Amicus Curiae Brief — Martin v. Hadix

FITTED

| DEC 81 1998

No. 98-262 GRICE Ob THE OLERM

In The a

SUPREME COURT OF THE UNITED STATES

October Term, 1998

PERRY JOHNSON, et ai.,

Petitioners

v.

EVERITT HADDIX, et ai.,

Respondents

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF FOR AMICI STATES OF OHIO, ALASKA,

ALABAMA, ARIZONA, CALIFORNIA, DELAWARE,

DISTRICT OF COLUMBIA, FLORIDA, GEORGIA,

HAWAII, IDAHO, ILLINOIS, INDIANA, IOWA, KANSAS,

LOUISIANA, MARYLAND, MINNESOTA, MISSISSIPPI,

MONTANA, NEBRASKA, NEVADA, NEW JERSEY, NEW

YORK, NORTH CAROLINA, OKLAHOMA, OREGON,

RHODE ISLAND, SOUTH CAROLINA, SOUTH DAKOTA,

TENNESSEE, UTAH, VERMONT, WASHINGTON AND

WEST VIRGINIA, THE COMMONWEALTHS OF

MASSACHUSETTS, PENNSYLVANIA AND VIRGINIA

AND THE TERRITORY OF GUAM IN SUPPORT OF

PETITIONERS

BETTY D. MONTGOMERY

Attorney General

STUART W. HARRIS

Counsel of Record

TODD R. MARTI

Assistant Attorneys General

Corrections Litigation Section

140 E. Town Street, 14" Floor

Columbus, Ohio 43215-6001

(614) 644-7233

Counsel for Amici States

BILL PRYOR

Attorney General

State of Alabama

BRUCE M. BOTELHO

Attorney General

State of Alaska

GRANT WOODS

Attomey General

State of Anzona

DANEII. E. LUNGREN

Attorney General

State of California

M. JANE BRADY

Attorney General

State of Delaware

L.A. PRAGER

Corporation Counsel

District of Columbia

ROBERT A. BUTTERWORTH

Attorney General

State of Florida

THURBERT E. BAKER

Attorney General

State of Georgia

ROBERT H. KONO

Attorney General

Territory of Guam

MARGERY S. BRONSTER

Attorney General

State of Hawan

ALAN G. LANCE

Attorney General

State of Idaho

JIM RYAN

Attorney General

State of Illinois

JEFFREY A. MODISETT

Attomey General

State of Indiana

TOM MILLER

Attorney General

State of lowa

CARLA J. STOVALL

Attorney General

State of Kansas

RICHARD P. IEYOUB

Attorney General

State of Louisiana

J. JOSEPH CURRAN, JR.

Attorney General

State of Maryland

SCOTT HARSHBARGER

Attorney General

Commonwealth of Massachusetts

HUBERT H. HUMPRHEY III

Attorney General

State of Minnesota

MIKE MOORE

Attorney General

State of Mississippi

JOSEPH P. MAZUREK

Attorney General

State of Montana

DON STENBERG

Attorney General

State of Nebraska

FRANKIE SUE DEL PAPA

Attorney General

State of Nevada

PETER VERNIERO

Attorney General

State of New Jersey

OTe. ew

DENNIS C. VACCO

Attorney General

State of New York

MICHAEL F._ EASLEY

Attorney General

State of North Carolina

W.A. DREW EDMONDSON

Attorney General

State of Oklahoma

HARDY MYERS

Attorney General

State of Oregon

D. MICHAEL FISHER

Attorney General

Commonwealth of Pennsylvania

JEFFREY B. PINE

Attorney General

State of Rhode Island

CHARLES M. CONDON

Attorney General

State of South Carolina

MARK BARNETT

Attorney General

State of South Dakota

JOHN KNOX WALKUP

Attorney General

State of Tennessee

JAN GRAHAM

Attorney General

State of Utah

WILLIAM H. SORRELL

Attorney General

State of Vermont

MARK L. EARLEY

Attorney General

Commonwealth of Virgima

CHRISTINE O. GREGOIRE

Attorney General

State of Washington

DARRELL V. McGRAW

Attomey General

State of West Virginia

QUESTIONS PRESENTED

Whether, in litigation pending on the effective date of

the Prison Litigation Reform Act (“PLRA”), the

attorney fee provision of PLRA Sec. 803(d), 42

U.S.C. 1997e(d) applies to fees awarded after the

Act’s effective date for services rendered after that

date?

Whether, in such litigation, this fee provision applies

to fees awarded after the Act’s effective date for

services rendered before that date?

TABLE OF CONTENTS

A. The Plain Language of § 1997e(d)

Requires That It Be Applied to All

Fee Requests Regardless of When the

Underlying Services Were Rendered. ............. 7

1. Congress’ Direction That §

1997e(d) Apply “In Any Case

Brought By a Prisoner”

Makes It Expressly

Applicable to All Post

2. Neither the History nor the

Any Other Result .........................000.. 9

B. Applying § 1997e(d) To All Post

Enactment Fee Requests Would Not

Have An Improper Retroactive

l. Section 1997e(d) Does Not

Regulate Primary Conduct................ 12

ii

2. Parties Do Not Have

“Rights” That Can Be

“Impaired” by § 1997e(d)................. 14

Cc. Application of § 1997e(d) to Fees for

Post Enactment Services is Required

Without Regard to Landgraf........................ 16

FR IE SAL ER Oe Oe 18

iil

TABLE OF AUTHORITIES

PAGE

FEDERAL CASES

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

RELI Rial a 12,15

Bradley v. Richmond Sch. Bd.,

I a 13

Ex parte Collette,

RET TE SA a Ae ct passim

Connecticut Nat'l Bank v. Germain,

a 9

County of Chicot v. Lewis,

RRS SST eer as 7

Dobbert v. Florida,

I ii cei nch cen tieeclnideshbncieestnabes 6,17

Farrar v. Hobby,

ERIS 9a ae oe 15

Field v. Manns,

RE IIL AEs? ae 9

Hanrahan v. Hampton,

ERIN AS TA eA eK: 15

Hensley v. Eckerhart,

SE Rd SS Sa SE 15

Hewitt v. Helms,

ELIE rae er eer 15

Hines v. Anderson, .

439 F. Supp. 12 (D. Minn. 1977).......000..00. 2

Hutto v. Finney,

Ce i scased 4.8

Kaiser Aluminum & Chemical Corp. v. Bonjorno,

REE NY TE a ee 8

Kentucky v. Graham,

ITE ctitcinss clgnitnpteliphtkosbhentibentiincoapihves 15

iv

Landgraf v. USI kilm Products,

oo. «va ccbaeevoscctagibuisaaneiinel passim

Lewis v. Casey,

I I 10 5 seulncdioupennnsabendaieibeceneibas 13

Lindh v. Murphy,

ee eee Pt eee passim

Madrid v. Gomez,

DSTO PEO Gi, HOGI vice evicceseviserssceveseersssnas 11

McBurney v. Carson,

ER SR ae rR 6,16

N.A.A.C.P. v. New York,

OE ee OED sci ceccsccnssesctcesses: Sysndeebineadiias 8

Pierce v. Underwood,

I ie 17

Preiser v. Rodriguez,

ETERS SORES ET RACERS AI Ure 13

Rhodes v. Stewart,

I A 15

Sprague v. lTiconic Nat'l Bank,

I i rae 12

Sturges v. Crowinshield,

SAGES ORE OTT ON 9

Trustees v. Greenough,

I i a 12

United States v. Rosenwasser,

I hale 7

United States v. Schooner Peggy,

I a 11

United States v. Wilson,

I I a 4.8

White v. New Hampshire Dept. of Employment Security,

es SID i sn csipaitiabeuiestneres sdidehabididiniycdags 13

Wolff v. McDonnell,

ST INS ic inicidbciiincpeesnaciemniabcshabiidaiens 13

Vv

DOCKETED CASES

Campbell v. McGruder,

Case No. 1462-71 (D.D.C. 1971) 000. 2

FEDERAL STATUTES &

LEGISLATIVE MATERIALS

SESE a ET Oe es 3

EEN ESOL EAT POT 10

aE a RO ell NT A 9

REET EE IEA SEED SPI 10

Nn ciss cuss cnencsoovnnibiliod 6,15,16

SE A RR OR a Rca Rt Oy 4

a csiichcsiall passim

Prison Litigation Reform Act, P.L. 104-134,

Ne cies passim

141 Cong. Rec. H1042 (daily ed. Feb. 1, 1995)

Nee is ssscssecesecdenncconies 3

141 Cong. Rec. H1480 (daily ed. Feb. 9, 1995)

(statement of Rep. Canady) .........0..000...00000000000000000. 3

141 Cong. Rec. $14317 (daily ed. Sept. 29, 1995)

(statement of Sen. Abraham) .......0.000..00.0000.oooo. 3

OTHER

Black's Law Dictionary,

REESE 8

Criminal Justice Institute, Inc,

The Corrections Yearbook 1997, (1997) ..0000000000........ l

G. Cole, R. Hanson, and J. Gilbert,

Alternative Dispute Resolution Mechanisms

for Prisoner Grievances: A Reference Manual

for Averting Litigation,

(National Institute of Corrections, 1984)...00.0000.0000........ 2

vi

J. Dunne,

U/nconscionable Limits on Prisoner Lawsuits,

The Washington Post, Nov. 8, 1995, at Al7............ 17

K. Victor and P. Stone,

From the K Street Corridor, The National

ee ek TE UU io ks iindicgdooanensunnciectontedee 17

STATEMENT OF AMICI INTEREST

The 39 Amici States support Michigan’s efforts to

obtain the full measure of relief afforded by 42 U.S.C.

§1997e(d). That statute is a reasonably crafted compromise

between the legitimate need to obtain legal representation for

prisoners and the states’ equally legitimate need to limit the

cost and disruption that resulted from excessive fee awards

under prior law. The Amici appear because the decisions

below “prolorg the life of ... a judicial construction of civil

rights statutes that Congress” quite properly “found wanting”.

Landgraf v. USI Film Products, 51\ U.S. 244, 259 (1994).

The most obvious result of unduly continuing prior

law is the continuing diversion of resources to pay excessive

awards. For example, the states of Michigan and California

have paid more than $11,490,000 to prisoners’ attorneys since

April of 1996. While that amount is significant in its own

right, its real impact becomes apparent when one considers

how those funds could have been more productively used.

That sum could have purchased one year of health care for

4,776 inmates or a year of supervision of 6,759 parolees.

Criminal Justice Institute, Inc. 7he Corrections Yearbook

1997, 74, 160 ( 1997).'

An even more important result is the disruption caused

to the day to day operation of correctional facilities.

Litigation has very real, and very adverse, effects. At a

minimum, it diverts staff from operational tasks to such

matters as discovery, trial preparation and actual in court

testimony. More importantly, it can undermine discipline and

order:

' The figure in the text was calculated by dividing the total paid by the

average national daily cost for the services in question and dividing the

resulting figure by 365.

2

Even if correctional officials are able to “win”

the suits against them, leadership may be hurt

when wardens are placed on trial. In the

adversarial process, plaintiff and defendant--

prisoner and warden--are legally and

symbolically equal, a fact that does not go

unnoticed by those whom the warden must

supervise.

**#*

An institution whose _ prisoners have

successfully sued administrators may find its

staff fearful of becoming defendants in another

lawsuit and thus reluctant to exercise

discretion to solve festering and potentially

serious problems. The emotional costs of

litigation for staff and inmates may increase

tensions, with ensuing management and

security problems.

G. Cole, R.Hanson, and J. Gilbert, Alternative

Dispute Resolution Mechanisms for Prisoner Grievances: A

Reference Manual for Averting Litigation, (National Institute

of Corrections, U.S. Dept of Justice 1984) 6, 8 (footnotes

omitted). Unfortunately, excessive fee awards under prior

law provided incentives to unduly broaden and prolong

prisoner cases, aggravating those problems.

Indeed, once a lawsuit interjects counsel into a prison

they stay involved for inordinately long periods of time. For

example, institutional reform litigation often develops a life of

its own, as evidenced by the fact that some States are

burdened by decrees entered more than a generation ago. See

Campbell v. McGruder, Case No. 1462-71 (D.D.C. 1971)

(decree pending for twenty-seven years), Hines v. Anderson,

439 F Supp. 12 (D.Minn 1977) (decree pending for twenty-

one years). Indeed, the cases at bar are well into their second

decade.

3

Congress was aware of those problems and passed the

Prison Litigation Reform Act, P.L. 104-134, 110 Stat. 321

(“PLRA”), to help States deal with them. It specifically

sought to address the problems caused by excessive fee

awards by including the provisions now codified in 1997e(d).

141 Cong. Rec. H1042 (daily ed. Feb. 1, 1995) (statement of

Rep. Hoke), 141 Cong. Rec. H1480 (daily ed. Feb. 9, 1995)

(Statement of Rep. Canady); 141 Cong. Rec. $14317 (daily

ed. Sept. 29, 1995) (statement of Sen. Abraham) That statute

addresses the problems described above by, inter alia,

eliminating awards for services not necessary to vindicate

federal rights and precluding disproportionate awards, thus

eliminating financial incentives to improperly expand prison

cases. Nonetheless, it still allows reasonable compensation

for counsel who vindicate federal rights, authorizing such

counsel to recover 150% of the hourly rate allowed under the

Criminal Justice Act, 18 U.S.C. 3006A.

Unfortunately, the lower courts have been reluctant to

give effect to that fair compromise. The States bear the costs.

Consequently, the 39 Amici States strongly support

Michigan’s efforts to have § 1997e(d) applied according to its

plain terms.

SUMMARY OF ARGUMENT

Landgraf v. USI Film Products, 511 U.S. 244 (1994),

provides a two-step analysis for determining whether a statute

applies to matters predating its enactment. Under that

analysis “the court’s first task is to determine whether

Congress has expressly prescribed the statute’s proper reach.

If Congress has done so, there is no need” for further judicial

analysis. /d. at 280. The second step, taken only if Congress

has not set the temporal reach of a staiute, is to determine

whether applying the new law would have an improper

retroactive effect. If so, the statute will not apply.

EE

4

Both steps compel application of 42 USC. §

1997e(d) to all post-enactment fee awards, regardless of

when the underlying services were rendered. In addition,

other precedent independently requires that fee requests for

services rendered after § 1997e(d)’s enactment be controlled

by that statute.

The plain language of § 1997e(d) clearly expresses

Congress’ intent that the statute apply to all post enactment

fee requests, regardless of their chronology. It applies to

requests made “in any action” concerning prisoners’ rights

and this Court has consistently held that such language “could

not be broader,” “does not hint of an exception,” Hutto v.

Finney, 437 U.S. 678, 694 (1978), and is an “unambiguous,

direct, clear” direction that it should be applied “without

qualification.” x parte Collette, 337 U.S. 55, 58 (1949).

Section 1997e(d) further provides that it should apply in all

such cases whenever “brought,” a backward looking verb that

encompasses cases pending when the statute was enacted.

Such “use of a verb tense is significant” and indicates that §

1997e(d) controls cases “brought” before enactment. United

States v. Wilson, 503 U.S. 329, 333 (1992).

That is not overcome by the Sixth Circuit’s negative

inference based upon the fact that the matters eventually

codified in § 1997e(a) were transferred from a section of the

PLRA made expressly applicable to pending cases to another

section not accompanied by such provisions. There are two

reasons for that.

First, and of paramount importance, § 1997e(d)

expressly provides that it is to be applied in “any action

brought” by a prisoner, an “unambiguous directive” that the

statute applies “without hint that some [cases] should be

included.” Ex parte Collette, 337 U.S. at 58. Therefore, it is

highly improper to infer that any matters so clearly within the

5

scope of § 1997e(d) should be exempted because of

something that was not in the statute. Indeed, the precedent

the Sixth Circuit relied upon in drawing such an inference,

Lindh v. Murphy, __ US. __, 117 S.Ct. 2059 (1997),

recognized that the sort of language used in § 1997e(d) would

qualify as “clear statement of retroactive effect” which should

be given effect. /d. at 2064 n. 4 (citing the phrase “any civil

action” as an example of an express provision for retroactive

effect). That should have ended the matter.

Second, Congress had other reasons for changing the

location of the provisions now codified in § 1997e(d) within

the PLRA. Those reasons included the different nature of the

matters covered by the different portions of the Act and the

location of the matters now codified in § 1997e(d) within the

appropriate chapter of the United States Code. More

importantly, Congress likely assumed that there was no need

to make extrastatutory provision regarding the applicability of

§ 1997e(d) to pending cases because the text of the statute

itself expressed Congress’ intention to control such cases.

Such an explanation is further supported by the fact that the

PLRA was passed shortly after Landgraf which indicated that —

it would be “uniquely” appropriate to apply statutes

regulating attorneys’ fees to pending cases, even absent

express direction. 511 U.S. at 277.

In sum, § 1997e(d) contains the sort of unambiguous

directions that require application under Landgraf'’s first step.

Those clear expressions cannot be overcome by what is not in

the statute. Therefore, the first phase of the Landgraf

analysis should also have been the final phase.

However, Landgraf’s second phase also supports

application. Section 1997e(d) cannot be improperly

retroactive because it does not regulate the parties’ primary

conduct. That primary conduct occurs inside “jail[s],

prison{[s] or other correctional facilitfies}”, § 1997e(d)(1),

NT Ne WN nen EneNT mn nna EnTIT NNN OnN EON NEennT NST

6

and involves immediate, and often volatile, interactions

between prisoners and with prison staff. It was not driven by

the variables to be used in the fee calculations years later in a

distant courthouse. Hence, it is unlikely that plaintiffs in such

suits will be unfairly surprised by application of § 1997e(d).

Moreover, even if application of § 1997e(d) would

upset their subjective expectations, it does not improperly

“impair rights” for purposes of Landgraf. Section 1997e(d)

regulates fee awards. Parties have no common law “right” to

recover attorneys’ fees and only an uncertain expectation of

such a recovery under 42 U.S.C. § 1988 prior to receiving an

actual award. Hence, § 1997e(d) cannot “impair rights” in

such a manner as to have an improper retroactive effect under

Landgraf.

Finally, the Sixth Circuit erred in holding that

Landgraf precludes application of § 1997e(d) to requests for

fees for services rendered after the statute’s enactment. By its

very terms, Landgraf is limited to situations involving “a

federal statute enacted afier the events in suit.” /d. at 280

(emphasis added). Hence, application of § 1997e(d) fee

requests based on post-enactment services cannot be

precluded by Landgraf.

However, other precedent provides a rule of decision.

This Court has consistently upheld the application of new

Statutes to post enactment matters arising in pre-enactment

cases. Indeed, that approach has been followed in both civil

and criminal cases. Ex parte Collette, 337 US. at 71,

McBurney v. Carson, 99 U.S. 567, 569 (1878); Dobbhert v.

klorida, 432 U.S. 282, 292-293 (1977). There is no reason

to depart from that settled practice here.

:

ARGUMENT

A. The Plain Language of § 1997e(d) Requires

That It Be Applied to All Fee Requests

Regardless of When the Underlying

Services were Rendered

The most important part of any retroactivity analysis

“is to determine whether Congress has expressly prescribed

the statute’s proper reach.” Landgraf, 511 U.S. at 280. A

review of the relevant portions of § 1997e(d) reveals that

Congress provided the types of “unambiguous directives” and

“express commands” described in Landgraf and Lindh, 117

S.Ct. at 2062-2063, indicating that the statute applies to all

fee awards considered after its enactment, regardless of when

the underlying services were rendered.

1. Congress’ Direction That § 1997e(d)

Apply “In Any Case Brought By a

Prisoner” Makes It Expressly

Applicable to All Post Enactment

Fee Awards.

Section 1997e(d) clearly expressed Congress’ intent

to reach pending cases in two ways.

The first is the absolute and unqualified statement that

§ 1997e(d) applies “in any action brought by a prisoner,” a

broad statement without temporal limitation (emphasis

added). On a general level, the term “any” indicates that

Congress intended the statute to cover “all [cases], without

restriction,” County of Chicot v. Lewis, 103 U.S. 164, 167

(1881), requiring a “broader and more comprehensive

coverage” than applied below. United States v. Rosenwasser,

323 U.S. 360, 362-363 (1945). Of more particular interest,

the Court has recognized that the almost identical phrase “any

civil action” is an “unambiguous, direct, clear” indication that

8

a statute is intended to apply “without qualification, without

hint that some [cases] should be excluded,” -x parte Collett,

337 U.S. 55, 58 (1949). See also Hutto v. Finney, 437 U.S.

678, 694 (1978) (“The act itself could not be broader. It

applies to ‘any’ action brought to enforce certain civil rights

laws. It contains no hint of an exception...”); N.A.A.C.P. v.

New York, 413 U.S. 345, 355-356 (1973). Bringing the

matter to the sharpest possible focus, Lindh strongly suggests

that such a phrase would “qualify as a clear statement of

retroactive effect.” 117 S. Ct. at 2064 n.4 (highlighting the

phrase “any civil action” set forth in 28 U.S.C. § 1346(a)(1)).

That is reinforced by § 1997e(d)’s second “express

command,” the statement that it apply to all actions “brought”

by a prisoner. That term is used generally, and in § 1997e(d),

as the past tense of the word “bring” Black's Law

Dictionary, 194 (6" Ed. 1990) (“past tense of ‘bring’. See

bring suit, supra”). Congress’ choice of that backward-

looking verb to describe the statute’s coverage plainly

indicates that it intended § 1997e(d) to control awards in

cases that were “brought” before it was enacted. Indeed, that

indicator is particularly compelling because Congress phrased

other, more substantive portions of § 1997e(a) in prospective

terms. See §§ 1997e(a) (“No action shall be brought...”

until administrative remedies are exhausted) and 1997e(e)

(No action “may be brought” to recover certain types of

damages) (emphasis added). As this Court has noted,

“Congress’ use of a verb tense is significant in construing

statutes.” U/nited States v. Wilson, 503 U.S. 329, 333 (1992).

In this case, it clearly expressed Congress’ intent to control

pending cases.

In sum, the “unambiguous, direct, clear” directive that

§ 1997e(d) control “any case brought” makes “congressional

intent clear” and, hence, “it governs.” Kaiser Aluminum &

Chemical Corp. v. Bonjorno, 494 U.S. 827, 837 (1990).

9

2. Neither the History nor the

Structure of the PLRA Justify Any

Other Result.

The Court below relied upon Lindh and the facts that

Congress expressly made § 802 of the PLRA applicable to

pending cases and that § 1997e(d) was moved from that

section to PLRA § 803, which was not accompanied by such

provisions, to infer that Congress did not intend § 1997e(d) to

control pending cases. That analysis is flawed on two levels.

First, and most importantly, Congress has clearly

spoken on the temporal reach of § 1997e(d) and an

“implication based upon what is not in the statute is weakest

when it suggests results strangely at odds with other textual

indications.” /ield v. Manns, 516 U.S. 59, 75 (1995). As just

explained, Congress clearly mandated that the statute apply

“to any action brought by a prisoner.” Indeed, Lindh itself

cited the very similarly phrased language of 28 U.S.C. § 1346

(al) as an example of the type of language that would

clearly require retroactive application. 117 S. Ct. at 2064 n.4.

When Congress has plainly spoken the first, and last, act of

judicial construction is to apply the statute according to its

terms. No implication can be made as “it would be dangerous

in the extreme to infer that a case for which the words of [a

statute] expressly provides shall be exempted from its

operation.” Connecticut Nat'l Bank v. Germain, 503 US.

249, 254 (1992) (quoting Sturges v. Crowninshield, 4 Wheat

122, 202 (1819)).

Second, unlike the legislation construed in Lindh,

Congress had reasons for the way it structured the PLRA that

are unrelated to the temporal reach of § 1997e(d). There

were at least three such reasons.

a. Lindh based its negative inference on the fact that

the two parts of the act at issue were so closely related that it

10

was very likely that in choosing different language Congress

chose different results. Lindh, 117 S.Ct. at 2065. However,

when statutes are less closely related, such a negative

inference is less strong, especially when other textual pointers

suggest a different result. Fie/d, 516 U.S. at 75. Although the

provisions contained in PLRA §§ 802 and 803 have partially

overlapping purposes, they further them in completely

different manners and therefore lack the close relationship

underlying the Lindh implication.

PLRA § 802 amended 18 U.S.C. § 3626 to limit the

substantive relief available in prisoner cases, affecting the

immediate, primary conduct of the litigants behind prison

walls. In contrast, § 1997e(d) affects their procedural

interests long after the outcome of their primary dispute has

been resolved. Because of the disparate nature of those two

statutes, the close relationship underlying Lindh is absent and

a Lindh type inference is inapposite.

b. A second reason is the structure of the United

States Code. The general subject of civil rights and the

specific subtopics of attorneys’ fees and the rights of the

institutionalized are controlled by Title 42. See 42 U.S.C.

§§ 1981-1997}, inclusive. The PLRA’s amendments to those

Statutes were set forth in § 803 while § 802 dealt exclusively

with amendments to Title 18. Moving the provisions now

codified in § 1997e(d) to § 803 is not inextricably linked to a

desire to limit their temporal reach, but instead can be

explained by the fact that placement there in consistent with

the structure of the Code.

c. Finally, and most importantly, the plain language of

the provisions codified § 1997e(d) made it unnecessary to

include them in the section of the PLRA made expressly

applicable to pending cases. The unqualified mandate that

§ 1997e(d) control “any” case, whenever “brought,” clearly

made it applicable to pending cases. Given that language, it

1}

was perfectly logical for Congress to assume that the statute

would apply to pending cases, even if it was moved from

§ 802 to § 803.

Indeed, such an assumption is strengthened by the fact

that Congress drafted the PLRA in the shadow of Landgraf,

which held that it is “uniquely” appropriate for new attorney

fee statutes to apply in pending cases, even without an

express command. Landgraf, 511 U.S. at 277. Landgraf

also indicated that a statute could be applied to pending cases

based on its text alone, without a separate temporality

provision in the underlying legislative act. /d. at 257-263,

273. See also, Madrid v. Gomez, 150 F.3d 1030, 1036 (9”

Cir. 1998). Indeed, Landgraf expressly approved of such an

approach, as exemplified in United States v. Schooner Peggy,

5 U.S. 103 (1801), as “simply a response to the language of

the statute.” 511 U.S. at 273. As this Court has noted,

Congress is presumed to legislate with this Court's

retroactivity precedents in mind. /d. at 261; Lindh, 117 S.Ct.

at 2064. Hence, Congress likely thought that § 1997e(d) was

independently applicable to pending cases and that there was

therefore no need to make other provisions regarding its

temporal scope.

B. Applying § 1997e(d) To All Post Enactment

Fee Requests Would Not Have An

Improper Retroactive Effect Regardless of

When the Underlying Services Were

“Rendered.

Although Congress’ clearly expressed intention is

sufficient to settle the matter, application of § 1997e(d) is

independently justified because it would not have the type of

retroactive effect forbidden by Landgraf. On a fundamental

level, the statute regulates matters that are so far removed

from the parties’ primary conduct that it cannot be

impermissibly retroactive. Furthermore, this Court’s

12

teachings on attorney's fees make it clear that litigants have

no more than a subjective expectation of recovering any

particular fee prior to its actual award, not the type of “right”

sufficient to support a finding of improper retroactive effect

under Landgraf. Those unavoidable realities justify

application of § 1997e(d), regardless of when the underlying

services were rendered.

1. Section 1997e(d) Does Not Regulate

Primary Conduct.

The touchstone for determining if a statute has an

improper retroactive effect is whether it unfairly changes the

substantive legality of the parties’ pre-enactment “primary

conduct,” the conduct at issue in the underlying lawsuit. If

the statute would change that substantive legality after the

fact, it is improperly retroactive. If the statute merely changes

the procedure for determining that substantive legality,

application is permissible because parties have a diminished

reliance interest in such procedure. Landgraf, 511 U.S. at

275.

More than a century of precedent establishes a sharp

distinction between parties’ primary conduct and the separate

issue of how their attorneys will be paid. The subject was

initially treated as so unrelated to the substantive rights

litigated in federal courts that it was left to local discretion.

Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S.

240, 247-257 (1975). In 1881, the Court observed that a

controversy over fees “though incidental to the cause... was

a collateral one, having a distinct and independent character”

from the dispute giving rise to a lawsuit. /rustees v.

Greenough, 105 U.S. 527, 531 (1881). Hence, fee disputes

were “regarded as so far independent” from the underlying

cause of action as to be treated as a separate piece of

litigation. /d. at 531. In 1939, this Court restated those

13

conclusions and added that fee controversies are “independent

proceedings supplemental to the original” lawsuit. Sprague v.

liconic Nat'l Bank, 307 U.S. 161, 169, 170 (1939).

More recently, it has been observed that a “court's

decisions of entitlement to fees will therefore require an

inquiry separate from the decision on the merits” and that an

award of fees cannot be “fairly characterized as an element of

relief’ on the merits. White v. New Hampshire Dept. of

Employment Security, 455 U.S. 445, 451-452 (1982)

(emphasis added). Most tellingly, this Court has expressly

relied upon that distinction to apply new fee statutes to

pending cases, noting that “no increased burden was imposed

since [the new statute] did not alter the [parties’]

constitutional responsibility.” Bradley v. Richmond Sch. Bd.,

416 U.S. 696, 721 (1974).

The relationship between § 1997e(d) andthe

substantive matters underlying the cases it controls are just as

separate. Those cases arise from disputes behind prison walls

between prisoners and prison administrators. Prisoners, who

are “mostly uneducated and indeed largely illiterate,” Lewis v.

Casey, 518 U.S. 343, 354 (1996), probably did not give much

thought to such abstract concepts as proportionality and

market rates in their interactions with corrections staff They

are concerned about more immediate matters as “[w]hat for a

private citizen would be a dispute with his landlord, with his

employer, with his tailor, with his neighbor, or with his

banker, becomes, for the prisoner, a dispute with the State.”

Preiser v. Rodriguez, 411 U.S. 475, 492 (1973). Similarly, it

is doubtful that “prison officials, on the spot and with the

responsibility for the safety of inmates and staff,” Wolff v.

McDonell, 418 U.S. 539, 566 (1974), contemplated the fine

points of lodestar calculations when meeting the intensely

practical, and often violent, challenges giving rise to prisoner

suits.

14

Given the nature of such disputes and the more

pressing matters competing for the participants’ attention, it is

unlikely that parties based their actions, the “primary

conduct” at issue in cases controlled by § 1997e(d), on the

applicability of that statute. Therefore, applying that statute to

their cases simply cannot have the type of unfair effect

prohibited by Landgraf.

2. Parties Do Not Have “Rights” That

Can Be “Impaired” by § 1997e(d).

Landgraf teaches that application of a statute is

improperly retroactive if it would “impair rights.” /d. at 280.

Of crucial importance, it also makes clear that subjective

expectations do not rise to the level of “rights” and that such

expectations can be retrospectively “upset” without offending

retroactivity principles:

Even uncontroversially prospective

statutes may unsettle expectations and impose

burdens on past conduct: a new property tax

or zoning regulation may upset the reasonable

expectations that prompted those affected to

acquire property, a new law banning gambling

harms the person who had begun to construct

a casino before the law’s enactment or spent

his life learning to count cards. If every time a

man relied on existing law in arranging his

affairs, he were made secure against any

change in legal rules, the whole body of our

law would be ossified forever. _

Id. at 270 n. 24 (citations and internal punctuation omitted).

A party has no more than an unprotected, subjective

expectation of recovering any particular fee prior to that fee

being awarded. Hence, applying § 1997e(d) to fee requests is

a

15

not improperly retroactive, regardless of when the services

giving rise to those requests were rendered.

It is well settled that parties have no common law

right to recover their attorney’s fees from opposing parties.

Alyeska Pipeline Service Co. v. Wilderness Soc’y, 421 U.S.

240 (1975). Although Congress partially filled that void by

making recovery of fees mandatory under some statutes, it did

not mandate such a recovery under 42 U.S.C. § 1988. /d. at

261-262. Instead, it made any award discretionary. n.34, H.

Rep. 1558, 94" Cong, 2d. Sess. (1976) 3, 5, 8

Consequently, Ҥ 1988 does not guarantee that lawyers will

recover fees...” Kentu€ky v. Graham, 473 U.S. 159, 168

(1985). Instead, counsel may not recover fees unless they

meet their burden of proving that an award is appropriate, a

burden that some have suggested may only be met with clear

and convincing evidence. Hensley v. Lckerhart, 461 U.S.

424, 441 (1983) (Burger, C.J., concurring).

Moreover, “[C]Jongress does not authorize an award

of fees whenever it was reasonable for a plaintiff to bring a

lawsuit or whenever conscientious counsel tried the case with

devotion and skill.” /d. at 436. Some final, enforceable relief

on the merits must be obtained. Interlocutory triumphs and

other successes, no matter how impressive, are not sufficient

to make a litigant eligible to recover fees as a “prevailing

party.” Hanrahan v. Hampton, 446 U.S. 754, 757-758

(1981); Kentucky v. Graham, supra. Once that threshold has

been crossed, a significant degree of success must be shown

as the fact “that a plaintiff is the prevailing party may say little

about whether the expenditure of counsel’s time was

reasonable in relation to the success achieved.” Hensley, 461

U.S. at 436. See also Farrar v. Hobby, 506 U.S. 103, 115

(1992). Finally, even if those criteria are met, expectations of

fees may be dashed by subsequent developments having

nothing to do with the case itself. Rhodes v. Stewart, 488 U.S.

1 (1988); Hewitt v. Helms, 482 U.S. 755 (1987).

16

In sum, plaintiffs have nothing more than a subjective

expectation that they will recover any particular fee prior to

actually receiving an award under § 1988. They certainly do

not have a “right” that could be improperly “impaired” for

purposes of Landgraf. Hence, applying § 1997e(d) to all

awards made after the enactment of the statute would not

offend retroactivity principles.

Cc. Application of § 1997e(d) to Fees for Post

Enactment Services is Required Without

Regard to Landgraf.

Although the Amici submit that application of

§ 1997e(d) is consistent with Landgraf regardless of when the

services giving rise to the fees were rendered, a different

analysis independently supports that result with regard to fees

for services rendered after enactment. y

Initially, it must be noted that the Sixth Circuit erred

in holding that Landgraf precludes application of § 1997e(d)

to requests for fees for post-enactment services. Landgraf

only controls if the statute at issue changes the consequences

of conduct that preceded enactment. It applies only “when a

case implicates a federal statute enacted after the events in

suit.” Jd. at 280 (emphasis added). Hence, application of

§ 1997e(d) to fee requests for post-enactment services cannot

possibly be precluded by Landgraf.

More importantly, application of § 1997e(d) to such

requests is supported by a stream of precedent that is both

wide and deep. Once source flows from this Court’s civil

jurisprudence. For more than 120 years, this Court has

upheld application of statutes passed after the initiation of suit

to post filing, post-enactment matters covered by their terms.

Ex parte Collette, 337 U.S. 55, 71 (1949); McBurney v.

Carson, 99 U.S. 567, 569 (1878). The other source springs

17

from criminal cases, where, as summarized in Dobbert v.

Florida, 432 U.S. 282, 292-293 (1977), the Court has

consistently upheld the application of new rules or statutes in

pending cases, even when those changes would disadvantage

the criminal defendant.

There is no reason to depart from that pattern here.

There can be no claim of unfair surprise because the fee

limitations of the PLRA were widely known prior to passage

of the Act. Kirk Victor and Peter Stone, /rom the K Street

Corridor, The National Journal, Jan. 13, 1996, at 76; John

Dunne, Unconscionable Limits on Prisoner Lawsuits, The

Washington Post, Nov. 8, 1995, at Al7. Moreover, once

§ 1997e(d) was enacted prisoners’ counsel were on notice of

its terms because, like all persons, they are presumed to know

the law. Most importantly, appropriate compensation of

counsel in federal cases is within the sound discretion of

Congress and this Court has been reluctant to find reason to

depart from fee provisions that are far more parsimonious

than § 1997e(d). Pierce v. Underwood, 487 U.S. 552, 572

(1988). Hence, counsel seeking to recover fees for services

rendered after § 1997e(d)’s enactment can claim neither

procedural surprise nor substantive hardship. Therefore,

there is no reason to depart from this Court’s settled

precedents.

18

CONCLUSION

For the foregoing reasons, the 39 Amici States urge

the Court to reverse the decisions below and hold that

42 U.S.C. § 1997e(d) controls all requests for attorney’s fees

considered after its enactment, regardless of when the services

giving rise to those requests were rendered.

Respectfully submitted,

BETTY D. MONTGOMERY

Attorney General

STUART W. HARRIS ;

Assistant Attorney General

Counsel of Record

TODD R. MARTI

Assistant Attorney General

Corrections Litigation Section

140 E. Town Street, 14"" Floor

Columbus, Ohio 43215-6001

(614) 644-7233

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December 31, 1998

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