                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-13-1998

Hernandez v. Kalnowski
Precedential or Non-Precedential:

Docket 97-1734




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Recommended Citation
"Hernandez v. Kalnowski" (1998). 1998 Decisions. Paper 158.
http://digitalcommons.law.villanova.edu/thirdcircuit_1998/158


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Filed July 13, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-1734

SERGIO HERNANDEZ,
       Appellant

v.

KALINOWSKI, SGT.; CLEMSON, C.O.; NOVOTNEY, CAPT.;
JOHN DOE, C.O., I; JOHN DOE, C.O., II

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 96-cv-06269)

Argued: May 7, 1998

BEFORE: SCIRICA, COWEN and BRIGHT,*
Circuit Judges

(Filed July 13, 1998)

David Rudovsky, Esq. (Argued)
 and Angus Love, Esq.
Pennsylvania Institutional
 Law Project
924 Cherry Street, Suite 523
Philadelphia, PA 19107
Counsel for Appellant



_________________________________________________________________

*Honorable Myron H. Bright, United States Circuit Judge for the 8th
Circuit Court of Appeals, sitting by designation.
       John G. Knorr, III, Esq. (Argued)
       Office of Attorney General of
       Pennsylvania
       Department of Justice
       Strawberry Square, 15th Floor
       Harrisburg, PA 17120

       Randall J. Henzes, Esq.
       Office of Attorney General of
       Pennsylvania
       21 South Twelfth Street, Third Floor
       Philadelphia, PA 19107
       Counsel for Appellees

OPINION OF THE COURT

BRIGHT, Circuit Judge.

This case presents the question whether under the Prison
Litigation Reform Act an attorney who has successfully
represented a prisoner in a civil rights action is entitled to
attorney fees for time spent on the fee petition. This opinion
appears to be the first in the United States Courts of
Appeal to address this important question which arises
under the Prison Litigation Reform Act ("PLRA"),
particularly S 803d, 42 U.S.C. S 1997e(d). In addition,
appellant Hernandez seeks an increase in the hourly rate
for the fees. We reverse on the issue of "fees on fees" and
otherwise affirm.

I. BACKGROUND

On November 11, 1994, Sergio Hernandez, an inmate at
the State Correctional Institute at Frackville, Pennsylvania,
suffered serious injuries when his cellmate stabbed him
multiple times with a razor. Hernandez had warned several
officers of the Pennsylvania Department of Corrections of
his danger prior to the attack, but the officers failed to take
reasonable steps to protect him from his cellmate.
Hernandez filed suit on September 16, 1996, seeking
damages for violation of his Eighth Amendment rights.

                               2
The district court held a bench trial on May 27, 1997.
The court granted judgment as a matter of law under Rule
50 of the Federal Rules of Civil Procedure against several of
the defendants. On May 30, 1997, after announcing its
findings of fact and conclusions of law, the court entered a
$17,500 judgment against defendant Sergeant Andrew
Kalinowski. Angus R. Love ("Love") represented Hernandez
throughout the proceedings. Love initially informally
requested costs and attorney's fees from Kalinowski, but
Kalinowski rejected the request. Hernandez then formally
moved the district court to award attorney's fees and costs,
requesting a total of $22,680.90.

The district court determined that Love was entitled to
attorney's fees under the traditional auspices of 42 U.S.C.
S 1988 as a "prevailing party." See Texas State Teachers
Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791-92
(1989). The district court noted, however, that the PLRA
limits fee awards in prisoner cases to those instances where
"the fee was directly and reasonably incurred in proving an
actual violation of the plaintiff 's rights . . .." 42 U.S.C.
S 1997e(d)(1)(A). Thus, the district court examined Love's fee
request and applied the lodestar analysis to calculate the
amount of "direct and reasonable" fees. See Rode v.
Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990).
Specifically, the district court multiplied (1) the number of
hours reasonably expended on the action by (2) the
reasonable hourly rates to reach the "lodestar." See id.

First, the district court determined the applicable
reasonable hourly rates by applying the statutory scheme
provided under 42 U.S.C. S 1997e(d)(3), to reach $67.50 for
Love's out-of-court services and $97.50 for his in-court
services. Second, the district court calculated the
reasonable time expended. The court concluded that an
across-the-board reduction of 10% applied to Love's fees
because Hernandez did not succeed on his claims against
two of the defendants. See Hensley v. Eckerhart, 461 U.S.
424, 440 (1983) (noting that an overall reduction in the fee
is appropriate where the plaintiff achieved "only limited
success"). Furthermore, the district court completely denied
Love's fees for time spent preparing the fee petition
concluding that the PLRA did not authorize fees for
preparing a fee petition.

                               3
The court ultimately awarded Hernandez a total of
$10,131.64 to pay Love's fees and $554.00 to pay costs.
Hernandez appeals this award, challenging both the
applicable hourly rates and the court's denial of fees
relating to the fee petition. We give plenary review to the
statutory construction of the PLRA. Chrysler Credit Corp. v.
First Nat'l Bank & Trust Co., 746 F.2d 200, 202 (3d Cir.
1984).

Hernandez argues the district court erred when it denied
him fees for the time Love spent preparing the fee petition.
Generally, under the Civil Rights Attorney's Fees Awards
Act of 1976 ("CRAFAA"), 42 U.S.C. S 1988, fees for
preparing a motion requesting costs and fees, or "fees on
fees," are recoverable. Hernandez v. George, 793 F.2d 264,
269 (10th Cir. 1986). The purpose of the CRAFAA is to
ensure effective access to the judicial process for persons
with civil rights claims, and to encourage litigation to
enforce the provisions of the civil rights acts and
constitutional civil rights provisions. Thus, courts
consistently have interpreted fee shifting statutes, including
the CRAFAA, to provide for reasonable fees for all time
spent in the vindication of statutory or constitutional
rights, including fees related to the preparation and
litigation of motions for attorney's fees under the Act.1

The district court concluded, however, that the PLRA
does not explicitly authorize an award for "fees on fees."
The relevant portion of the PLRA reads:

       (1) In any action brought by a prisoner who is
       confined to any jail, prison, or other correctional
       facility, in which attorney's fees are authorized under
       section 1988 of this title, such fees shall not be
       awarded, except to the extent that --
_________________________________________________________________

1. See, e.g., Student Pub. Interest Research Group of New Jersey v. AT&T
Bell Labs., 842 F.2d 1436, 1455 (3d Cir. 1988); Prandini v. Nat'l Tea Co.,
585 F.2d 47, 53 (3d Cir. 1978); Glass v. Pfeffer, 849 F.2d 1261, 1266
(10th Cir. 1988); Hernandez v. George, 793 F.2d at 269; Clark v. City of
Los Angeles, 803 F.2d 987, 992 (9th Cir. 1986); Lund v. Affleck, 587
F.2d 75, 77 (1st Cir. 1978); Souza v. Southworth, 564 F.2d 609, 614 (1st
Cir. 1977).

                                4
       (A) The fee was directly and reasonably incurred in
       proving an actual violation of the plaintiff's rights
       protected by a statute pursuant to which a fee may
       be awarded under section 1988 of this title; and

       (B)(I) the amount of the fee is proportionately re lated
       to the court ordered relief for the violation; or

       (ii) the fee was directly and reasonably incurred in
       enforcing the relief ordered for the violation.

PLRA S 803(d), 42 U.S.C. S 1997e(d). The district court
concluded that Congress failed to explicitly provide for fee
petition awards within the plain language of the PLRA and
therefore "fees on fees" are not recoverable. We reject this
interpretation.

II. DISCUSSION

A. Attorney's Fees for Time Spent Preparing the
Fee Petition

We first examine the language of the statute. Although
the phrase "fees on fees" appears nowhere within 42 U.S.C.
S 1997e(d)(1), the PLRA provides for fees which are "directly
and reasonably incurred in proving an actual violation of
the plaintiff's rights" and are either "proportionately related
to the court ordered relief for the violation; or . . . directly
and reasonably incurred in enforcing the relief ordered
. . . ." Thus, the key is determining if "fees on fees" are
included within the meaning of fees "directly and
reasonably incurred in proving an actual violation of the
plaintiff 's rights . . . ." See PLRAS 803(d), 42 U.S.C.
S 1997e(d)(1).

In our view, fees for time spent in preparing a fee petition
are included within the meaning of "fee[s] directly and
reasonably incurred in proving an actual violation .. . ."
Otherwise the attorney's fee to which he or she is entitled
by law is in fact diminished. For example, assume a
plaintiff succeeds on the merits of a civil rights claim and,
in doing so, incurs $10,000 in "direct and reasonable" costs
and attorney's fees. That fee represents the attorney's time
expended. Further assume that the plaintiff's attorney is
forced to spend an additional $2000 in time to compel the

                               5
defendant to pay the $10,000 costs and fees owed. If the
plaintiff is not allowed to recover the "fees on fees," the
plaintiff would not receive the $2000 to pay the attorney. In
the case of an impecunious plaintiff, as most prisoners are,
the end result would be that the attorney would in fact
receive a fee based on time that is less than that authorized
by law. To avoid this erosion of an award of attorney's fees,
courts have traditionally interpreted S 1988 to allow for
"fees on fees" to guarantee a full recovery of fees.

General rules of statutory construction support reading
the PLRA to provide for "fees on fees." First, Congress must
clearly express its intent to change a well-established
common law construction. Bauers v. Heisel, 361 F.2d 581,
587 (3d Cir. 1966) (en banc). As previously stated, courts
consistently have construed the Civil Rights Acts to provide
for "fees on fees" despite the absence of clear Congressional
directives within those Acts. See Commissioner, I.N.S. v.
Jean, 496 U.S. 154 (1990) (construing the Equal Access to
Justice Act to entitle successful plaintiffs to"fees on fees").
The language of 42 U.S.C. S 1988(b) provides for fees "[i]n
any action . . . to enforce a provision of section[ ] . . . 1983
. . . ." This language which has allowed for"fees on fees"
does not differ significantly from the language in the PLRA
authorizing fees for proving an actual violation. In passing
the PLRA, Congress knew that fee petitions are a necessary
predicate to a fee award and that the courts have
interpreted S 1988 to allow for reimbursement for fees for
the work done on fee petitions. If Congress did not intend
for attorneys to be fully compensated for their work on civil
rights claims for prisoners, Congress needed to explicitly
express an intent to change the established construction
to authorize the diminishment of actual fees by not
compensating attorneys for time (which to a lawyer is
money2) spent proving the right to attorney's fees.

Second, "fees on fees" must be included in 42 U.S.C.
S 1997e(d)(1) under another rule of statutory interpretation,
the whole act rule. The whole act rule directs that "[w]hen
_________________________________________________________________

2. Benjamin Franklin in advice to a young tradesman said, "Remember
time is money." Bartlett's Familiar Quotations 348 (Emily Morison Beck
ed., 15th ed. 1980).

                               6
`interpreting a statute, the court will not look merely to a
particular clause in which general words may be used, but
will take in connection with it the whole statute (or statutes
on the same subject) and the objects and policy of the law,
as indicated by its various provisions, and give to it such a
construction as will carry into execution the will of the
Legislature . . . .' " Kokoszka v. Belford, 417 U.S. 642, 650
(1974) (quoting Brown v. Duchesne, 19 How. 183, 194
(1857)). "Congress enacted PLRA with the principal purpose
of deterring frivolous prisoner litigation by instituting
economic costs for prisoners wishing to file civil claims."
Lyon v. Krol, 127 F.3d 763, 764 (8th Cir. 1997); see also
141 Cong. Rec. S14419 (daily ed. Sept. 27, 1995)
(statement of Sen. Abraham). At the same time, Congress
preserved the rights of prisoners with valid claims to have
access to an attorney and seek legal redress for meritorious
claims by including the provision for attorney fees. This
case was not frivolous. The result establishes that the
prisoner's complaint had substantial merit. Nothing in the
legislative history suggests that Congress intended to deter
meritorious claims. Thus, an interpretation allowing "fees
on fees" for meritorious claims serves Congress' intent.

If "fees on fees" are not allowed under the PLRA,
defendants will have an incentive to refuse to pay fees until
formally ordered by a court. Defendants would be
encouraged to create further litigation over fees that they
rightfully owe to plaintiffs, and parties would be
discouraged from settling such matters amongst
themselves. Thus, disallowing plaintiffs to collect "fees on
fees" would directly contravene the Congressional purpose
behind the PLRA of minimizing frivolous litigation, and
preserving judicial resources for meritorious claims. See
Hensley, 461 U.S. at 437 ("A request for attorney's fees
should not result in a second major litigation. Ideally, of
course, litigants will settle the amount of a fee."). Thus,
under the whole act rule, Congress must have intended to
entitle successful plaintiffs to receive "fees on fees."

Within the context generally of Civil Rights Acts awarding
"fees on fees," the language of the PLRA would seem to
provide for these types of fees also. In the ordinary civil
rights case, a prevailing plaintiff has a right to collect

                               7
attorney's fees and costs. The provisions for fees, for
example under S 1988, are not self-effectuating. Litigation
of fee petitions often becomes necessary to enforce that
right. Similarly in prisoner civil rights cases, in order to
prevent a defendant from effectively eroding the amount a
plaintiff and his or her attorney ultimately collect, and to
minimize unnecessary and frivolous litigation that may
arise over fee awards, S 1997e(d)(1) of the PLRA must be
interpreted to include "fees on fees."

B. Appropriate Hourly Rate

The district court correctly determined that the applicable
hourly rates are $97.50 for in-court work and $67.50 for
out-of-court work for attorney Love. According to 42 U.S.C.
S 1997e(d)(3), the "reasonable" hourly rate for prisoner civil
rights litigation cannot be "an hourly rate greater than 150
percent of the hourly rate established under section 3006A
of Title 18, for payment of court-appointed counsel." Id.
Section 3006A(d)(1) of Title 18 establishes rates of $60 per
hour for in-court time and $40 per hour for out-of-court
time "unless the Judicial Conference determines that a
higher rate of not in excess of $75 per hour is justified for
a circuit . . . ." The rate established in the Eastern District
of Pennsylvania is $65 per hour for in-court time and $45
per hour for out-of-court time for court-appointed counsel.
Thus, applying the 150% maximum, the appropriate rates
are $97.50 for Love's in-court services and $67.50 for
Love's out-of-court services.

Hernandez claims that Love should be reimbursed at a
rate of $187.50 based on the amount provided under 21
U.S.C. S 848(q)(10)(A) for court-appointed counsel in capital
cases.3 Hernandez argues that PLRA sets an hourly cap on
attorney's fees set out at 18 U.S.C. S 3006A and the most
logical reading of the statute would be to look at the highest
rate allowed under S 3006A. Hernandez contends that
S 3006A references a plan created by district courts and
_________________________________________________________________

3. Kalinowski argues that this argument should be rejected because
Hernandez did not raise the argument at the district court. We note that
this court ordinarily does not entertain issues raised for the first time
on
appeal. See Kneipp v. Tedder, 95 F.3d 1199, 1211 n.25 (3d Cir. 1996).
Nevertheless, we will decide this argument on its merits.

                               8
that 21 U.S.C. S 848 states that the plan can authorize
payments to attorneys who represent defendants in capital
cases in an amount exceeding that provided in S 3006A. We
reject Hernandez's argument. 18 U.S.C. S 3006A does not
cross-reference 21 U.S.C. S 848 and the statutes on their
face are independent of one another. The plain reading of
18 U.S.C. S 3006A(d)(1) establishes the hourly rate for
court-appointed attorneys in the Eastern District of
Pennsylvania, per adjustment by the United States Judicial
Conference, at $65 per hour for in-court time and $45 per
hour for out-of-court time.

Alternatively, Hernandez argues that the applicable rate
for Love's time should be $112.50 an hour. He argues that
the United States Judicial Conference recently adjusted the
rates in the Eastern District of Pennsylvania to $75 per
hour for both in- and out-of-court time, and applying the
150% limitation results in a rate of $112.50. We disagree
with Love. Due to federal budgetary constraints, that rate
was not yet implemented at any time during this litigation.
Thus, we conclude the rates of $65 and $45 remain in force
and apply in this case, and applying the 150% maximum,
the appropriate rates are $97.50 for in-court services and
$67.50 for out-of-court services.

III. CONCLUSION

For the foregoing reasons, we affirm the district court
with respect to the hourly rate it used to calculate Love's
reasonable fees. We reverse and remand to the district
court with instructions to award Hernandez costs and fees
for Love's time spent preparing and litigating the fee
petition, including the reasonable time spent to appeal this
issue.

                                9
COWEN, Circuit Judge, concurring in part, dissenting in
part.

I join in Part II.B of the majority's opinion, which
establishes the hourly rate for court-appointed attorneys in
the Eastern District of Pennsylvania during the time period
at issue in this case. Nonetheless, I am constrained to
dissent from Part II.A of the majority opinion since I believe
that attorney's fees and costs associated with the
preparation and litigation of a fee application are not
recoverable under the PLRA because they are not "directly
and reasonably incurred in proving an actual violation of
the plaintiff's rights . . . ." 42 U.S.C. S 1997e(d)(1)(A). I
would therefore affirm the district court's judgment in all
respects.

Title 42 U.S.C. S 1988(b) provides that in federal civil
rights actions "the court, in its discretion, may allow the
prevailing party, other than the United States, a reasonable
attorney's fee as part of the costs." Although this statute
does not explicitly authorize the recovery of attorney's fees
for time spent in preparing and litigating a fee petition, we
have consistently held that such fees are recoverable under
section 1988 and other similar fee-shifting provisions. See,
e.g., Student Pub. Interest Research Group of New Jersey v.
AT & T Bell Labs., 842 F.2d 1436, 1455 (3d Cir. 1988)
(Clean Water Act); David v. City of Scranton, 633 F.2d 676,
677 (3d Cir. 1980) (Section 1988); Prandini v. Nat'l Tea Co.,
585 F.2d 47, 53 (3d Cir. 1978) (Title VII). In Prandini, we
reasoned that such an award was justified because

       the time expended by attorneys in obtaining a
       reasonable fee is justifiably included in the attorney's
       fee application, and in the court's fee award. If an
       attorney is required to expend time litigating his fee
       claim, yet may not be compensated for that time, the
       attorney's effective rate for all the hours expended on
       the case will be correspondingly decreased. Recognizing
       this fact, attorneys may become wary about taking Title
       VII cases, civil rights cases, or other cases for which
       attorney's fees are statutorily authorized. Such a result
       would not comport with the purpose behind most
       statutory fee authorizations, Viz, the encouragement of
       attorneys to represent indigent clients and to act as

                               10
       private attorneys general in vindicating congressional
       policies.

585 F.2d at 53 (citations omitted).

However, the broad language of section 1988 must now
be read in conjunction with the PLRA, which took effect on
April 26, 1996. Consequently, in prisoner civil rights cases,
attorney's fees "shall not be awarded, except to the extent
that . . . the fee was directly and reasonably incurred in
proving an actual violation of the plaintiff's rights protected
by a statute pursuant to which a fee may be awarded under
section 1988 of this title . . . ." 42 U.S.C.S 1997e(d)(1)(A).

Contrary to the majority's holding, I believe that the
attorney's fees and costs associated with preparing and
litigating a fee petition are not "directly and reasonably
incurred in proving an actual violation of the plaintiff's
rights protected by a statute . . . ." Indeed, the Supreme
Court has repeatedly observed that attorney-fee
determinations are "collateral to the main cause of action
and uniquely separable from the cause of action to be
proved at trial." Landgraf v. USI Film Prods., 511 U.S. 244,
277 (1994) (internal quotation marks omitted); see also
Budinich v. Becton Dickinson & Co., 486 U.S. 196 (1988)
("[W]e think it indisputable that a claim for attorney's fees
is not part of the merits of the action to which the fees
pertain. Such an award does not remedy the injury giving
rise to the action . . . ."); White v. New Hampshire Dep't. of
Employment Sec., 455 U.S. 445, 451-52 (1982) ("Nor can
attorney's fees fairly be characterized as an element of
`relief ' indistinguishable from other elements. Unlike other
judicial relief, the attorney's fees allowed under S 1988 are
not compensation for the injury giving rise to the action.").
Thus, when Congress distinguished in the PLRA between
work on the merits and work on fees, it was following a
path already well-marked by the courts. Work on a fee
petition is not work done "in proving an actual violation of
. . . rights" within the meaning of section 1997e(d)(1)(A),
and the district court was correct to disallow any such fees.
I must respectfully dissent on this issue.

                               11
A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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