Montcalm Publishing v. Commonwealth of VA , 199 F.3d 168 ( 1999 )


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  • PUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    MONTCALM PUBLISHING CORPORATION,
    Plaintiff-Appellant,
    and
    DONALD ARLIS HODGES; MICHAEL
    GLYNN FLORA,
    Plaintiffs,
    v.
    COMMONWEALTH OF VIRGINIA; RONALD
    ANGELONE, in his official capacity as
    Director of the Department of
    Corrections of the Commonwealth
    of Virginia; R. J. BECK; J. HORTON;
    R. A. YOUNG; E. C. MORRIS; MS.
    No. 99-6308
    SUMMERS; JOHN DOE, 1 - 7, in their
    official capacities such fictitious
    names being designed to identify
    those VDOC employees whose true
    identities are now unknown to
    plaintiff-intervenor, but who serve
    as (a) members of the VDOC
    Publication Review Committee, (2)
    Warden or Superintendent of Keen
    Mountain Correctional Center
    (KMCC), and (3) functional KMCC
    mailroom censor; J. Phippin; MR.
    BECK,
    Defendants-Appellees.
    Appeal from the United States District Court
    for the Western District of Virginia, at Roanoke.
    Samuel G. Wilson, Chief District Judge.
    (CA-92-696-R, CA-92-907-R)
    Argued: October 27, 1999
    Decided: December 3, 1999
    Before WIDENER and MOTZ, Circuit Judges,
    and BUTZNER, Senior Circuit Judge.
    _________________________________________________________________
    Reversed and remanded by published opinion. Judge Motz wrote the
    opinion, in which Judge Widener and Senior Judge Butzner joined.
    _________________________________________________________________
    COUNSEL
    ARGUED: Keith S. Orenstein, ORENSTEIN & ORENSTEIN, P.C.,
    New York, New York, for Appellant. Mark Ralph Davis, Senior
    Assistant Attorney General, Criminal Division, OFFICE OF THE
    ATTORNEY GENERAL, Richmond, Virginia, for Appellees. ON
    BRIEF: Mark L. Earley, Attorney General, Criminal Division,
    OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for
    Appellees.
    _________________________________________________________________
    OPINION
    DIANA GRIBBON MOTZ, Circuit Judge:
    This appeal presents questions as to whether, and to what extent,
    the limits on attorney's fees in the Prison Litigation Reform Act gov-
    ern fees sought by a non-prisoner who intervenes in a case originally
    brought by a prisoner. We agree with the district court that the Act's
    fee caps do apply to the fees requested by the intervenor here. The
    district court, however, imposed these caps on all legal work per-
    formed throughout the course of litigation, both before and after the
    effective date of the Act. Because the Supreme Court's recent deci-
    sion in Martin v. Hadix, 
    119 S. Ct. 1998
    (1999), restricts the Act's
    reach to fees for services performed after its effective date, we must
    reverse and remand for further proceedings.
    2
    I.
    In 1992, two inmates at Keen Mountain Correctional Center, Don-
    ald Hodges and Michael Flora, initiated this civil rights action by fil-
    ing separate pro se complaints. They alleged that prison officials had
    violated their First Amendment rights by preventing them from
    receiving Gallery magazine because of its graphic, sexually explicit,
    and at least arguably obscene material. The district court denied the
    corrections officials' motion for summary judgment and referred the
    cases to a magistrate judge, who consolidated the two cases.
    A year after the first pro se complaint was filed and prior to any
    evidentiary hearing, Montcalm Publishing Corporation, the publisher
    of Gallery, moved to intervene in the consolidated action. The magis-
    trate judge granted that motion. Montcalm, too, challenged the correc-
    tional officials' refusal to distribute Gallery to the inmates. Montcalm
    alleged that Virginia Department of Corrections Division Operating
    Procedure 852 (DOP 852), which permits official interception of
    obscene publications, violated its First Amendment and due process
    rights. Specifically, Montcalm asserted that DOP 852 infringed on its
    rights: "(a) to be free from prior governmental restraints on the publi-
    cation of Gallery magazine, (b) to be free from the outright suppres-
    sion of its publication of Gallery magazine, (c) to be free from the
    arbitrary, capricious and invidious suppression of its publication of
    Gallery magazine, and (d) to adequate notice and a reasonable oppor-
    tunity to be heard before its publication of Gallery magazine is
    restrained or suppressed by the government." Montcalm's Complaint
    ¶ 19.
    The district court upheld the constitutionality of DOP 852 in all
    respects. See Hodges v. Virginia, 
    871 F. Supp. 873
    (W.D. Va. 1994).
    Montcalm alone appealed to this court. On appeal, Montcalm argued
    only that DOP 852 violated its due process right to receive notice and
    an opportunity to be heard before its publications were disapproved
    for receipt by prisoners. We agreed with Montcalm on this issue and
    reversed. See Montcalm Publ'g Corp. v. Beck, 
    80 F.3d 105
    , 106 (4th
    Cir.), cert. denied, 
    519 U.S. 928
    (1996). After the prison officials
    unsuccessfully petitioned for rehearing and for certiorari to the
    Supreme Court, the district court issued a memorandum opinion and
    order consistent with our mandate.
    3
    Montcalm then moved for an award of attorney's fees under 42
    U.S.C. § 1988(b) (Supp. II 1996). That statute empowers a court to
    award reasonable attorney's fees to prevailing parties in federal civil
    rights actions. The district court found that Montcalm constituted a
    prevailing party entitled to reasonable attorney's fees under § 1988,
    but that all such fees were limited by the Prisoner Litigation Reform
    Act (PLRA), 42 U.S.C. § 1997e(d) (Supp. II 1996). The PLRA pro-
    vides that in certain cases "[n]o award of attorney's fees . . . shall be
    based on an hourly rate greater than 150 percent of the hourly rate
    established . . . for payment of court-appointed counsel."
    § 1997e(d)(3). The district court applied the PLRA's rate limits to all
    of Montcalm's requested fees for legal services provided over the
    entire course of the litigation. After determining that the number of
    hours for which Montcalm sought recovery was excessive, the district
    court granted Montcalm a reduced award.
    Montcalm appeals, asserting that the district court improperly
    applied the PLRA to its attorney's fees award and erroneously
    reduced its compensable hours.
    II.
    Montcalm's first and principal argument is that the PLRA "does
    not operate as a limitation on the attorney's fees that may be recov-
    ered by a nonprisoner." Brief of Appellant at 10.
    Montcalm notes the myriad provisions in the PLRA narrowing
    judicial relief available to prisoners, establishing new requirements
    for prisoners seeking such relief, and imposing penalties on prisoners
    bringing frivolous lawsuits. See Alexander S. v. Boyd, 
    113 F.3d 1373
    ,
    1379-80 n.6 (4th Cir. 1997) (summarizing various provisions of
    PLRA), cert. denied, 
    118 S. Ct. 880
    (1998). Montcalm also relies on
    portions of the legislative history of the PLRA in which various legis-
    lators stated the view that the Act "contains several measures to
    reduce frivolous inmate litigation." See, e.g., 141 Cong. Rec. S14,317
    (daily ed. Sept. 26, 1995) (statement of Sen. Abraham). The structure
    of the statute and its legislative history, Montcalm contends, "demon-
    strate[ ] that Congress intended the restrictions on the recovery of
    attorney's fees to be applicable solely to prisoners and their lawyers
    4
    bringing lawsuits challenging the conditions of the prisoners' impris-
    onment." Brief of Appellant at 20.
    Although the PLRA's structure and history are also consistent with
    a legislative desire to curb judicial involvement in the "daily opera-
    tion of federal and state correctional facilities," Alexander 
    S., 113 F.3d at 1379
    , certainly the statute's focus is to limit litigation brought
    by prisoners. Thus, Montcalm's argument that the statute applies
    "solely to prisoners" is not unreasonable. It is, however, an argument
    at odds with the plain language of the statute.
    The PLRA expressly imposes limitations on the amount of attor-
    ney's fees awarded "[i]n any action brought by a prisoner who is con-
    fined to any jail, prison, or other correctional facility." 42 U.S.C.
    § 1997e(d)(1). Thus, Congress has mandated that statutory fee limits
    apply not "solely to prisoners" but to "any action brought by a pris-
    oner." Unquestionably, the case at hand is one"brought by a pris-
    oner." Indeed, two prisoners, Hodges and Flora, initiated this case;
    Montcalm merely intervened. Thus, application of the PLRA is ines-
    capable.
    Although this holding may seem harsh, it is dictated by Mont-
    calm's decision not to bring an independent action but to intervene in
    the prisoners' action. Montcalm must now live with the consequences
    of that decision. Moreover, our holding accords with the general rule
    that "the intervenor is treated as if he were an original party." 7C
    Charles Alan Wright et al., Federal Practice and Procedure § 1920
    (2d ed. 1986); see also 1 Mary F. Derfner & Arthur D. Wolf, Court
    Awarded Attorney's Fees ¶ 7.03 (1998) (explaining that intervenors
    are "generally eligible for an award of fees just as though they were
    an original party to the litigation").*
    _________________________________________________________________
    *We recognize that a court, in its discretion, may regard intervention
    as a separate action when the intervenor has an independent basis for
    jurisdiction. See Atkins v. State Bd. of Educ. , 
    418 F.2d 874
    , 876 (4th Cir.
    1969); accord Harris v. Illinois-California Express, Inc., 
    687 F.2d 1361
    ,
    1367 (10th Cir. 1982); Fuller v. Volk, 
    351 F.2d 323
    , 328 (3d Cir. 1965).
    Montcalm, however, has not asserted that a federal court would have an
    independent basis for jurisdiction over its claim in the absence of a pris-
    oner complaint; nor has Montcalm asked either the district court or this
    court to exercise any discretion to treat its intervention as a separate
    action. Accordingly, we have no occasion to consider such arguments.
    5
    III.
    Much of the legal work in this case--that done at the trial level on
    the merits and on direct appeal--was performed prior to the effective
    date of the PLRA, April 26, 1996. In accordance with then-
    controlling circuit precedent, see Alexander S. , 113 F.3d at 1388, the
    district court applied the PLRA caps to all of the fees requested by
    Montcalm.
    After the district court ruled on Montcalm's petition for attorney's
    fees, however, the Supreme Court issued Martin v. Hadix, 
    119 S. Ct. 1998
    (1999). The Court there held that the PLRA"limits attorney's
    fees with respect to postjudgment monitoring services performed after
    the PLRA's effective date but it does not so limit fees for postjudg-
    ment monitoring performed before the effective date." 
    Id. at 2001
    (emphasis added).
    Neither party has briefed the significance of Hadix here. At oral
    argument counsel for the corrections officials, while acknowledging
    the rule enunciated in Hadix, suggested that it may not apply in the
    case at hand because in Hadix the prevailing parties' entitlement to
    reasonable fees was recognized in an order that substantially ante-
    dated the effective date of the PLRA. Thus, the reliance interest of the
    prevailing parties and their attorneys in Hadix was stronger than that
    in the present case, in which no pre-existing order acknowledged that
    reasonable attorney's fees would be awarded for satisfactory services
    rendered.
    This argument is not without force. We recognize the factual dif-
    ferences between this case and Hadix. The reliance interest of Mont-
    calm's attorneys is certainly less firmly based, resting as it does
    entirely on the existence of a federal statute--42 U.S.C. § 1988--
    which permits a court to award reasonable fees to parties who prevail
    in establishing a violation of federal law. However, although the
    Supreme Court carefully set forth the facts of the case in its opinion
    in Hadix, it seems to us that the holding in Hadix cannot fairly be read
    to be confined to those facts.
    Both at the beginning and at the end of its opinion in Hadix, the
    Court stated its holding in general terms without emphasis on the pre-
    6
    existing fee award order. Thus, at the outset of the opinion, the Court
    summarized its holding:
    We conclude that § 803(d)(3)[42 U.S.C.§ 1997e(d)(3)] lim-
    its attorney's fees with respect to postjudgment monitoring
    services performed after the PLRA's effective date but it
    does not so limit fees for postjudgment monitoring per-
    formed before the effective date.
    
    Hadix, 119 S. Ct. at 2001
    . Similarly, the Court concluded its opinion
    explaining:
    [T]he PLRA contains no express command about its tempo-
    ral scope. Because we find that the PLRA, if applied to post-
    judgment monitoring services performed before the
    effective date of the Act, would have a retroactive effect
    inconsistent with our assumption that statutes are prospec-
    tive, in the absence of an express command by Congress to
    apply the Act retroactively, we decline to do so.
    
    Id. at 2008
    (citation omitted).
    In view of this general language, we believe that Hadix must be
    read to hold that the PLRA's limit on attorney's fees does not apply
    to legal services performed prior to the Act's effective date. This con-
    clusion accords with our recent interpretation of Hadix, see Altizer v.
    Deeds, 
    191 F.3d 540
    , 544 (4th Cir. 1999) (summarizing Hadix as
    holding that "the PLRA's limitation on attorneys' fees may not be
    applied to services performed prior to the PLRA's enactment"), and
    that of other courts. See, e.g., Chatin v. Coombe, 
    186 F.3d 82
    , 90 (2d
    Cir. 1999) (noting that "[i]n Hadix, the Supreme Court ruled that, in
    a case filed prior to the effective date of the PLRA, § 803(d)(3)
    applied to legal work performed after the effective date, but not to
    legal work performed before it"); Ilick v. Miller, ___ F. Supp. 2d ___,
    
    1999 WL 781654
    (D. Nev. Sept. 28, 1999) (ruling that"prior section
    1988 law applies to all fees billed up to the effective date of the
    PLRA (i.e., April 26, 1996), and that the PLRA fee cap applies to all
    fees billed after that date").
    7
    Accordingly, we remand this case to the district court so that it may
    award attorney's fees in light of Hadix. We note that the district court
    indicated in its opinion the hourly rates it would have applied if it had
    concluded that the PLRA did not govern. The court based those rates
    on uncontroverted affidavits from local attorneys attesting to the rea-
    sonableness of such rates in that community. Montcalm contends,
    however, that it should receive reimbursement at the standard rates of
    its New York counsel.
    "[T]he community in which the court sits is the first place to look
    to in evaluating the prevailing market rate." Rum Creek Coal Sales,
    Inc. v. Caperton, 
    31 F.3d 169
    , 179 (4th Cir. 1994); see also National
    Wildlife Fed'n v. Hanson, 
    859 F.2d 313
    , 317 (4th Cir. 1988). If a mat-
    ter is so complex or specialized that "no attorney, with the required
    skills, is available locally," a court may, of course, award fees for
    counsel located elsewhere. 
    Id. In the
    case at hand, however, the dis-
    trict judge, who was intimately familiar with this litigation, concluded
    that this case was "straightforward and uncomplicated" and could
    have been competently performed by available local counsel. Our
    careful review of the record reveals no abuse of discretion in this
    assessment.
    IV.
    Finally, Montcalm argues that the district court improperly reduced
    the number of compensable hours for which fees would be awarded.
    The district court awarded Montcalm fees for only 76.15 of the
    511.6 hours it claimed for work at the trial level. The court reached
    this calculation first by eliminating 180 hours for discovery and 27
    hours for an evidentiary hearing. (The court also deducted the related
    expenses claimed for each.) The district court found, and Montcalm
    does not dispute, that the procedural due process claim on which
    Montcalm prevailed involved "no factual issues;" thus, neither the
    discovery nor the hearing were relevant to Montcalm's single suc-
    cessful claim. Accordingly, elimination of the fees and expenses
    devoted to discovery and the evidentiary hearing seems entirely justi-
    fied.
    The district court awarded only 25% of the remaining 304.6 hours
    requested for the trial phase. "[B]ecause Montcalm failed to properly
    8
    document its billing records," the court had to estimate how much
    time the attorneys spent on the successful procedural due process
    claim as opposed to the three other constitutional claims Montcalm
    asserted. The court explained that on the basis of its experience with
    "this litigation and the documents filed in the case," it believed that
    "Montcalm's attorneys devoted the bulk of their efforts to the First
    Amendment issues." But in order to "give Montcalm the benefit of the
    doubt" it "assume[d] that its attorneys devoted their efforts equally
    between [sic] the four alleged violations."
    Montcalm maintains that all issues in the case were interrelated
    and, therefore, the district court should award fees"without any
    reduction in time to account for the lack of success proper on the First
    Amendment cause of action." Brief of Appellant at 26. We find, how-
    ever, that although Montcalm's four claims are all related to the sup-
    pression of Gallery magazine by Virginia corrections officials, they
    were not inseparable. Montcalm's core claim was that DOP 852 con-
    stituted an unconstitutional prior restraint or"outright" governmental
    suppression of speech; its fall-back position was that DOP 852 consti-
    tuted an unconstitutionally arbitrary, capricious, and invidious sup-
    pression of speech; and its ultimate fall-back position was that DOP
    852 was unconstitutional because it suppressed speech without notice
    or an opportunity to be heard. The only contention on which Mont-
    calm prevailed--the "ultimate fall-back," solely procedural contention
    --is markedly different and less complex than those on which it did
    not prevail.
    We recognize that "a mathematical approach comparing the total
    number of issues in the case with those actually prevailed upon" is
    inappropriate. See Hensley v. Eckerhart, 
    461 U.S. 424
    , 435 n.11
    (1983). Attorneys may devote significantly different amounts of time
    to issues of varying complexity. Moreover, "[w]here a plaintiff has
    obtained excellent results, . . . the fee award should not be reduced
    simply because the plaintiff failed to prevail on every contention
    raised in the lawsuit." 
    Id. at 435.
    However, a careful review of the
    record in this case reveals no abuse of the district court's discretion
    in reducing the award for fees incurred at the trial level.
    Finally, Montcalm asked for an award of 344.5 hours for the appel-
    late phase of the litigation. This phase included the appeal to this
    9
    court, the response to the petition for certiorari to the Supreme Court,
    the litigation on remand, and the attorney's fees petition. Montcalm
    litigated only the procedural due process issue throughout this phase
    of the litigation. The district court nonetheless held that the request
    for fees in the appellate phase was also "excessive." The court
    explained that Montcalm appealed a novel but uncomplicated issue,
    noting that Montcalm itself described the procedural due process
    claim as a "very simple issue" in its opposition to the petition for cer-
    tiorari in the Supreme Court. The district court also noted that Mont-
    calm had briefed and researched this issue during the lower court
    phase. Explaining that it "ha[d] difficulty believing" the publisher
    needed "the equivalent of one attorney working over eight forty-hour
    weeks" for the appellate phase, the court reduced by 25% the hours
    for the appellate phase.
    Once again, it appears to us that the district court in no way abused
    its discretion in arriving at this conclusion. We do note that at one
    point in its opinion the district court indicated that it would allow
    Montcalm 172.3 hours for the appellate phase and in another that it
    would allow 256.875 hours. Neither of these figures equals precisely
    75% of 344.5; we trust the district court will clarify the calculations
    on remand.
    V.
    For the foregoing reasons, we affirm the district court's conclusion
    that the PLRA attorney's fees limits apply to the fees requested by
    Montcalm in this action. We remand, however, so that the court may
    properly apply such limits only to those fees incurred after the effec-
    tive date of the PLRA.
    REVERSED AND REMANDED
    10