Opposition Brief — David Shinn, Director, Arizona Department of Corrections, et al., Petitioners v. Shawn Jensen, et al.
Supreme Court briefDec 8, 2020
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No. 20-360
IN THE
Supreme Court of the United States
d
DAVID SHINN , ET AL .,
—v.—
Petitioners,
SHAWN JENSEN , ET AL .,
Respondents.
ON PETITION FOR WRIT OF CERTIORARI FROM THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT
BRIEF IN OPPOSITION TO PETITION
FOR WRIT OF CERTIORARI
David D. Cole
David C. Fathi
Counsel of Record
Jennifer Wedekind
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
915 15th Street, N.W.
Washington, D.C. 20005
dfathi@aclu.org
Donald Specter
PRISON LAW OFFICE
1917 Fifth Street
Berkeley, CA 94710
Jennesa Calvo-Friedman
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
125 Broad Street
New York, NY 10004
Corene T. Kendrick
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
39 Drumm Street
San Francisco, CA 94111
Counsel for Respondents Shawn Jensen, et al.
i
QUESTION PRESENTED
The Ninth Circuit, ruling in favor of Petitioners,
reversed and remanded for further consideration a
district court order enhancing a fee award in a prison
conditions case that had been settled through a courtapproved stipulation between the parties. Because the
district court on remand has not yet determined
whether an enhancement is appropriate, the petition
is premature. Should the Court decide otherwise, the
Question Presented is:
Whether, in a stipulation between the parties
authorizing “reasonable attorneys’ fees . . . to be
determined by the Court,” the incorporation by
reference of 42 U.S.C. § 1997e(d)—limiting the hourly
rate for attorneys’ fees in prison conditions cases—
prohibits the district court from awarding an
enhancement when § 1997e(d) does not address
enhancements, and at the time of the stipulation case
law permitted an enhancement in exceptional
circumstances.
ii
TABLE OF CONTENTS
PAGE
QUESTION PRESENTED . . . . . . . . . . . . . . . . . . .
i
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . .
iii
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . .
1
STATEMENT OF THE CASE . . . . . . . . . . . . . . . .
3
I.
Underlying Facts . . . . . . . . . . . . . . . . . . . .
3
A. The Stipulation’s Fee Provision . . . .
7
B. Fee Proceedings Below . . . . . . . . . . . .
8
REASONS FOR DENYING
THE PETITION . . . . . . . . . . . . . . . . . . . . . . . . .
10
I.
This Case Is A Poor Vehicle To Consider
The Question Of Fee Award
Enhancements Under The PLRA . . . . .
10
The Ninth Circuit’s Opinion Does Not
Create A Circuit Split . . . . . . . . . . . . . . . .
13
III. The Ninth Circuit’s Ruling Does
Not Conflict With This Court’s
Precedent . . . . . . . . . . . . . . . . . . . . . . . . . . .
18
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
24
II.
iii
TABLE OF AUTHORITIES
PAGE(S)
Cases
Blum v. Stenson,
465 U.S. 886 (1984) . . . . . . . . . . . . . . . . . . . . . . 16, 20
Boivin v. Black,
225 F.3d 36 (1st Cir. 2000) . . . . . . . . . . . . . . . . 16, 17
Brown & Bain, P.A. v. O’Quinn,
518 F.3d 1037 (9th Cir. 2008) . . . . . . . . . . . . .
13
City of Burlington v. Dague,
505 U.S. 557 (1989) . . . . . . . . . . . . . . . . . . . 14, 15, 17
Covington v. District of Columbia,
57 F.3d 1101 (D.C. Cir. 1995) . . . . . . . . . . . . .
20
Cunningham v. Cty. of Los Angeles,
879 F.2d 481 (9th Cir. 1988) . . . . . . . . . . . . . .
15
Fischer v. SJB-P.D. Inc.,
214 F.3d 1115 (9th Cir. 2000) . . . . . . . . . . . . .
15
Ginest v. Bd. of Cnty. Comm’rs
of Carbon Cnty., WY,
423 F. Supp. 2d 1237 (D. Wyo. 2006). . . . . . .
14
Hensley v. Eckerhart,
461 U.S. 434 (1983) . . . . . . . . . . . . . . . . . . . 14, 16, 19
Johnson v. Breeden,
280 F.3d 1308 (11th Cir. 2002) . . . . . . . . . . . . 16, 17
Kelly v. Wengler,
7 F. Supp. 3d 1069 (D. Idaho 2014),
aff’d, 822 F.3d 1085 (9th Cir. 2016) . . . 14, 19, 21, 22
Kerr v. Screen Guild Extras, Inc.,
526 F.2d 67 (9th Cir. 1975) . . . . . . . . . . . . . . .
9, 15
iv
PAGE(S)
Martin v. Hadix,
527 U.S. 343 (1999) . . . . . . . . . . . . . . . . . . . 20, 22, 23
Morales v. City of San Rafael,
96 F.3d 359 (9th Cir. 1996) . . . . . . . . . . . . . . .
15
Murphy v. Smith,
138 S. Ct. 784 (2018) . . . . . . . . . . . . . . . . . . 19, 21, 22
Norfolk and Western Ry. Co. v.
American Train Dispatchers Ass’n,
499 U.S. 117 (1991) . . . . . . . . . . . . . . . . . . . . . .
13
Octane Fitness, LLC. v.
ICON Health & Fitness, Inc.,
572 U.S. 545 (2014) . . . . . . . . . . . . . . . . . . . . . .
20
Parsons v. Ryan,
912 F.3d 486 (9th Cir. 2018), cert. denied
sub nom. Ryan v. Jensen,
140 S.Ct. 142 (2019) . . . . . . . . . . . . . . . . . . . . . .
13
Pauma Band of Luiseno Mission Indians of
Pauma & Yuima Reservation v. California,
813 F.3d 1155 (9th Cir. 2015) . . . . . . . . . . . . .
13
Pennsylvania v. Del. Valley Citizens’
Council for Clean Air,
478 U.S. 546 (1986) . . . . . . . . . . . . . . . . . . . 14, 16, 17
Shepherd v. Goord,
662 F.3d 603 (2d Cir. 2011) . . . . . . . . . . . . . . . 16, 17
Skinner v. Uphoff,
324 F. Supp. 2d 1278 (D. Wyo. 2004). . . . . . .
14
W. Virginia Univ. Hosps., Inc. v. Casey,
499 U.S. 83 (1991). . . . . . . . . . . . . . . . . . . . . . . .
12
v
PAGE(S)
Walker v. Bain,
257 F.3d 660 (6th Cir. 2001) . . . . . . . . . . . . . .
16
Webb v. Ada County,
285 F.3d 829 (9th Cir. 2002) . . . . . . . . . . . . . . 17, 18
Statutes
18 U.S.C. § 3006A . . . . . . . . . . . . . . . . . . . . . . . . . .
7, 11
42 U.S.C. § 1988 . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
42 U.S.C. § 1997e, Prison Litigation Reform Act
(“PLRA”) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
42 U.S.C. § 1997e(d) . . . . . . . . . . . . . . . . . . . . . . . . passim
42 U.S.C. § 1997e(d)(1) . . . . . . . . . . . . . . . . . . . . . .
19
42 U.S.C. § 1997e(d)(1)(A) . . . . . . . . . . . . . . . . . . . 16, 17
42 U.S.C. § 1997e(d)(2) . . . . . . . . . . . . . . . . . . . 16, 21, 22
42 U.S.C. § 1997e(d)(3) . . . . . . . . . . . . . . . . . 7, 11, 19, 22
42 U.S.C. § 7604(d), Clean Air Act . . . . . . . . . . . .
14
Rules
Supreme Court Rule 10(a) . . . . . . . . . . . . . . . . . . .
17
Other Authorities
Margo Schlanger, Trends in Prisoner
Litigation, as the PLRA Enters Adulthood,
5 U.C. Irvine L. Rev. 153 (2015) . . . . . . . . . . .
23
1
INTRODUCTION
Petitioners seek certiorari to review a court of
appeals decision in their favor, involving a routine
attorneys’ fees dispute governed by the terms of a
court-approved stipulation. The court of appeals
reversed and remanded an award of attorneys’ fees
that included an enhancement. The district court has
yet to act on the remand and reassess the fee request,
and therefore there is no enhancement at this point.
Petitioners’ request for an advisory opinion is
sufficient reason alone to deny the petition.
Moreover, the question whether an enhancement is
available would not be worthy of this Court’s review
even if there were actually an enhancement to review.
Fees are governed here not by a statute, but by a
stipulation between the parties (“Stipulation”). The
Stipulation, entered into in 2014 and approved by the
district court in 2015, requires the Arizona
Department of Corrections to provide a constitutional
level of health care to the people in its custody in ten
state-operated prisons and constitutionally adequate
conditions in its maximum custody units, and provides
for “reasonable attorneys’ fees … to be determined by
the Court,” should Respondents prevail in disputes
with respect to enforcement of the Stipulation.
Petitioners’ years of refusal to comply with basic
provisions in that agreement resulted in several court
orders aimed at achieving compliance with the
Stipulation. As a result, the district court initially
awarded Respondents attorneys’ fees for their efforts
pursuant to the fee provision of the Stipulation. That
provision authorizes “reasonable attorneys’ fees . . . to
be determined by the Court,” and sets the hourly rate
by reference to 42 U.S.C. § 1997e(d). The district court
granted Respondents’ request for an enhancement of
2
their total award, applying Ninth Circuit case law
regarding when enhancements of fee awards are
appropriate. A unanimous panel of the court of appeals
reversed the district court’s fee award, finding both
that it applied the incorrect hourly rate, and that it
abused its discretion in the methodology by which it
calculated the enhancement. The panel remanded the
case to the district court for further proceedings. Thus,
at this point, there is no fee award, much less any
enhancement, to review.
Notwithstanding that they prevailed below in their
appeal of Respondents’ enhancement, and that there
is no fee award to review, Petitioners prematurely ask
this Court to intervene, and to decide in the abstract
whether enhancements are ever available under 42
U.S.C. § 1997e(d), the attorneys’ fee provision of the
Prison Litigation Reform Act (PLRA) when it is the
Stipulation that governs the fee award.. This case is
an improper vehicle to consider that question, for three
reasons.
First, there is no order awarding an enhancement.
If on remand the district court denies an enhancement,
or the court of appeals denies enhancement on appeal,
the question will never be presented. Petitioners seek
an advisory opinion.
Second, the availability of fees in this case is
governed by a provision of the Stipulation, not by the
PLRA as a whole. The interpretation of the
Stipulation’s fee provision does not present an
important question of federal law—indeed, it is
governed by Arizona state law—and would have no
significance beyond this case.
Third, while the Stipulation incorporates one
specific provision of the PLRA, governing the hourly
rate, the Stipulation was negotiated against a
3
backdrop of case law in the Ninth Circuit and beyond
that interpreted federal attorneys’ fees statutes,
including the PLRA, to allow the enhancement of a fee
award in exceptional cases. It is that contemporaneous
legal background, not the Court’s understanding of the
PLRA today, that would have informed the intentions
of the parties at the time the Stipulation was written,
and therefore the meaning of the Stipulation’s terms.
And that historical question also has little or no
significance beyond this case.
Moreover, even if this case actually presented the
question Petitioners pose, involving interpretation not of
this Stipulation but of the PLRA itself, there is no split
in the circuits and no conflict with the decisions of this
Court on that question. The PLRA is silent on the matter
of enhancements. And in other cases interpreting the
PLRA, this Court has declined to treat Congress’s silence
as justification for reading into the statute additional
restrictions beyond those in the text itself.
In sum, Petitioners are asking this Court to issue an
advisory opinion on a question that only one circuit
court has considered, and that would affect the
interpretation of a single settlement agreement
applicable only to one case. The Court should deny the
petition.
STATEMENT OF THE CASE
I. Underlying Facts
This case arises from a class action lawsuit filed by
Respondents in 2012 on behalf of more than 34,000
adults and children housed in Arizona state prisons,
and on behalf of the Arizona Center for Disability Law
4
(“ACDL”). 1 The class action alleged, among other
things, “grossly inadequate” medical, mental health,
and dental care, which subjected all prisoners to a
substantial risk of serious harm, including
“unnecessary pain and suffering, preventable injury,
amputation, disfigurement, and death.” Doc. 1 at 2.
The parties settled the case through a Stipulation in
October 2014. App. 67-86. The district court held that
the Stipulation was necessary to correct constitutional
violations. Doc. 1458 at 1, Att. 1. It further held that
the Stipulation was “fair, adequate, and reasonable,”
Doc. 1458 at 1, and retained jurisdiction to enforce the
Stipulation “through all remedies provided by law”
subject to two exceptions not relevant here. App. 80.
Pursuant to the Stipulation, Petitioners promised to
comply with a series of health care performance
measures designed to bring Arizona’s state-operated
prisons into compliance with the Constitution. App.
69. The Stipulation created systems to monitor
Petitioners’ compliance, App. 69-70, and provided an
enforcement mechanism to ensure that Petitioners
met their obligations. App. 79.
In the years that followed entry of the Stipulation,
Petitioners repeatedly refused to fulfill their
obligations, instead flouting the agreement, raising
“spurious legal arguments” and failing to comply with
orders of the district court. See, e.g., Doc. 2898 at 1-2
(holding Petitioners in contempt and detailing
Petitioners’ repeated failure to comply with both the
Stipulation and court orders enforcing the
1 Petitioners list ACDL, an institutional plaintiff in the matter,
as a party to this proceeding. Pet. ii. However, ACDL was not a
party to the district court motion for fees, nor a party to the fees
appeal to the Ninth Circuit, and therefore is not a Respondent to
the Petition.
5
Stipulation); App. 60 (noting enforcement of the
Stipulation “could have been simple if Defendants had
been able to comply with the Stipulation’s
requirements . . . and had not raised spurious legal
arguments.”); App. 61 (“Defendants have been unable
to comply with multiple performance measures . . . .”).
Respondents therefore were forced repeatedly to
utilize the Stipulation’s enforcement mechanism.
Enforcement litigation proved necessary, not only to
enforce the Stipulation, but even to resolve disputes
over clearly defined terms. As just one example,
Petitioners required Respondents to seek court
resolution of what it means for a prisoner to be “seen”
by a mental health clinician, even though the
Stipulation itself defined that term as “an encounter
that takes place in a confidential setting outside the
prisoner’s cell, unless the prisoner refuses to exit his
or her cell for the encounter.” See App. 29 (discussing
the action necessary to enforce this definition). In
direct contravention of this definition, Petitioners
unilaterally sought to satisfy this requirement with
non-confidential group and cell-front encounters
where the prisoner was not allowed to leave the cell.
Id.
When this was brought to court, Petitioners made no
effort to explain how non-confidential treatment
satisfied the Stipulation’s requirement of confidential
treatment, or how counseling while the patient was
confined to his cell satisfied a requirement that the
counseling take place outside the cell unless the
prisoner refused to leave. They instead argued that
mental health staff could complete a full mental health
evaluation through the narrow tray slot in a solid cell
door and that group counseling was adequate. The
dispute ultimately required three rounds of briefing
and two district court orders requiring Petitioners to
6
comply with the plain language of the Stipulation. See,
e.g., App. 29-30; App. 57 (“[T]he Court has resolved a
long string of disputes about how to interpret various
terms in the Stipulation such as ‘90 days’ and ‘being
seen.’”).
Each of Respondents’ enforcement actions followed
a similarly protracted pattern. Between October 2015
and June 2017, Respondents served Petitioners with
multiple Notices of Non-Compliance, extensively
detailing Petitioners’ repeated failures to comply with
the Stipulation and documenting serious harm to class
members. Respondents also filed four separate
Motions to Enforce the Stipulation regarding
noncompliance with nearly 40% of the health care
measures in the Stipulation as well as Petitioners’
inadequate monitoring methodology. And Respondents
were required to seek emergency relief regarding
Petitioners’ retaliation against class members. The
district court ordered Petitioners to provide a letter to
class members “assuring interviewees freedom from
any retaliation for their participation in the interviews
conducted by Class Counsel.” Doc. 1734.
In connection with these enforcement efforts, the
district court made more than 100 findings of
substantial non-compliance. See, e.g., Doc. 1583; Doc.
1709; Doc. 2030. Based on those findings, the district
court ordered Petitioners to submit remedial plans to
reach compliance with the Stipulation. Among other
enforcement actions, the district court conducted four
days of evidentiary hearings on the accuracy and
reliability of Petitioners’ self-monitoring methods.
Respondents’ near-continuous enforcement work for
the relevant time period culminated in the district
court’s June 14, 2017 order providing that continued
non-compliance would result in an order to show cause
7
why fines of $1,000 should not be imposed for each
failure to comply. Doc. 2124.
A. The Stipulation’s Fee Provision
The Stipulation, agreed to by both parties, provides
for attorneys’ fees in connection with work necessary
to enforce the agreement, as follows:
In the event that Plaintiffs move to enforce
any aspect of this Stipulation and the
Plaintiffs are the prevailing party with
respect to the dispute, the Defendants agree
that they will pay reasonable attorneys’ fees
and costs, including expert costs, to be
determined by the Court. The parties agree
that the hourly rate of attorneys’ fees is
governed by 42 U.S.C. § 1997e(d).
App. 82 ¶ 43.
The Stipulation thus authorizes “reasonable
attorneys’ fees . . . to be determined by the Court.” Id.
Section 1997e(d), the sole reference to PLRA fees in the
Stipulation, addresses only the calculation of the
hourly rate, and provides that “No award of attorney’s
fees . . . shall be based on an hourly rate greater than
150 percent of the hourly rate established under
section 3006A of title 18 for payment of courtappointed counsel.” 42 U.S.C. § 1997e(d)(3).
Beyond authorizing “reasonable attorneys’ fees,” the
Stipulation is silent on whether and under what
circumstances the court may grant an enhancement of
any attorneys’ fees award, as is generally permissible
under attorneys’ fees regimes in exceptional cases
when a prevailing party meets each of the several
factors courts consider. As detailed below in Part I,
the Stipulation was negotiated in 2014 against a
backdrop of caselaw making clear that enhancements
8
were available under both the PLRA and other federal
attorneys’ fees statutes.
B. Fee Proceedings Below
In September 2017, pursuant to the Stipulation,
Respondents sought attorneys’ fees for enforcement
work completed between October 1, 2015 and June 30,
2017. Doc. 2276 (modified by Doc. 2543). Respondents
requested fees only for attorneys and support staff
working for or contracted with two not-for-profit legal
organizations, the American Civil Liberties Union and
the Prison Law Office. 2 Doc. 2276 n. 1.
As part of their fee request, Respondents sought
enhancement of the total award. Doc. 2276 at 28.
Petitioners mischaracterize Respondents’ request as
based solely on the inadequacy of the PLRA’s hourly
rate incorporated into the Stipulation. Pet. 4. In fact,
Respondents based their request for an enhancement
on counsel’s “superior performance, commitment of
resources, and excellent results[.]” Doc. 2276 at 21.
Petitioners opposed Respondents’ request for fees,
including their request for an enhancement. See Doc.
2402 at 16-25.
The district court awarded Respondents fees. See
App. 65. The court held that under the Stipulation,
Respondents are entitled to fees where “Defendants
have not satisfied their obligations under the
Stipulation” and where that failure required
“Plaintiffs to move to enforce it.” App. 57-58. The court
2 Petitioners’ assertion that the case involves fees for an “army
of lawyers” including a national law firm is inaccurate. See Pet.
19. No fees were sought on behalf of any attorney at a national
law firm. As the district court noted, “Plaintiffs are seeking fees
only for a subset of the attorneys who are counsel of record.”
App. 62.
9
also granted an enhancement of the overall award. See
App. 59. The court noted that the “parties do not
dispute that analysis of an enhancement is governed
by Kerr v. Screen Guild Extras, Inc., 526 F.2d 67, 70
(9th Cir. 1975),” a case setting forth factors for
attorneys’ fees under a federal labor statute that have
been applied generally to attorneys’ fees cases. Id. The
court held that Respondents “satisfy the Kerr factors.”
Id.
Petitioners appealed. 3 The court of appeals
unanimously affirmed in part and reversed and
remanded in part. App. 13. On the only issue
presented here, the court of appeals reversed and
remanded the district court’s grant of an
enhancement. The court acknowledged that an
enhancement is in theory available in exceptional
cases, but determined that the district court “abused
its discretion by enhancing the fee award” here
because it improperly double-counted some of the Kerr
factors. App. 40-41. The court therefore vacated the
fees order and remanded to the district court with
instructions to reconsider whether an enhancement is
merited and if so, to properly recalculate using the
Kerr factors. App. 42. 4 The district court has yet to
undertake that analysis on remand.
The Ninth Circuit denied Petitioners’ petition for
rehearing en banc. App. 88.
3 Petitioners also appealed ten other district court orders
imposing contempt sanctions, appointing expert witnesses, and
enforcing Respondents’ obligations under the Stipulation. See
App. 9. The court of appeals affirmed the contempt order and two
other enforcement orders, and dismissed the remainder of
Petitioners’ appeals for lack of jurisdiction. App. 13.
4 The court of appeals also vacated and remanded for
recalculation with a revised hourly rate. See App. 39-40, 43.
10
REASONS FOR DENYING THE PETITION
I. This Case Is A Poor Vehicle To Consider The
Question Of Fee Award Enhancements Under
The PLRA.
Petitioners ask the Court to review whether
enhancements of attorneys’ fees awards are available
under the PLRA. But this case is an especially poor
vehicle to consider that question, for three reasons.
First, and dispositively, the court of appeals did not
uphold an enhancement of the fee award, but vacated
the award and remanded to the district court for
reconsideration. Thus, there is no enhancement to
review. Second, fee awards in this case are governed
by a Stipulation expressly authorizing “reasonable
attorneys’ fees,” not by the PLRA, and therefore any
decision from this Court would have necessarily
limited impact. Third, even if the Court were to deem
PLRA jurisprudence on enhancements relevant, at the
time the parties entered into the Stipulation, courts
interpreted the PLRA, like other attorneys’ fees
statutes, to allow enhancements in exceptional cases.
That contemporaneous statutory interpretation, in
force when the agreement was signed, and not the
meaning of the PLRA today, controls the
interpretation of the Stipulation. And that historical
question is of significance to few, if any, other cases.
First, consideration by the Court at this stage is
premature because the court of appeals did not uphold
an enhancement. Rather, it agreed with Petitioners
that the district court had abused its discretion in
granting an enhancement, by misapplying Ninth
Circuit precedent on the factors to be considered in
assessing whether an enhancement should be
awarded. App. 41. As a result, there is no
enhancement to review, and there may never be an
11
enhancement. Petitioners prevailed in their appeal of
Respondent’s enhancement, but nonetheless seek this
Court’s review.
If the district court on remand grants an
enhancement, and if that enhancement is upheld on
appeal, Petitioners are free to seek this Court’s review
at that time. But without any actual enhancement
award, the Court’s intervention would be premature
and unnecessary.
Second, because the availability of an enhancement
in this case is governed by the Stipulation, and not by
the PLRA itself, this case does not present an
opportunity for the Court to answer the question of
statutory interpretation presented by Petitioners. The
plain language of the Stipulation authorizes
“reasonable attorneys’ fees . . . to be determined by the
Court.” It then incorporates by reference only a single
PLRA provision: that defining the hourly rate. See
App. 82 ¶ 43 (“The parties agree that the hourly rate of
attorneys’ fees is governed by 42 U.S.C. § 1997e(d).”)
(emphasis added). The PLRA’s hourly rate provision,
in turn, provides, “No award of attorney’s fees . . . shall
be based on an hourly rate greater than 150 percent of
the hourly rate established under section 3006A of
title 18 for payment of court-appointed counsel.”
42 U.S.C. § 1997e(d)(3). Thus, the Stipulation’s
incorporation of the PLRA is expressly limited to the
hourly rate.
Other aspects of the Stipulation borrow terminology,
such as “prevailing party” and “reasonable attorneys’
fees,” used in many attorneys’ fees statutes, including
42 U.S.C. § 1988. And the Stipulation by its terms
authorizes fees that are not authorized by other
federal attorneys’ fees statutes, such as compensation
for expert witnesses. Compare App. 82 ¶ 43
12
(“Defendants agree that they will pay reasonable
attorneys’ fees and costs, including expert costs, to be
determined by the Court.”) with W. Virginia Univ.
Hosps., Inc. v. Casey, 499 U.S. 83, 102 (1991) (“[W]e
conclude that § 1988 conveys no authority to shift
expert fees.”).
The Stipulation does not expressly address
enhancement of overall awards. It neither prohibits
nor mandates an enhancement, but merely authorizes
“reasonable attorneys’ fees . . . to be determined by the
Court.” App. 82 ¶ 43. The district court, which
approved the Stipulation in the first place, interpreted
the Stipulation to authorize the court “to evaluate the
propriety of such an enhancement.” App. 59. See also
App. 59 n. 2 (recognizing that “[b]efore the Court is the
enforcement of a contractual term”). The Ninth Circuit
affirmed that interpretation of the Stipulation. App. 40.
Petitioners are therefore incorrect when they state
that under the Stipulation “any fees awarded” are
“‘governed by 42 U.S.C § 1997e(d)’ of the PLRA.” Pet.
3-4. In fact, the only aspect of a fee award governed by
the PLRA in this case, the hourly rate, is not at issue
here. The availability of an enhancement is governed
not by the PLRA, but by the Stipulation. The question
is whether an enhancement is part of “reasonable
attorneys’ fees . . . to be determined by the Court.”
App. 82 ¶ 43. As a result, any decision this Court
reaches would concern only this particular Stipulation,
and would provide no guidance to other courts.
Third, because the authority for fees is the
Stipulation itself, entered in 2014, and not the law as
it stands today, this case is an inappropriate vehicle to
consider whether enhancements are available under
the PLRA today. A decision by this Court that the
PLRA prohibits an enhancement would not affect the
13
outcome of this case, as the governing settlement
agreement must be interpreted according to the intent
of the drafters as informed by the state of the law at
the time the Stipulation was signed. See, e.g., Norfolk
and Western Ry. Co. v. American Train Dispatchers
Ass’n, 499 U.S. 117, 130 (1991) (“Laws which subsist
at the time and place of the making of a contract, and
where it is to be performed, enter into and form part of
it[.]”) (quoting Farmers and Merchants Bank of
Monroe v. Federal Reserve Bank of Richmond, 262 U.S.
649, 660 (1923)). The “fundamental goal of contract
interpretation is to give effect to the mutual intent of
the parties as it existed at the time of contracting.”
Pauma Band of Luiseno Mission Indians of Pauma &
Yuima Reservation v. California, 813 F.3d 1155, 1165
(9th Cir. 2015) (emphasis in original) (internal
quotation marks and citations omitted). Moreover,
because the Stipulation is a contract entered into in
Arizona, its interpretation is a question of Arizona
law. 5 See Brown & Bain, P.A. v. O’Quinn, 518 F.3d
1037, 1040 (9th Cir. 2008) (applying Arizona law and
holding “Arizona courts attempt to ascertain and give
effect to the intention of the parties at the time the
contract was made.”) (citation omitted).
The background case law was clear when the parties
entered into the Stipulation that enhancements were
generally available as “reasonable attorneys’ fees”
5 In a previous appeal by Petitioners, the court of appeals held
that the Stipulation must be interpreted according to Arizona
contract law. Parsons v. Ryan, 912 F.3d 486, 487 (9th Cir. 2018)
(interpreting the Stipulation in this case and applying “Arizona
contract law because the parties entered into the Stipulation in
Arizona, Defendants are senior officials of the Arizona
Department of Corrections, and the Stipulation concerns the
policies and practices of the Arizona prison system.”), cert. denied
sub nom. Ryan v. Jensen, 140 S.Ct. 142 (2019).
14
under a variety of fee statutes, including the PLRA.
See City of Burlington v. Dague, 505 U.S. 557, 562
(1989) (“This language is similar to that of many other
fee shifting statutes, see, e.g. 42 U.S.C. §§ 1988, 2000e5(k), 7604(d); our case law construing what is a
‘reasonable’ fee applies uniformly to all of them.”)
(emphasis added) (citation omitted). The parties
signed the Stipulation in October 2014, and the court
approved the settlement in February 2015. See App.
82 and Doc. 1458. The law in the Ninth Circuit at that
time clearly provided that enhancements were
available under the PLRA, just as they are under other
fee statutes, including 42 U.S.C. § 1988, and the Clean
Air Act, 42 U.S.C. § 7604(d). See Kelly v. Wengler, 7 F.
Supp. 3d 1069, 1083 (D. Idaho 2014), aff’d, 822 F.3d
1085 (9th Cir. 2016) (holding enhancements were
available under the PLRA and awarding an
enhancement); see also Hensley v. Eckerhart, 461 U.S.
434, 434 (1983) (enhancements available under
§ 1988); Pennsylvania v. Del. Valley Citizens’ Council
for Clean Air, 478 U.S. 546, 557 (1986) (enhancements
available under Clean Air Act); Ginest v. Bd. of Cnty.
Comm’rs of Carbon Cnty., WY, 423 F. Supp. 2d 1237,
1241 (D. Wyo. 2006) (enhancements available under
PLRA); Skinner v. Uphoff, 324 F. Supp. 2d 1278, 128788 (D. Wyo. 2004) (same). The parties included no
language in the Stipulation to depart from that
understanding or to prohibit the award of an
enhancement in appropriate circumstances.
At the time they entered into the Stipulation,
therefore, the parties contemplated that attorneys’
fees statutes, and the PLRA in particular, allowed for
enhancement of an overall award as “reasonable
attorneys’ fees” in extraordinary circumstances. That
contemporaneous state of the law, and the parties’
understanding of it at the time of the Stipulation,
15
control in this case. This case is therefore an
inappropriate vehicle for providing guidance to courts
applying the PLRA today.
II. The Ninth Circuit’s Opinion Does Not Create
A Circuit Split.
There is no circuit split regarding the availability of
an enhancement. The Ninth Circuit is the only court
of appeals that has considered whether enhancements
are available under this particular Stipulation, and is
also the only court of appeals to have assessed whether
enhancements are available under the PLRA itself.
Petitioners point to no decision of any court of appeals
reaching a different result interpreting language
similar to the Stipulation, or interpreting the PLRA.
Enhancements in the Ninth Circuit are awarded in
“rare” and “exceptional” cases after a fact-specific
analysis and consideration of those factors enumerated
in Kerr that are not already subsumed in the initial
“lodestar” calculation for fees. See Fischer v. SJB-P.D.
Inc., 214 F.3d 1115, 1119 & n. 4 (9th Cir. 2000). 6 The
lodestar method, the “guiding light of our fee-shifting
jurisprudence,” Dague, 505 U.S. at 562, involves two
steps. First, courts determine the “lodestar” amount by
6 The relevant Kerr factors when considering an enhancement
are: (5) the customary fee; (7) time limitations imposed by the
client or the circumstances; (8) the amount involved and the
results obtained; (9) the experience, reputation, and ability of the
attorneys; (10) the ‘undesirability’ of the case; (11) the nature and
length of the professional relationship with the client; and (12)
awards in similar cases. See Kerr, 526 F.2d at 70; Morales v. City
of San Rafael, 96 F.3d 359, 364 n.9 (9th Cir. 1996) (setting forth
factors for enhancement under 42 U.S.C. § 1988). The other Kerr
factors are subsumed in the initial lodestar calculation, and
therefore are not counted when considering whether to enhance
the award. Cunningham v. Cty. of Los Angeles, 879 F.2d 481, 487
(9th Cir. 1988).
16
multiplying the hourly rate by the hours reasonably
expended on the litigation. Hensley, 461 U.S. at 43334. Second, a court may decide to enhance or reduce
the lodestar figure. Id. at 434. See also Blum v.
Stenson, 465 U.S. 886, 901 (1984) (affirming the twostep lodestar analysis and declining to award an
enhancement based on the facts of the case before the
Court). As such, upward or downward adjustments
“are proper only in certain ‘rare’ and ‘exceptional’
cases, supported both by ‘specific evidence’ on the
record and detailed findings by the lower courts.”
Citizens’ Council for Clean Air, 478 U.S. at 565
(quoting Blum, 465 U.S. at 898-901).
None of the cases Petitioners cite as purportedly
conflicting with the decision below even addresses the
availability of an enhancement under the PLRA.
Johnson v. Breeden, 280 F.3d 1308 (11th Cir. 2002),
does not even mention enhancements. It involved a
different provision of the PLRA, not at issue here, 42
U.S.C. § 1997e(d)(1)(A), which limits fees to those
“directly and reasonably incurred in proving an actual
violation of the plaintiff’s rights.” Id. at 1326. The
Eleventh Circuit merely held that the district court
abused its discretion by awarding attorneys’ fees for
all work expended on the case rather than only for
work directly and reasonably incurred in proving the
plaintiff’s sole successful claim of excessive force. Id.
at 1327. The Stipulation does not incorporate that
provision.
Boivin v. Black, Walker v. Bain, and Shepherd v.
Goord are similarly off-topic. They concern 42 U.S.C.
§ 1997e(d)(2), a provision of the PLRA that governs
only fees stemming from monetary judgments. See
Boivin v. Black, 225 F.3d 36 (1st Cir. 2000); Walker v.
Bain, 257 F.3d 660 (6th Cir. 2001); Shepherd v. Goord,
662 F.3d 603 (2d Cir. 2011). Both the First Circuit in
17
Boivin and the Second Circuit in Shepherd specifically
noted that their rulings were limited to cases involving
monetary damages. See Shepherd, 662 F.3d at 607 n.4;
Boivin, 225 F.3d at 41 n.4. Because the Stipulation did
not cite this provision, and this case does not involve a
monetary judgment, these cases are inapposite. Webb
v. Ada County, 285 F.3d 829 (9th Cir. 2002), another
Ninth Circuit decision, also does not even address
enhancements. 7
Petitioners suggest these cases support the
proposition that the “lodestar method is inapplicable
in prisoner cases . . . .” Pet. 11. But none of the cases
cited rejects the lodestar method, which long ago had
“become the guiding light of our fee-shifting
jurisprudence,” Dague, 505 U.S. at 562; Citizens’
Council for Clean Air, 478 U.S. at 564 (endorsing the
Court’s prior adoption of the lodestar method to
determine a “reasonable attorney’s fee” under feeshifting statutes).
None of Petitioners’ cited cases rejected the lodestar
method. Johnson determined that the district court’s
lodestar calculation was improper only “because it
ignore[d] the limitations set forth in § 1997(e)(d)(1)(A)”
when it awarded fees for unsuccessful claims in
addition to successful claims. Johnson, 280 F.3d at
1327. And contrary to Petitioners’ characterization,
the Ninth Circuit in Webb did not “agree[] that the
lodestar method did not apply in prisoner cases.” Pet.
11. Rather, it came to the unremarkable conclusion
that the hourly rate portion of the attorneys’ fee
calculation is controlled by the PLRA for services
7 Even if the decision below created a conflict with Webb – and
it does not – an intra-circuit conflict does not warrant certiorari.
Cf. Supreme Court Rule 10(a).
18
performed after the PLRA’s effective date. Webb, 285
F.3d at 840 n.6.
Use of the PLRA hourly rate does not fundamentally
alter the lodestar analysis. Prior to the PLRA, the
hourly rate was “‘guided by the rate prevailing in the
community for similar work performed by attorneys of
comparable skill, experience, and reputation.’” Id. at
840 (quoting Chalmers v. City of L.A., 796 F.2d 1205,
1210-11 (9th Cir.1986)). Following enactment of the
PLRA, “the method of calculating the hourly rate for
attorney’s fees is dictated by the PLRA.” Id. at 840 n.6.
As the court of appeals’ decision in this very case
shows, the remainder of the lodestar analysis remains
the same.
III. The Ninth Circuit’s Ruling Does Not Conflict
With This Court’s Precedent.
The fact that in ruling for Petitioners, the court of
appeals declined to accept Petitioners’ sweeping
argument that enhancements are absolutely precluded,
would not merit this Court’s review, even if all the
other obstacles to review enumerated above were not
present.
As discussed above, the Stipulation authorizes
“reasonable attorneys’ fees . . . to be determined by the
Court,” and cites only a single provision of the PLRA
for purposes of setting the hourly rate. Given the
general availability of enhancements under attorneys’
fees law at the time the Stipulation was entered, the
“reasonable attorneys’ fees” language is sufficient to
permit an enhancement in exceptional circumstances,
as attorneys’ fees jurisprudence generally provided in
2014 and 2015.
But even if the fees in this case were governed
directly by the PLRA itself, rather than by the
19
Stipulation entered in 2015, the lower court’s decision
would be correct. The court of appeals correctly
concluded that the PLRA did not supersede the
lodestar analysis, but only modified it in two specific
ways. As noted above, the lodestar method, which “had
already ‘achieved dominance in the federal courts’”
when the PLRA was enacted in 1996, Kelly, 822 F.3d
at 1100 (quoting Gisbrecht v. Barnhart, 535 U.S. 789,
801 (2002)), involves two steps: (1) multiplying the
hourly rate by the reasonable number of hours
expended; and (2) adjusting the lodestar upward or
downward to reach the total award. See Hensley, 461
U.S. at 433-34.
Against that judicial backdrop, Congress legislated
two specific modifications to the first step of the
lodestar analysis, and did not seek to change the
second step. The PLRA specifies the hourly rate to be
used. See 42 U.S.C. § 1997e(d)(3). And it limits the
hours eligible for compensation to those “reasonably
incurred.” See 42 U.S.C. § 1997e(d)(1) (limiting
attorneys’ fees to those “directly and reasonably
incurred in proving an actual violation of the plaintiff’s
rights” and “proportionally related to the court ordered
relief” or “directly and reasonably incurred in
enforcing the relief”).
In enacting the PLRA, Congress did not even
address, much less modify, the second step of the
lodestar analysis regarding upward or downward
departures from the lodestar figure. And both Martin
and Murphy, which Petitioners argue are in conflict
with the opinion below, teach that where Congress was
silent in the PLRA, courts should not read additional
provisions into it: “[R]espect for Congress’s prerogatives
as policymaker means carefully attending to the words
it chose rather than replacing them with others of our
own.” Murphy v. Smith, 138 S. Ct. 784, 788 (2018);
20
Martin v. Hadix, 527 U.S. 343, 354 (1999) (holding
that Congress could have, but did not, legislate the
temporal application of the PLRA and therefore
declining to read a retroactive application of the hourly
rate provision into the statute). Statutory analysis
“begins and ends with the text” of the statute. Octane
Fitness, LLC. v. ICON Health & Fitness, Inc., 572 U.S.
545, 553 (2014) (rejecting the lower court’s attempt to
“superimpose” onto a fee shifting statute a framework
not found in the statute’s text).
Petitioners object that an enhancement may be
construed as affecting the hourly rate. But that proves
too much. Under a typical fee-shifting analysis, the
hourly rate is tied to the objective market rate in a
given location for attorneys with certain levels of
experience. See, e.g., Blum, 465 U.S. at 895
(“‘Reasonable fees’ under § 1988 are to be calculated
according to the prevailing market rates in the
relevant community[.]”) For example, in Washington,
D.C., the U.S. Department of Justice’s Laffey Matrix
sets the hourly rate for cases brought under feeshifting statutes and ties those rates to years of
experience. See Covington v. District of Columbia, 57
F.3d 1101, 1109 (D.C. Cir. 1995) (discussing the use of
the Laffey Matrix to determine reasonable hourly
rates under § 1988). The PLRA’s hourly rate
parameters serve the same function of providing an
objective source for the hourly rate in cases brought by
incarcerated people, just as the Laffey Matrix or other
objective measures are used in other fee-shifting
matters. And just as attorneys utilizing the Laffey
Matrix may seek an enhancement when the
circumstances warrant, notwithstanding the hourly
rates established by the Laffey Matrix, so too may
attorneys using the PLRA hourly rate. Nothing in the
21
language of the PLRA suggests otherwise—nor does
the Stipulation that actually governs here.
Neither the opinion below, nor Kelly, 822 F.3d 1085,
upon which it relied, conflict with Supreme Court
precedent. Petitioners point to this Court’s decisions in
Murphy and Martin to suggest that a conflict exists.
But neither case addresses the availability of
enhancements under the PLRA. Nor does their
reasoning conflict with the lower court’s use of the
traditional two-step lodestar analysis to determine a
fee award.
Only the second step of the lodestar analysis—in
which the total fees are adjusted up or down in
exceptional circumstances—is at issue here. Yet
neither Murphy nor Martin disclaim, or even discuss,
this step. Indeed, Petitioners concede that Murphy did
not disapprove of enhancements under the PLRA. Pet.
18. The Court in Murphy reviewed only 42 U.S.C. §
1997e(d)(2), which governs attorneys’ fees only in
damages cases, and its holding is specifically limited
to that provision. See Murphy, 138 S. Ct. at 786 (“This
is a case about how much prevailing prisoners must
pay their lawyers.”). As the court of appeals noted,
Murphy “did not disapprove the lodestar method or fee
enhancements in any way, despite explicitly
discussing both the overall ‘surrounding statutory
structure of § 1997e(d)’ and the lodestar method in
particular.” App. 40-41 n.14.
Petitioners suggest that the Court should read
Murphy in sweeping terms to “foreclose[] the availability
of fee enhancements.” Pet. 18. But Murphy did no such
thing. In fact, Murphy recognized that the lodestar
method developed under 42 U.S.C. § 1988 is the
“guiding light of our fee shifting jurisprudence” and
did not disavow its use under the PLRA. Murphy, 138
22
S. Ct. at 789 (quoting Dague, 505 U.S. at 562). To the
contrary, the Court specifically rejected one proffered
argument because it conflicted with § 1988’s
traditional lodestar analysis. See Murphy, 138 S. Ct.
at 790 (“. . . Mr. Murphy effectively seeks to (re)introduce
into § 1997e(d)(2) exactly the sort of unguided and
freewheeling choice . . . that this Court has sought to
expunge from practice under § 1988.”).
This Court in Murphy, like the Ninth Circuit in
Kelly, recognized that the PLRA modified § 1988’s fee
award procedures. See Murphy, 138 S. Ct. at 789;
Kelly, 822 F.3d at 1099. Both cases discuss the limits
on activities and hours that can be compensated.
Murphy, 138 S. Ct. at 789; Kelly, 822 F.3d at 10991100. And both cases acknowledge that the PLRA sets
the hourly rate to be used at step one of the lodestar
analysis. Murphy, 138 S. Ct. at 789; Kelly, 822 F.3d at
1100. 8 But Murphy simply does not address the
availability of enhancements at step two of the
lodestar analysis.
Martin addressed only whether the PLRA’s fee
provisions apply retroactively. See Martin, 527 U.S. at
347. Petitioners’ suggestion that Martin stands for the
proposition that the PLRA capped the “total fee
award” is incorrect. Pet. 15. The “cap” referenced in
Martin referred only to the PLRA’s hourly rate cap in
§ 1997(d)(3), about which there is no dispute here. See
Martin, 527 U.S. at 350 (noting that the “section of the
PLRA at issue here” is § (d)(3), which governs the
8 Petitioners also suggest that the Court in Murphy “removed
the discretion” afforded to district courts under Section 1988 and
the lodestar method. Pet. 1 (emphasis added). Not so. The Court
noted that various provisions of the PLRA, “restrain[,]” not
remove, the discretion of the district court. Murphy, 138 S. Ct. at
789 (emphasis added).
23
hourly rate). This Court in Martin did not consider,
much less “cap,” the second step in the lodestar
analysis. As Justice Scalia noted, “In reality, . . . the
PLRA simply revises the fees provided for by § 1988[.]”
Martin, 527 U.S. at 363 (Scalia, J., concurring in part
and concurring in the judgment).
Finally, allowing an enhancement in “rare” and
“exceptional” cases has not resulted in a proliferation
of frivolous prisoner litigation. More broadly, while
enhancements have been available in prisoner rights
cases since the 1996 enactment of the PLRA, prisoner
litigation has plummeted during that time. See Margo
Schlanger, Trends in Prisoner Litigation, as the PLRA
Enters Adulthood, 5 U.C. Irvine L. Rev. 153, 156 (2015)
(presenting empirical data demonstrating the “steep
decline” in prisoner filings and filing rates following
enactment of the PLRA).
24
CONCLUSION
The petition for certiorari should be denied.
Dated December 7, 2020
Respectfully submitted,
David D. Cole
David C. Fathi
Counsel of Record
Jennifer Wedekind
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
915 15th Street, N.W.
Washington, D.C. 20005
dfathi@aclu.org
Corene T. Kendrick
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
39 Drumm Street
San Francisco, CA 94111
Donald Specter
PRISON LAW OFFICE
1917 Fifth Street
Berkeley, CA 94710
Jennesa Calvo-Friedman
AMERICAN CIVIL LIBERTIES
UNION FOUNDATION
125 Broad Street
New York, NY 10004
Counsel for Respondents
Shawn Jensen, et al.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.