Opinion
Case No. 4:92-CV-110
December 5, 2002
OPINION
This matter is before the Court on Plaintiffs' Motion for Award of Attorney Fees and Costs, which relates to disputed attorney fees and costs incurred between January 1, 2002 and June 30, 2002 in this matter. Defendants have opposed the Motion on several grounds, though foremost because Plaintiffs have sought fees at a rate in excess of the maximum rate allowed by the attorney fee provision of the Prisoner Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(d).
Defendants have already paid a large portion of the attorney fees and costs ($316,526.54) for this time period, which amounts were not contested. (See Letter of Leo Friedman of September 9, 2002, Plaintiffs' Attachment 5; Defendants' Brief, at 1 n. l.)
Plaintiffs have sought the following disputed fees: $32,074.51 for Patricia Streeter; $33,525.06 for Michael Barnes; and $33,054.60 for the National Prison Project. Of those amounts, the greatest part of the disputed fees relates to the billing rate applicable to the services provided. A much smaller portion of the fees are also disputed on the ground that the services performed were not reasonably and necessarily expended for the litigation.
As the parties are well aware, the attorney fee provision of the PLRA has, itself, already generated significant dispute and controversy in this matter. Title 42 United States Code section 1997(e)(d)(3) was amended, in the course of this litigation, to provide that:
No award of attorney's fees in an action [brought by a prisoner confined in a correctional facility] 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).
In Hadix v. Johnson, 143 F.3d 246, 250-56 (6th Cir. 1998), the Sixth Circuit Court of Appeals determined that the above language capped attorney fee awards at a rate of 150 percent of the Criminal Justice Act ("CJA") rate for the particular district, but that the limitation should not apply to a case in which the attorneys were employed and performed services prior to the PLRA's effective date. This holding was reversed in part by the United States Supreme Court, which held that the PLRA limitation applied to fee requests, regardless of the date of attorney employment or the date of the filing of the case, effective upon the PLRA's effective date (April 26, 1996). Martin v. Hadix, 527 U.S. 343, 361-62 (1999). Thus, the Supreme Court's holding permitted a maximum fee of $112.50 per hour for attorney fees on or after April 26, 1996, but did not disturb fees for services incurred prior to that date.
In September 2000, the Judicial Conference authorized an increase in the maximum attorney fee rate under the CJA, 18 U.S.C. § 3006A, to $113 per hour. However, this authorized increase has never been fully funded by Congress. Rather, the fiscal judicial appropriations for 2002 included funding for payment of CJA attorneys for a maximum rate of $90 per hour, effective May 1, 2002. This turn of events has created a controversy between the parties concerning the appropriate rate. Plaintiffs maintain that the appropriate attorney fee rate is now $169.50 per hour. Defendants, on the other hand, maintain that the appropriate rate is $112 per hour until May 1, 2002, at which time (according to Defendants) the rate increased to $135 per hour. Essentially, this disagreement concerns whether the PLRA attorney fee limitation was intended to apply to 150 percent of the maximum amount authorized for payment under the CJA or 150 percent of the maximum amount implemented for payment under the CJA, and also the effective date for any change in attorney fee rates.
To understand this issue, one must also grasp the statutory mechanisms for authorization and funding of CJA attorney fee payment. The Judicial Conference's action in establishing a greater authorized rate was done pursuant to 18 U.S.C. § 3006A(d)(1), which allows, in pertinent part, the Judicial Conference to "raise the maximum hourly rates specified in this paragraph. . . ." The same subsection, though, also gives the Judicial Conference authority to "set guidelines for developing the maximum hourly rates for each circuit . . ., with variations by district, where appropriate. . . ."
With this backdrop, it is not surprising that judicial precedent has not agreed upon the appropriate PLRA attorney rate in those situations where a greater CJA rate is authorized than is implemented for payment in a district. In Hernadez v. Kalinowski, 146 F.3d 196, 201 (3rd Cir. 1998), the Third Circuit held that the PLRA limitation applied to 150 percent of the amount implemented for payment within a district, as opposed to 150 percent of the maximum amount authorized for payment by the Judicial Conference. This holding was followed by the Ninth Circuit in Madrid v. Gomez, 190 F.3d 990, 993 n. 2 (9th Cir. 1999) and the Southern District of Ohio in Morrison v. Davis, 195 F. Supp.2d 1019, 1022-23 (S.D.Ohio 2001). The Morrison decision cited several other court decisions supporting this interpretation and also relied on the previous Hadix decision which set the PLRA rate by reference to the maximum fee implemented within the applicable district.
Notwithstanding, Plaintiffs' position is supported by the Ninth Circuit decision in Webb v. Ada Co., 285 F.3d 829, 838-39 (9th Cir. 2002), which authorized payment of up to 150 percent of the CJA authorized amount, regardless of whether implemented within district, and the decision in Ilick v. Miller, 68 F. Supp.2d 1169, 1174 (D.Nev. 1999). Essentially, Plaintiffs' authorities and Defendants' authorities disagree over whether the "rate . . . established . . . for payment" under 42 U.S.C. § 1997(e)(d) is the maximum authorized CJA rate or the rate implemented and funded for payment, with none too much analysis over why one rate should be preferred over the other.
This Court's first impulse on reading of this controversy is to opt for the maximum rate as opposed to the implemented rate because the statutory language is perfectly ambiguous and because it seems only fair to read ambiguous statutory language imposing an arbitrary cap in favor of those persons injured by the cap (i.e., Plaintiffs). However, on reflection, the Court will do otherwise, to comply with precedent and the likely intent of Congress. The previous Hadix decision determined the applicable rate in terms of the amount implemented within the Eastern District for payment. This rate is favored by the majority of the PLRA decisions on this issue. Moreover, the use of such a rate is a practical and commonsense construction of the statutory language which is sensitive to the intent of Congress in limiting PLRA attorney fees and in making the limitation subject to Congress' own legislative authority in funding CJA attorneys. Although no one apparently thought to ask, at the time of the PLRA's enactment, whether the PLRA limitation applied to the maximum authorized rate or the maximum implemented rate, it is unlikely, given the politics of the issue, that a majority of legislators would have raised their hands in favor of the higher rate. Therefore, the Court determines that applicable rates for Plaintiffs' attorneys are $112.50 for services performed before May 1, 2002 and $135.00 per hour for services performed on or after May 1, 2002.
As to the remainder of challenges made by Defendants to Plaintiffs' fees and costs, the Court determines that the challenges should be rejected, subject to the rates stated above. It is true, as argued by Defendants, that Plaintiffs bear the burden of proof of reasonableness as to their billed time and expenses. See Northcross v. Bd. of Ed. of Memphis City Schools, 611 F.2d 624 (6th Cir. 1970). It is also true that a district court must be careful to decline to award fees for attorney fees or expenses which are excessive, redundant, or otherwise unnecessary. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Reed v. Rhodes, 179 F.3d 453, 469-72 (6th Cir. 1999); Northcross, 611 F.2d at 636-37. While the affidavits of counsel must be taken into consideration, they are not conclusive. Northcross, 611 F.2d at 636. Nevertheless, this scrutiny of appropriate billing judgment is precisely that — a question of whether hours were inappropriately billed. It is not an invitation to make hindsight judgments as to whether services were absolutely necessary to obtain a given result. See Woodbridge v. Marlene Industries Corp., 898 F.2d 1169, 1177 (6th Cir. 1990); Grant v. Martinez, 973 F.2d 96, 99 (2nd Cir. 1992).
Upon review of the documentation of Plaintiffs' attorneys' hours and their responses to Defendants' particular objections, the Court finds that all of the hours of legal service and expenses to which Defendants objected were reasonably and necessarily incurred in this litigation. Therefore, the objection to those fees will be denied, subject to the rates specified above.
An Order awarding attorney fees shall be granted, consistent with the Court's Opinion.
ORDER AWARDING ATTORNEY FEES
In accordance with the Court's Opinion of this date;
IT IS HEREBY ORDERED that Plaintiffs' Motion for Attorney Fees and Costs (Dkt. No. 1657) is GRANTED IN PART AND DENIED IN PART as stated in the Court's Opinion.
IT IS FURTHER ORDERED that, consistent with the Court's Opinion, the Court approves of all of Plaintiffs' billed hours of legal service and legal expenses for the period of January 1, 2002 through June 30, 2002, subject to the attorney fee rate of $112.50 per hour before May 1, 2002 and $135 per hour on and after May 1, 2002.