Reply Brief — David Shinn, Director, Arizona Department of Corrections, et al., Petitioners v. Shawn Jensen, et al.

No. 20-360

================================================================================================================

In The

Supreme Court of the United States

---------------------------------♦--------------------------------DAVID SHINN, et al.,

Petitioners,

v.

SHAWN JENSEN, et al.,

Respondents.

---------------------------------♦--------------------------------On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

---------------------------------♦--------------------------------REPLY BRIEF FOR PETITIONERS

---------------------------------♦--------------------------------NICHOLAS D. ACEDO

Counsel of Record

DANIEL P. STRUCK

STRUCK LOVE BOJANOWSKI &

ACEDO, PLC

3100 W. Ray Road, Suite 300

Chandler, Arizona 85226

(480) 420-1600

nacedo@strucklove.com

Counsel for Petitioners

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

REPLY BRIEF .....................................................

1

ARGUMENT ........................................................

3

I.

The Petition Raises an Issue That Is Ripe

for This Court’s Consideration ..................

3

The PLRA Governs This Issue, Not the

Stipulation .................................................

5

Respondents Ignore the Text and Purpose of

the PLRA and the Cases That Recognize Its

Restrictions on the Lodestar Formula ........

9

IV. Respondents Have No Answer to Murphy ...

12

II.

III.

CONCLUSION..................................................... 13

ii

TABLE OF AUTHORITIES

Page

CASES

Alyeska Pipeline Serv. Co. v. Wilderness Soc’y,

421 U.S. 240 (1975) ...................................................8

Ashker v. Cate, 2018 WL 3108924 (N.D. Cal.

June 25, 2018) ...........................................................7

Boivin v. Black, 225 F.3d 36 (1st Cir. 2000) ...............11

City of Burlington v. Dague, 505 U.S. 557 (1992) ........8

Ginest v. Bd. of Cty. Comm’rs of Carbon Cty., 423

F. Supp. 2d 1237 (D. Wyo. 2006) ...............................8

Hartford Underwriters Ins. Co. v. Union Planters

Bank, N.A., 530 U.S. 1 (2000) ..................................10

Johnson v. Breeden, 280 F.3d 1308 (11th Cir.

2002) ........................................................................11

Kelly v. Wengler, 7 F. Supp. 3d 1069 (D. Idaho

2014) ..........................................................................8

Kelly v. Wengler, 822 F.3d 1085 (9th Cir.

2016) ............................................................ 2, 4, 5, 6

Kerr v. Screen Guild Extras, Inc., 526 F.2d 67

(9th Cir. 1975)............................................................2

Martin v. Hadix, 527 U.S. 343 (1999) ..................... 2, 12

Murphy v. Smith, 138 S. Ct. 784 (2018) ................... 2, 8

Nw. Airlines, Inc. v. Transp. Workers Union of

Am., AFL-CIO, 451 U.S. 77 (1981) ............................4

Octane Fitness, LLC v. ICON Health & Fitness,

Inc., 572 U.S. 545 (2014)............................................9

iii

TABLE OF AUTHORITIES—Continued

Page

Pennsylvania v. Del. Valley Citizens’ Council for

Clean Air, 478 U.S. 546 (1986) ..................................8

Pottinger v. City of Miami, 805 F.3d 1293 (11th

Cir. 2015) ...................................................................7

Raleigh & G.R. Co. v. Reid, 80 U.S. 269 (1871) ..........10

Rodriguez v. Sec’y of Health & Human Servs., 91

Fed. Cl. 453 (2010), aff ’d, 632 F.3d 1381 (Fed.

Cir. 2011) ........................................................... 10, 11

Shepherd v. Goord, 662 F.3d 603 (2d Cir. 2011) .........11

Skinner v. Uphoff, 324 F. Supp. 2d 1278 (D. Wyo.

2004) ..........................................................................8

Walker v. Bain, 257 F.3d 660 (6th Cir. 2001) .............11

Webb v. Ada Cty., 285 F.3d 829 (9th Cir. 2002) ..........11

STATUTES

42 U.S.C. § 1988 .................................................... 5, 7, 9

42 U.S.C. § 1997e(d) .............................................. 6, 7, 9

42 U.S.C. § 1997e(d)(1)..................................................9

42 U.S.C. § 1997e(d)(3).................................. 7, 9, 10, 12

1

REPLY BRIEF

The Brief in Opposition goes to great lengths to

avoid confronting the significant errors underlying the

Ninth Circuit’s decision. None of the procedural roadblocks that Respondents lay to avoid addressing the

purely legal issue presented in this Petition is an obstacle to this Court’s review.

Respondents first insist there is nothing to review

because the Ninth Circuit vacated the attorneys’ fees

order and remanded to determine whether a fee enhancement was justified under the circumstances. But

the legal issue presented in this Petition—whether the

Prison Litigation Reform Act (“PLRA”) precludes fee

enhancements—was adversely decided against Petitioners and that will not change on remand. The Ninth

Circuit’s holding is final and binding in this case, as

well as precedent for every prisoner-litigation defendant in its jurisdiction. Moreover, the holding tacitly affirms a second enhanced fee order against Petitioners

already entered in this case. This purely legal issue is

sufficiently ripe for review.

Attempting to minimize the issue, Respondents

also contend that it does not concern the PLRA at all,

but rather turns on an interpretation of the Stipulation. Neither the district court nor the Ninth Circuit,

however, agreed with that premise; instead, they concluded as a matter of law that the PLRA authorizes fee

enhancements. Petitioners challenge that interpretation of the PLRA in the Petition. Respondents’ contention that the Stipulation incorporated only the PLRA’s

2

hourly rate is belied not only by the text and context of

the Stipulation but also by the Ninth Circuit’s express

recognition that the Stipulation incorporated all the

PLRA’s attorneys’ fees provisions.

Only after painting an inaccurate picture of the

lower-court proceedings to try and justify a fee enhancement do Respondents turn to the merits.1 But

once there, they simply repeat the Ninth Circuit’s holdings in Kelly v. Wengler, 822 F.3d 1085 (9th Cir. 2016),

and in this case. Respondents do not square them with

the PLRA’s text or purpose. They ignore the import of

Martin v. Hadix, 527 U.S. 343 (1999), and the many

circuit court decisions recognizing that the PLRA, not

the lodestar method, controls in prisoner cases. And

they hardly address Murphy v. Smith, 138 S. Ct. 784

(2018). Apparently acknowledging that the Ninth Circuit’s decisions are indefensible, Respondents resort to

arguing that the Court should not yet intervene because only the Ninth Circuit has reached this bad result, while at the same time urging—mercifully—that

fee enhancements should be permitted, notwithstanding the plain and unambiguous text of the PLRA.

These are even more reasons this Court should

1

Whether Respondents should receive a fee enhancement

under the factors in Kerr v. Screen Guild Extras, Inc., 526 F.2d

67, 70 (9th Cir. 1975), is immaterial to the predicate, threshold

question at issue in this Petition—whether the PLRA authorizes

fee enhancements. Nonetheless, even the Ninth Circuit held that

the district court abused its discretion in concluding that an enhancement was warranted. App. 41.

3

intervene, vacate the Ninth Circuit’s attempt at judicial legislation, and harmonize its PLRA jurisprudence.

---------------------------------♦---------------------------------

ARGUMENT

I.

The Petition Raises an Issue That Is Ripe

for This Court’s Consideration.

Respondents contend that the enhancement issue

is premature because the Ninth Circuit ultimately vacated the fee award and remanded to the district court

to determine whether a multiplier is appropriate after

considering the proper enhancement factors. App. 41.

Thus, they argue, “there is no enhancement to review.”

Opp. at 10. But regardless of whether the district court

finds that a fee enhancement is appropriate on remand, the Ninth Circuit’s decision—holding that the

PLRA authorizes fee enhancements in prisoner

cases—remains intact. It is the law of this case and

binding precedent in the Ninth Circuit. It also sets erroneous precedent for other circuit courts to follow. Reviewing that issue now is not merely advisory—it is

necessary.2

In fact, the district court has issued a second attorneys’ fees award and ordered a 2.0 multiplier worth

2

Prisoner class action litigation is now becoming an attractive and lucrative undertaking for big law firms in Arizona. See,

e.g., Satzman v. Shinn, 20-cv-02402-SPL-JFM (D. Ariz.); Fenty v.

Penzone, 20-cv-01192-SPL-JZB (D. Ariz.).

4

nearly $800,000, relying on Kelly. Dkt. 3245. If this

Court does not grant review of the Petition and reverse

the Ninth Circuit’s decision in this appeal (and Kelly),

that multiplied fee award will stand. Indeed, Respondents agreed to stay the appeal from that award pending resolution of this Petition. See Jensen v. Ryan, 1916128 (9th Cir.), Doc. 27, 28. They have also refused to

request the district court to act in accordance with the

Ninth Circuit’s mandate, an acknowledgment that the

district court need not act if this Court holds that there

is no legal basis to consider a fee enhancement.

In addition, Respondents ignore the fact that this

case is in post-judgment enforcement litigation subject

to future fee applications and enhancement requests.

See, e.g., Dkt. 3753. The Ninth Circuit’s mandate has

sealed the threat of fee enhancements, which directly

impacts Petitioners’ ongoing defense of this case. Thus,

this purely legal issue is real—not abstract—and ripe

for this Court’s review now.3 See Nw. Airlines, Inc. v.

Transp. Workers Union of Am., AFL-CIO, 451 U.S. 77,

86 & n.15 (1981) (“basic legal questions” concerning

statutory interpretation are ripe for review).

3

Respondents’ assertion that “Petitioners prevailed in their

appeal of Respondent’s [sic] enhancement,” Opp. at 11, is belied

by their request for fees in that appeal. See Parsons v. Ryan, 1816358 (9th Cir.), Doc. 80-1 (“Plaintiffs Are Entitled To Attorneys’

Fees For The Attorneys’ Fees Appeal Because They Are The Prevailing Party.”).

5

II.

The PLRA Governs This Issue, Not the

Stipulation.

1. Respondents next argue that this case is a

poor vehicle to consider the enhancement issue because “the availability of an enhancement in this case

is governed by the Stipulation, and not by the PLRA

itself.” Opp. at 11. Thus, they argue, resolving the issue

will only “affect the interpretation of a single settlement agreement applicable only to one case.” Id. at 2–

3. But neither the district court nor the Ninth Circuit

agreed with Respondents’ interpretation of the Stipulation. The district court ruled that a fee enhancement

was available because Kelly says so:

The Stipulation contains no mention of an enhancement or multiplier and the Court understands that silence to mean that it is free to

evaluate the propriety of such an enhancement. See, e.g., Kelly v. Wengler, 822 F.3d 1085,

1100 (9th Cir. 2016) (noting absence of limitation means multiplier is acceptable).

App. 59. Kelly involved a fee award pursuant to 42

U.S.C. § 1988, not a settlement agreement. 822 F.3d at

1099. And the passage in Kelly that the district court

relied on confirms it considered a multiplier because

Kelly held that the PLRA authorizes them:

As explained above, the lodestar method is a

two-step process. A court first determines the

lodestar figure by multiplying the hours reasonably expended by a reasonable hourly rate;

it then determines whether to adjust that figure upward or downward. There is nothing in

6

the attorney’s fees provisions of the PLRA that

instructs a court not to take both steps in this

process.

822 F.3d at 1100 (emphasis added; internal citations

omitted).

More importantly, the Ninth Circuit in this case

expressly held that the Stipulation incorporated 42

U.S.C. § 1997e(d), not just the PLRA’s hourly rate cap,

and further held, citing Kelly, that the PLRA authorizes a multiplier:

The Stipulation explicitly incorporates the

PLRA’s rules for determining “reasonable attorneys’ fees and costs,” because it provides

that the hourly rate is “governed by 42 U.S.C.

§ 1997e(d)”—which codifies the PLRA. The

PLRA, in turn, authorizes multipliers to the

base hourly rate above the cap set by 42 U.S.C.

§ 1997e(d)(1). See Kelly v. Wengler, 822 F.3d

1085, 1100 (9th Cir. 2016).

App. 40. Petitioners seek review of the lower courts’ legal interpretation of the statute, which applies to every

prisoner case.

Respondents’ contention that the Stipulation authorizes a fee enhancement is unsupportable. As they

concede, the Stipulation is “silent” on whether a fee enhancement is permitted, Opp. at 7, and neither fee provision mentions, much less incorporates, § 1988 or the

lodestar framework. App. 82, ¶¶ 42–43. To the contrary, it restricts the court’s discretion by incorporating

§ 1997e(d), App. 82, ¶ 42, which, in turn, expressly

7

denies any fees under § 1988 “except to the extent” prescribed by § 1997e(d). See 42 U.S.C. § 1997e(d)(1); see

also 42 U.S.C. § 1997e(d)(3) (“No award of attorney’s

fees in an action described in paragraph (1) shall be

based on. . . .”). And, as discussed in the Petition, even

if the Stipulation incorporated only the PLRA’s hourly

rate cap in § 1997e(d)(3), a fee enhancement effectively

allows an increase beyond that cap. Pet. at 13–14. Respondents cannot read into the Stipulation something

that is not expressly included and otherwise prohibited

by statute. See Pottinger v. City of Miami, 805 F.3d

1293, 1300 (11th Cir. 2015) (the “bargained-for paragraphs” of a settlement agreement, including provisions authorizing attorneys’ fees, control over § 1988);

Ashker v. Cate, 2018 WL 3108924, at *21 (N.D. Cal.

June 25, 2018) (fee enhancement was not available

where the settlement agreement did “not expressly

provide for” one and included a provision setting fees

“at the hourly rate set forth under . . . § 1997e(d)”).

2. Because the PLRA, not the Stipulation, governs this issue, Respondents’ attempt to glean the parties’ intent and extrapolate from it an interpretation of

the Stipulation’s terms is unavailing. Similarly, the

“background case law” at the time the parties entered

the Stipulation is irrelevant. Opp. at 13–14. Nevertheless, the law in the Ninth Circuit at the time did not

“clearly” provide that “enhancements were available

under the PLRA.” Id. at 14. The only case that did was

the district court’s non-binding and non-final decision

in Kelly, which issued just several months before the

parties signed the Stipulation (while an appeal from

8

the decision was pending). See Kelly v. Wengler, 7

F. Supp. 3d 1069, 1083 (D. Idaho 2014). The Ninth Circuit did not issue its binding decision in Kelly until more

than a year and a half after the Stipulation was signed.4

Since Kelly was the first—and only—circuit court to allow a multiplier in a prisoner case, the parties clearly

did not contemplate that the Stipulation authorized

them. The purpose of incorporating the PLRA was to

make clear that fee enhancements were not available.

Respondents also cite cases that have recognized

the availability of fee enhancements under the attorneys’ fees provisions in the Solid Waste Disposal Act

and Clean Air Act. See City of Burlington v. Dague, 505

U.S. 557, 559 (1992); Pennsylvania v. Del. Valley Citizens’ Council for Clean Air, 478 U.S. 546, 548 (1986).

But whereas those fee-shifting statutes authorize a

“reasonable” fee award to a prevailing party, just as

§ 1988 does—and therefore incorporates the lodestar

method—the PLRA expressly limits “the usual operation of § 1988(b) in prisoner cases,” Murphy, 138 S. Ct.

at 789, and supplants the lodestar calculation, 42

U.S.C. § 1997e(d). See Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 260 (1975) (Congress must

make “specific and explicit provisions for the allowance

of attorneys’ fees under selected statutes granting or

4

Respondents also cite the two district court decisions,

Ginest v. Bd. of Cty. Comm’rs of Carbon Cty., 423 F. Supp. 2d

1237, 1241 (D. Wyo. 2006), and Skinner v. Uphoff, 324 F. Supp. 2d

1278, 1287–88 (D. Wyo. 2004), which the Kelly district court relied

on. Opp. at 14. But those decisions were issued by the District of

Wyoming and are not binding in the District of Arizona.

9

protecting various federal rights”). By incorporating

§ 1997e(d) into the Stipulation, the parties rejected the

lodestar method and its enhancement feature.

III. Respondents Ignore the Text and Purpose

of the PLRA and the Cases That Recognize

Its Restrictions on the Lodestar Formula.

1. Respondents contend that a “[s]tatutory analysis ‘begins and ends with the text’ of the statute,” Opp.

at 20 (quoting Octane Fitness, LLC v. ICON Health &

Fitness, Inc., 572 U.S. 545, 553 (2014)), but they gloss

over the PLRA’s text and do exactly what they accuse

Petitioners of doing: superimpose words into the statute. Although they acknowledge that the PLRA supplanted the lodestar formula’s hours and rate

components, 42 U.S.C. §§ 1997e(d)(1), (d)(3), they assert that Congress “did not even address, much less

modify, the second step of the lodestar analysis regarding upward” enhancements. Opp. at 19. But Congress

could not have been clearer: “In any action brought by

a prisoner . . . in which attorney’s fees are authorized

under section 1988, such fees shall not be awarded, except to the extent” allowed by § 1997e(d). 42 U.S.C.

§ 1997e(d)(1) (emphasis added). Astonishingly, this

statutory directive is not cited anywhere in Respondents’ Brief in Opposition. Yet, they urge the Court to

believe that Congress implicitly preserved the lodestar’s fee enhancement, despite expressly qualifying

§ 1988 and prescribing a new formula.

10

By reading an implied enhancement feature into

§ 1997e(d) from the absence of restrictive language,

Respondents distort the negative implication rule, expressio unius est exclusio alterius. As this Court explained, such reasoning defies common sense and

common usage. See Hartford Underwriters Ins. Co. v.

Union Planters Bank, N.A., 530 U.S. 1, 8 (2000) (“Petitioner argues that in the absence of such restrictive

language, no party in interest is excluded. This theory—that the expression of one thing indicates the inclusion of others unless exclusion is made explicit—is

contrary to common sense and common usage.”). Respondents’ interpretation of the statute also substitutes the particular method Congress provided for

calculating attorneys’ fees with one that it did not. See

Raleigh & G.R. Co. v. Reid, 80 U.S. 269, 270 (1871)

(“When a statute limits a thing to be done in a particular mode, it includes a negative of any other mode.”).

Respondents also attempt to diminish the fact that

a fee enhancement effectively negates § 1997e(d)(3)’s

hourly rate cap (“No award of attorney’s fees in an action described in paragraph (1) shall be based on. . . .”).

In fact, they advocate that they should be permitted to

exceed the rate cap in prisoner cases because, for example, attorneys utilizing the Laffey Matrix in nonprisoner cases may seek an enhancement if the circumstances warrant. Opp. at 20. That bold contention

proves Petitioners’ point and highlights the fundamental flaw in the Ninth Circuit’s decisions. Aside from

the fact that, unlike the PLRA, the Laffey Matrix is not

a statutory mandate, Rodriguez v. Sec’y of Health &

11

Human Servs., 91 Fed. Cl. 453, 468–69 (2010), aff ’d,

632 F.3d 1381 (Fed. Cir. 2011), Congress placed restrictions on fee awards in prisoner cases to reduce

prisoner litigation and disincentivize lawyers from

pursuing frivolous cases. Pet. at 15–16. Construing

§ 1997e(d)(3) to allow an enhancement of the total fee

award (but not the hourly rate) is nonsensical and frustrates Congress’s intent.

2. Respondents contend that the issue is not

worthy of review because the Ninth Circuit is “the only

court of appeals to have assessed whether enhancements are available under the PLRA,” and they attempt to distinguish the many circuit court decisions

cited in the Petition. Opp. at 15–17. Respondents ignore, however, the import of those decisions—each one

recognized that the PLRA is the standard for awarding

attorneys’ fees in prisoner cases, not the lodestar

method. See Shepherd v. Goord, 662 F.3d 603, 606 (2d

Cir. 2011); Webb v. Ada Cty., 285 F.3d 829, 840 n.6 (9th

Cir. 2002); Johnson v. Breeden, 280 F.3d 1308, 1327

(11th Cir. 2002); Walker v. Bain, 257 F.3d 660, 665 (6th

Cir. 2001); Boivin v. Black, 225 F.3d 36, 39 (1st Cir.

2000). Respondents’ contention that none of them “rejected the lodestar method,” Opp. at 17, is belied by the

passages quoted in the Petition (at 10–11). The Ninth

Circuit’s decisions in this case and in Kelly—which applied the lodestar method’s fee-enhancement feature to

circumvent the PLRA’s fee restrictions—conflicts with

those cases.

12

3. Respondents similarly attempt to distance

this Court’s decision in Martin, contending it addressed only whether the PLRA’s fee provisions apply

retroactively and did not suggest that it caps a total

fee award. Opp. at 22–23. Once again, the decision

speaks for itself. The Court held that § 1997e(d)(3)

“sets substantive limits on the award of attorney’s fees”

and “places a cap on the size of attorney’s fees that may

be awarded in prison litigation suits.” Martin, 527 U.S.

at 350, 354; see also id. at 352 (adding that circuit

courts have held that the PLRA “caps all fees that are

ordered to be paid after the enactment of the PLRA”).

Kelly and the Ninth Circuit’s decision in this case effectively lifts the “cap” and removes the “substantive

limits” that § 1997e(d)(3) imposes by allowing a fee enhancement of the total fee award. In that respect, they

directly conflict with Martin.

IV. Respondents Have No Answer to Murphy.

Respondents address Murphy in a few paragraphs, but their argument is simply that the Court

did not address the availability of enhancements under the PLRA. Opp. at 21–22. But Respondents ignore

Murphy’s overarching analysis of the interplay between § 1988 and the PLRA, and its conclusion that

the PLRA “limit[s] the district court’s pre-existing discretion under § 1988(b).” 138 S. Ct. at 789. Those limits

are meaningless under Kelly and the Ninth Circuit’s

decision in this case if a district court can disguise a

rate multiplier as an enhancement of the total fee

award. Authorizing that end-run around the PLRA

13

and restoring a district court’s pre-PLRA discretion

conflicts with Murphy’s reasoning.

---------------------------------♦---------------------------------

CONCLUSION

The petition for writ of certiorari should be

granted.

Respectfully submitted,

NICHOLAS D. ACEDO

Counsel of Record

DANIEL P. STRUCK

STRUCK LOVE BOJANOWSKI &

ACEDO, PLC

3100 W. Ray Road, Suite 300

Chandler, Arizona 85226

(480) 420-1600

nacedo@strucklove.com

Counsel for Petitioners