW CATE; WILLIAM

OPINION

KUYKENDALL; ROBIN DEZEMBER;

EDMUND G. BROWN, JR.,*

Defendants-Appellants,



Appeal from the United States District Court

for the Northern District of California

Jeffrey S. White, District Judge, Presiding

Argued and Submitted

November 5, 2010—San Francisco, California

Filed January 13, 2011

Before: Ronald M. Gould and Sandra S. Ikuta,

Circuit Judges, and Edward R. Korman,

Senior District Judge.**

Opinion by Judge Ikuta

*Edmund G. Brown, Jr. is substituted for his predecessor, Arnold

Schwarzenegger, as Governor of the State of California. Fed. R. App. P.

43(c)(2).

**The Honorable Edward R. Korman, Senior United States District

Judge for the Eastern District of New York, sitting by designation.

701

PEREZ v. CATE 703

COUNSEL

Phillip Lindsay, State of California, San Diego, California, for

defendant-appellants Matthew Cate, et al.

Donald Specter, Alison Hardy, Prison Law Office, Berkeley,

California, for plaintiff-appellees Carlos Perez, et al.

704 PEREZ v. CATE

OPINION

IKUTA, Circuit Judge:

The Prison Litigation Reform Act (PLRA), 42 U.S.C.

§ 1997e, caps attorney fees authorized under 42 U.S.C.

§ 1988 at 150% of the “rate established” by the Criminal Jus-

tice Act, 18 U.S.C. § 3006A, “for payment of court-appointed

counsel.” 42 U.S.C. § 1997e(d)(3). This appeal raises the

question whether the fee cap also applies to separately billed

paralegal fees. Because the Supreme Court has determined

that, for purposes of § 1988, the phrase “reasonable attorney’s

fee” encompasses separately billed paralegal services, Mis-

souri v. Jenkins, 491 U.S. 274, 285 (1989), we hold that par-

alegal fees are subject to the same cap under the PLRA as

attorney’s fees, and therefore affirm the decision of the dis-

trict court.

I

Carlos Perez and the class of all current and future Califor-

nia inmates housed at one of California’s thirty-three state

prisons brought an action under 42 U.S.C. § 1983 against Cal-

ifornia prison officials, alleging that they violated the Eighth

Amendment in their provision of dental care. The parties set-

tled the action and entered into a remedial plan which pro-

vided, among other things, that plaintiffs would monitor the

prison officials’ implementation of the plan. The parties

agreed that plaintiffs were entitled to attorney’s fees as the

prevailing party, limited to the “billing rates [set forth under]

42 U.S.C. § 1997e(d) of the PLRA,” including “fees and costs

incurred in connection” with monitoring the implementation

of the remedial plan. The District Court for the Northern Dis-

trict of California approved the plan in August 2006. On April

10, 2007, the court entered a stipulated order for the periodic

payment of plaintiffs’ attorney’s fees and costs. During 2007,

the prison officials paid the attorney’s fees amounts requested

PEREZ v. CATE 705

by plaintiffs, including the rates charged by plaintiffs for par-

alegal services.

In 2008, plaintiffs submitted attorney’s fees statements ask-

ing for payment for paralegal services at a rate of $169.50 per

hour. The prison officials refused to pay plaintiffs the

requested hourly rate, offering $135 per hour instead. At a

hearing on this dispute before the district court, the prison

officials claimed that, under the PLRA, plaintiffs were enti-

tled to seek a maximum of $82.50 per hour for paralegal ser-

vices. The district court disagreed and determined that

plaintiffs’ proposed hourly rate of $169.50 was reasonable for

the work performed and was below the market rate for parale-

gals in the Bay Area. Therefore, the court ordered prison offi-

cials to pay plaintiffs $3,553, the full amount in dispute.

Prison officials timely appealed, arguing that the $169.50 per

hour rate exceeded the rate for paralegal fees allowed under

the PLRA.

II

We review the district court’s interpretation of the PLRA’s

provisions governing attorney’s fees de novo, see Webb v.

Ada Cnty., 285 F.3d 829, 834 (9th Cir. 2002), and its determi-

nation of the amount of an award within the statutory range

for abuse of discretion, see Dannenberg v. Valadez, 338 F.3d

1070, 1073 (9th Cir. 2003).

In order to determine whether the $169.50 per hour rate

approved by the district court for paralegals was permissible

under the PLRA, we begin by examining the plain language

of the statute. McDonald v. Sun Oil Co., 548 F.3d 774, 780

(9th Cir. 2008).

[1] The PLRA governs prisoners’ legal actions “with

respect to prison conditions.” See 42 U.S.C. § 1997e(a). Limi-

tations on attorney’s fees are set forth in § 1997e(d). Among

other limitations, § 1997e(d)(3) provides that “[n]o award of

706 PEREZ v. CATE

attorney’s fees in an action [brought by prisoners in which

attorney’s fees are authorized under 42 U.S.C. § 1988] shall

be based on an hourly rate greater than 150 percent of the

hourly rate established under section 3006A of Title 18,

United States Code for payment of court-appointed counsel.”

42 U.S.C. § 1997e(d)(3). In other words, the district court has

authority to award attorney’s fees up to 150 percent of the

hourly rate for counsel established in the Criminal Justice Act,

18 U.S.C. § 3006A.

Section 3006A requires every district court, with the

approval of the judicial counsel of the relevant circuit, to fur-

nish representation for criminal defendants who lack the

financial capacity to hire an attorney themselves. Relevant

here, the statute sets forth the maximum hourly rate for pay-

ment of court-appointed counsel. Specifically, it states that

“[a]ny attorney appointed pursuant to this section” shall “be

compensated at a rate not exceeding $60 per hour for time

expended in court . . . unless the Judicial Conference deter-

mines that a higher rate of not in excess of $75 per hour is jus-

tified for a circuit or for particular districts within a circuit.”

18 U.S.C. § 3006A(d)(1). It also allows the Judicial Confer-

ence to raise the maximum hourly rate above $75 per hour

from time to time pursuant to a complex formula set forth in

the statute. See id. Further, it requires the Judicial Conference

to “develop guidelines for determining the maximum hourly

rates for each circuit . . . with variations by district, where

appropriate.” Id.

[2] In 2000, the Judicial Conference increased the maxi-

mum hourly rate for court-appointed counsel to $113 in all

ninety-four judicial districts, effective April 1, 2002.1 See

1

Specifically, the Defender Services Committee of the Judicial Confer-

ence recommended a rate of $113, and the full Conference ratified this

recommendation. See Report of the Proceedings of the Judicial Confer-

ence of the United States (Sept. 19, 2000), http://www.uscourts.gov/

FederalCourts/JudicialConference/Proceedings/Proceedings.aspx?doc=/

uscourts/FederalCourts/judconf/proceedings/2000-09.pdf; see also H.R.

Rep. No. 107-139, at 93 (2001) (noting that a rate increase of $113 was

“authorized by the Criminal Justice Act”); H.R. Conf. Rep. 107-278, at

142 (2001) (adopting the language of H.R. Rep. 107-139 by reference).

PEREZ v. CATE 707

Admin. Office of the U.S. Courts, Fiscal Year 2002 Congres-

sional Budget Summary 6.13 (Feb. 2001); see also Johnson v.

Daley, 339 F.3d 582, 584 n.† (7th Cir. 2003) (“In September

2000 the Judicial Conference authorized use of the $75 rate

for all work nationwide and determined that the inflation-

adjusted rate would be $113 per hour . . . .”). Accordingly,

reading the PLRA and the Criminal Justice Act together, the

PLRA allows an award of attorney’s fees in the Northern Dis-

trict of California based on an hourly rate up to 150 percent

of $113, or $169.50.

We must next determine how the $169.50 per hour cap on

attorney’s fees applies to paralegal fees. Although the PLRA

does not directly address paralegal fees, the Supreme Court

has provided guidance on this issue in two opinions, Jenkins,

491 U.S. 274, and Richlin Security Service Co. v. Chertoff,

553 U.S. 571 (2008).

In Missouri v. Jenkins, the Court was tasked with interpret-

ing the Civil Rights Attorney’s Fees Awards Act of 1976,

which provides for a “reasonable attorney’s fee as part of the

costs.” 42 U.S.C. § 1988(b); Jenkins, 491 U.S. at 276. Jen-

kins, 491 U.S. at 276. This is the same statute referenced in

the PLRA. See 42 U.S.C. § 1997e(d)(1) (“In any action

brought by a prisoner who is confined to any jail, prison, or

other correctional facility, in which attorney’s fees are autho-

rized under section 1988 of [this title] . . . .”) (emphasis

added). The Court viewed as “self-evident” that a “reasonable

attorney’s fee” could not have been “meant to compensate

only work performed personally by members of the bar.” Jen-

kins, 491 U.S. at 285. Instead, the Court explained, “reason-

able attorney’s fee” refers to a “reasonable fee for the work

product of an attorney,” including the work of “secretaries,

messengers, librarians, janitors, and others whose labor con-

tributes to the work product for which an attorney bills her

client,” as well as “other expenses and profit.” Id.

[3] Because there was no basis for distinguishing parale-

gals from librarians, the only “question [was] how the work

708 PEREZ v. CATE

of paralegals [was] to be valuated.” Id. The Court reasoned

that an attorney could include paralegal work as part of the

attorney’s hourly fee and thus charge a higher rate to cover

the value of the paralegal’s services. Id. at 286-87. Alterna-

tively, the attorney could bill separately for the paralegal’s

services at market rates. Id. Concluding that the latter option

did not give the attorney a windfall but actually made “eco-

nomic sense” and could result in cost-savings, the Court held

attorney’s fees under § 1988(b) can include separately billed

paralegal fees, so long as these fees “are consistent with mar-

ket rates and practices.” Id. at 287-88.

[4] The Court affirmed the continued vitality of Jenkins in

Richlin, which held that separately billed paralegal fees were

compensable under the Equal Access to Justice Act. 553 U.S.

at 590. This act permits an eligible prevailing party to recover

“fees and other expenses incurred by that party in connection

with a proceeding before an administrative agency.” Id. at 576

(quoting 5 U.S.C. § 504(a)(1)) (internal quotation marks omit-

ted). The Court explained that “[u]nder the reasoning of Jen-

kins, we take it as ‘self-evident’ that when Congress

instructed agencies to award ‘attorney . . . fees’ to certain par-

ties prevailing against the Government, that term was

intended to embrace paralegal fees as well.” Id. at 581. Jen-

kins and Richlin thus make clear that where, as here, a party

is entitled to attorney’s fees under 42 U.S.C. § 1988, they

include separately billed paralegal fees at the market rate. Our

conclusion in this regard is buttressed by the fact that the

PLRA post-dates Jenkins. See Comm’r v. Keystone Consol.

Indus., 508 U.S. 152, 159 (1993) (noting presumption that

Congress is aware of “settled judicial . . . interpretation[s]” of

terms when it enacts a statute).

[5] Therefore, because the PLRA allows an award of attor-

ney’s fees in the Northern District of California based on an

hourly rate up to $169.50, and because attorney’s fees include

separately billed paralegal fees, we conclude that the PLRA

allows an award of paralegal fees up to $169.50 per hour. As

PEREZ v. CATE 709

the parties do not dispute that $169.50 per hour is below the

paralegal market rate in the Bay Area, the district court did

not abuse its discretion in awarding plaintiffs $169.50 per

hour in this case.

III

The prison officials make a three-part argument as to why

we should read the PLRA as capping paralegal fees at a lower

hourly rate than the rate for court-appointed counsel. First, the

prison officials note that § 3006A requires the Judicial Con-

ference to “develop guidelines for determining the maximum

hourly rates for each circuit . . . with variations by district,

where appropriate.” 18 U.S.C. § 3006A(d)(1). Second, they

assert that the Judicial Conference has discharged this obliga-

tion by promulgating the Guide to Judiciary Policy, Volume

7: Defender Services, which “sets forth Judicial Conference

policy on,” among other things, “payment of private ‘panel’

attorneys.” 7A Guide to Judiciary Policy § 120, http://

www.uscourts.gov/FederalCourts/AppointmentOfCounsel/

Viewer.aspx?doc=/uscourts/FederalCourts/AppointmentOf

Counsel/vol7/Part-A.pdf (last revised Aug. 2, 2010). Section

320.70.50 of Volume 7 of the Guide provides that for services

of paralegals, among other non-secretarial support personnel,

“the court will determine a reasonable hourly compensation

rate that may not exceed the lesser of the rate paid to counsel

under the CJA or the rate typically charged by counsel to a

fee-paying client for such services.” Id. § 320.70.50(a). The

prison officials assert that this section constitutes a delegation

of authority to district courts to determine hourly rates for par-

alegals. Third, the prison officials assert that the Northern

District of California has exercised this delegation in its Gen-

eral Order No. 2 and its Criminal Justice Act Panel Attorney

Manual, which provide that the hourly rate for paralegals may

not exceed $55 per hour for contract paralegals or the salaried

hourly rate, plus costs of employer-paid basic benefits, for

paralegals who are employees. See United States District

Court for the Northern District of California, Criminal Justice

710 PEREZ v. CATE

Act Panel Attorney Manual (Dec. 30, 2009),

www.cand.uscourts.gov (click “CJA” tab, select “CJA Policy

Manual,” then follow “Manual” hyperlink). Accordingly, the

prison officials conclude that the PLRA limits paralegal fees

to no more than 150 percent of the $55 hourly rate established

under the Manual, or $82.50.

[6] We disagree with this analysis. First, by its terms, the

PLRA establishes that the rate for attorney’s fees will be 150

percent of a single, benchmark rate: the “hourly rate estab-

lished under section 3006A of title 18, United States Code, for

payment of court-appointed counsel.” 42 U.S.C.

§ 1997e(d)(3). The PLRA does not authorize a court to award

attorney’s fees based on any rate other than this benchmark

amount; therefore, a court making the calculation required by

the PLRA is not limited by the hourly rates suggested by the

Judicial Conference or established by the Northern District of

California for payment of paralegals under the Criminal Jus-

tice Act. Second, although the prison officials make much of

the direction in 18 U.S.C. § 3006A to develop guidelines for

determining the maximum hourly rates for attorney’s fees,

such guidelines are not binding on a court tasked with deter-

mining the maximum allowable hourly rate under the PLRA,

because such guidelines do not themselves constitute the Judi-

cial Conference’s determination of the rate that is justified for

a circuit or district. Rather, § 3006A makes clear that the fees

for court-appointed counsel mandated by that section are

either $60 per hour or the higher amount determined by the

Judicial Conference, and here the Judicial Conference has

determined that $113 is justified for the Northern District of

California. See note 1 and accompanying text, supra.

[7] Finally, the prison officials argue that their interpreta-

tion of the PLRA is consistent with Congress’s intent in

enacting a statute limiting fees in prisoner cases, namely “to

curtail frivolous prisoners’ suits and to minimize the costs—

which are borne by taxpayers—associated with those suits.”

Madrid v. Gomez, 190 F.3d 990, 996 (9th Cir. 1999). But as

PEREZ v. CATE 711

plaintiffs argue, Congress could have reasonably decided that

placing a strict cap on attorney’s fees, linked to the rate estab-

lished under the Criminal Justice Act for court-appointed

counsel, was sufficient to further this policy. The prison offi-

cials also note the incongruity of authorizing payment for par-

alegals at the same hourly rate as attorneys. Plaintiffs,

however, explain that this anomaly is the result of a steady

increase in both paralegal and attorney rates from 2002 to

2008, when the Criminal Justice Act failed to increase the

hourly rate for court-appointed counsel.2 As a result, both the

$113 per hour maximum rate for attorneys under the Criminal

Justice Act, and even 150 percent of that rate as allowed

under the PLRA, are below the market rate for attorneys and,

now, paralegals. According to plaintiffs, this anomaly has

diminished now that the Judicial Conference has raised the

maximum hourly rate for court-appointed counsel to $142

(150 percent of which totals $213) per hour. See Admin.

Office of the U.S. Courts, Fiscal Year 2010 Congressional

Budget Summary 6 (Feb. 2009), http://jnet.ao.dcn/

Finance_and_Budget/Cong_Budget_Summary/FY_2010_

Congressional_Budget_Summary.html.

Notwithstanding these policy considerations, we are bound

by the plain language of the statute, and must “presume that

[the] legislature says in a statute what it means and means in

a statute what it says there.” BedRoc Ltd. v. United States, 541

U.S. 176, 183 (2004) (plurality opinion) (quoting Conn. Nat’l

Bank v. Germain, 503 U.S. 249, 253-54 (1992)) (internal quo-

tation marks omitted). Because the PLRA limits courts to an

hourly rate that is 150 percent of the rate established for

court-appointed counsel under the Criminal Justice Act and

does not set a separate benchmark rate for paralegal fees, we

affirm the district court’s order granting plaintiffs’ motion to

2

The Judicial Conference considered the $113 rate authorized in 2002

to be merely a cost of living increase. See Admin. Office of the U.S.

Courts, supra, at 6.10.

712 PEREZ v. CATE

compel payment of $3,553 in paralegal fees.

AFFIRMED.