                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-13-1999

Collins v. Montgomery Cty Bd
Precedential or Non-Precedential:

Docket 98-1206




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Filed May 13, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-1206

MICHAEL T. COLLINS,

       Appellant

v.

MONTGOMERY COUNTY BOARD OF PRISON
INSPECTORS; JOSEPH WALSH, individually; JAMES A.
FREY, individually; EDWIN NEGRON, individually;
ALFRED RICCI, individually; MARK GRIFFITH,
individually; FRANK GRIFFITH, individually; DAVID
DOMBROSKI, individually, JULIO M. ALGARIN, IN HIS
OFFICIAL CAPACITY AND INDIVIDUALLY; DELORES
MARTIN, INDIVIDUALLY; LAWRENCE ROTH, IN HIS
OFFICIAL CAPACITY; UNITED STATES OF AMERICA

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 95-04220)
District Judge: Honorable Norma L. Shapiro

Argued November 17, 1998

BEFORE: BECKER, Chief Judge, GREENBERG,
Circuit Judge, and McLAUGHLIN,* District J udge

Reargued en banc April 23, 1999

BEFORE: BECKER, Chief Judge, and SLOVITER,
STAPLETON, MANSMANN, GREENBERG, SCIRICA,
NYGAARD, ALITO, ROTH, LEWIS, MCKEE, and RENDELL,
Circuit Judges
_________________________________________________________________

*Honorable Sean J. McLaughlin, Judge of the United States District
Court for the Western District of Pennsylvania, sitting by designation.
(Filed: May 13, 1999)

       David Richman (argued)
       Stephen G. Harvey
       Michelle Hart Yeary
       Pepper Hamilton LLP
       3000 Two Logan Square
       Eighteenth & Arch Streets
       Philadelphia, PA 19103

        Attorneys for Appellant

       Walter S. Jenkins (argued)
       Sweeney & Sheehan
       1515 Market Street, 19th Floor
       Philadelphia, PA 19102

        Attorneys for Appellees
        Montgomery County Board of
        Prison Inspectors, Joseph Walsh,
        James A. Frey, Edwin Negron,
        Alfred Ricci, Mark Griffith, Frank
        Griffith, David Dombroski, Julio M.
        Algarin, Delores Martin, and
        Lawrence Roth

       Frank W. Hunger
       Assistant Attorney General
       Michael R. Stiles
       United States Attorney
       Barbara L. Herwig
       Edward R. Cohen (argued)
       Attorneys, Appellate Staff
       Civil Division, Room 9014
       U.S. Department of Justice
       601 D. Street, N.W.
       Washington, D.C. 20530-0001

        Attorneys for Appellee
        United States of America1
_________________________________________________________________

1. Walter S. Jenkins argued before the panel but not the court en banc.
David Richman and Edward R. Cohen argued before both the panel and
the court en banc.

                                  2
OPINION OF THE COURT

GREENBERG, Circuit Judge:

I. BACKGROUND

This matter is before this court on an appeal from an
order entered February 17, 1998, in the United States
District Court for the Eastern District of Pennsylvania. In
1995, appellant Michael Collins brought this action under
42 U.S.C. S 1983 alleging that the defendants violated his
constitutional rights while he was incarcerated in the
Montgomery County Correctional Facility in Montgomery
County, Pennsylvania. The court granted Collins leave to
proceed in forma pauperis on July 26, 1995, and on
November 17, 1995, Collins moved for appointment of
counsel. Upon request of the district court, the firm of
Pepper, Hamilton & Scheetz agreed to represent Collins in
pursuing several of his claims. The district court made this
appointment on January 31, 1996.

On April 26, 1996, approximately three months after
Pepper, Hamilton & Scheetz agreed to represent Collins and
less than three months after the district court made the
appointment, the Prison Litigation Reform Act of 1995
("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321 (1996),
became effective. The PLRA significantly limits the
attorney's fees that a court may award a prisoner
recovering a monetary judgment in a civil rights action by
placing a cap both on an attorney's maximum hourly rate
and on the total amount of attorney's fees recoverable from
a defendant. Moreover, the PLRA requires that a portion of
a monetary judgment recovered by a plaintiff be applied to
satisfy attorney's fees. See 42 U.S.C. S 1997e(d).

Collins' action was tried in December 1996, after the
effective date of the PLRA, before a jury that returned a
verdict against two of the ten defendants and awarded
Collins compensatory damages of $15,000 and punitive
damages of $5,000 on a claim arising out of an attack on
him by a guard dog. As a partially successful civil rights

                                3
litigant under 42 U.S.C. S 1983, Collins moved for an award
of attorney's fees of $80,122.75 pursuant to 42 U.S.C.
S 1988.2 Collins recognized the possible effect of the PLRA
on his application but raised an equal protection challenge
to the Act. Subsequently, on July 11, 1997, the court
permitted the United States to intervene under 28 U.S.C.
S 2403 to defend the constitutionality of the PLRA.

The court in an opinion dated January 9, 1998, held that
Collins' application for attorney's fees for services performed
after the PLRA became effective on April 26, 1996, was
subject to the PLRA's attorney's fees limitations. The court,
however, in a determination not challenged on this appeal,
held that Collins was entitled to an award of attorney's fees
for pre-PLRA legal services without regard for the Act's
limitations. It accordingly directed Collins to submit a
revised fee petition conforming with the PLRA for the time
Pepper, Hamilton & Scheetz spent both in and out of court
after April 26, 1996. Moreover, the court upheld the
constitutionality of the attorney's fees provisions of the
PLRA.

On January 26, 1998, Collins filed a revised fee petition
that sought an award of $7,789.75 without regard for the
PLRA limitations for services before April 26, 1996, but
which reduced his request for services performed thereafter
from $72,333 to $30,000 in compliance with the PLRA.
Collins calculated this post-PLRA figure as $30,025.30 in
gross fees, based on the applicable hourly rate, reduced by
$25.50 in accordance with the PLRA limitations. The
defendants raised no issue with respect to mathematical
calculations in this revised petition with respect to services
either before or after the enactment of the PLRA, and the
district court granted this revised fee petition by order
entered on February 17, 1998. The court at that time
divided the responsibility for the attorney's fees subject to
the PLRA on the basis of 97.5% or $29,250 to the
defendants and 2.5% or $750 to Collins. Collinsfiled a
timely notice of appeal from this fee award on March 13,
1998.3 The defendants have not cross-appealed and
_________________________________________________________________

2. He also moved for costs but the parties raise no issue regarding costs
on this appeal.

3. The defendants (not including the United States) contend that Collins'
appeal is untimely because he filed it more than 30 days after the

                               4
consequently they acquiesce in the district court's
allowance of fees for pre-PLRA services without regard for
the Act's limitations. The district court had jurisdiction
under 28 U.S.C. S S 1331, 1343(a), and we have jurisdiction
under 28 U.S.C. S 1291. Following argument before the
original panel, the full court voted that the case be
considered en banc, and the parties thereafter reargued the
case before the en banc court. See Third Circuit Internal
Operating Procedure 9.4.

II. DISCUSSION

On this appeal, we are asked to answer two questions: (1)
whether a court should apply the PLRA's attorney's fee
limitation provisions to prisoner civil rights cases pending
at the time of its enactment and, if so, (2) whether the
PLRA's attorney's fee provisions violate the equal protection
of the law guarantee inherent in the Fifth Amendment of
the United States Constitution.4 Because these issues
present questions of law, our review is plenary.
_________________________________________________________________

district court's January 9, 1998 order. As we have explained, attorney's
fee awards are not appealable until the court determines their amount.
See Government Guar. Fund of the Republic of Finland v. Hyatt Corp., 95
F.3d 291, 308 (3d Cir. 1996). Accordingly, because Collins filed his
notice of appeal less than 30 days after entry of the district court's
February 17, 1998 order awarding a quantified amount of attorney fees,
his appeal is timely.

4. The defendants (other than the United States) argue that because
Collins cashed his check for attorney's fees, which included an accord
and satisfaction notation, he has waived any right to appeal the district
court's fee award. It is well settled, however, that where a judgment is
appealed on the ground that the damages awarded are inadequate,
acceptance of payment of the amount of the judgment, standing alone,
does not amount to an accord and satisfaction of the entire claim. See
United States v. Hougham, 364 U.S. 310, 312, 81 S.Ct. 13, 16 (1960).
The defendants knew that Collins was unsatisfied with his fee award;
Collins filed and served his notice of appeal prior to cashing his check.
In addition, the defendants do not contend that they sent the check
pursuant to any settlement negotiations or agreement. In these
circumstances, Collins has not waived his right to appeal by cashing his
check.

                               5
A. Retroactivity Questions

The PLRA's attorney's fee limitation provisions are found
at 42 U.S.C. S 1997e(d), which provides in relevant part:

       (d) Attorney's Fees

        (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
       [42 U.S.C. S 1988], such fees   shall not be awarded,
       except to the extent that--

         (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 [42 U.S.C. S 1988]; and

         (B)(i) the amount of the fee is proportionately
       related 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.

        (2) Whenever a monetary judgment is awarded in an
       action described in paragraph (1), a portion of the
       judgment (not to exceed 25 percent) shall be applied to
       satisfy the amount of attorney's fees awarded against
       the defendant. If the award of attorney's fees is not
       greater than 150 percent of the judgment, the excess
       shall be paid by the defendant.

        (3) No award of attorney's fees in an action described
       in paragraph (1) shall be based on an hourly rate
       greater than 150 percent of the hourly rate established
       under section 3006A of Title 18[, the Criminal Justice
       Act,] for payment of court-appointed counsel . . . .

These PLRA attorney's fee limitation provisions raise
three retroactivity questions here. With respect to
consideration of compensation based on the time a
plaintiff 's attorney has expended on the case, the PLRA
limits attorney's fees to an hourly rate not greater than
150% of the hourly rate for court-appointed counsel
established under the Criminal Justice Act in the
applicable district. In this case, the hourly rates allowed on
the basis of 150% of the Criminal Justice Act rates were

                               6
$97.50 for court time and $67.50 for time out of court. As
we have indicated, however, the court applied the
limitations only to services after the effective date of the
PLRA, and the defendants do not contend that the
limitations should have been applied to earlier services.
Collins contends, however, that the hourly rate provisions
should not be applied at all in this action as hefiled it
before the enactment of the PLRA.

Another limitation is predicated on the amount of the
recovery and provides that the fees awarded cannot exceed
150% of the judgment. In this case, as the judgment was
for $20,000, the district court capped the fee at $30,000. In
this regard, we point out that the defendants do not
contend that the fees awarded Collins' attorneys for pre-
PLRA services should count against the $30,000 cap and
thus the district court applied the cap only against the fees
for post-PLRA services. Inasmuch as the fees for post-PLRA
services calculated on the basis of the hourly rate limitation
was $30,025.30, the capping provision reduced the
attorney's fees by the nominal amount of $25.30 to
$30,000. Collins nevertheless contends that the cap should
not be applied in this case in any degree as hefiled it
before the enactment of the PLRA.

The third provision is a fee limitation only in the sense
that it places responsibility for the fees on the plaintiff by
requiring that a portion of the judgment (not to exceed
25%) be applied to satisfy the award of attorney's fees. Here
the district court allotted 2.5% of the responsibility for the
fee to Collins.5 Collins contends that no portion of his
judgment should have been applied to the attorney's fees.

Congress did not clearly define the temporal reach of any
of the three limitation provisions so we must consider
_________________________________________________________________

5. Conceivably, depending upon the amount of the judgment and of the
attorney's fees awarded, the plaintiff could be responsible for all of the
fees. We point out that there might be some difficult questions raised in
a case in which a prisoner obtains extensive and important equitable
relief and a modest award of damages. Perhaps in such a case an
attorney's fee would not be limited by the cap in 42 U.S.C.
S 1997(e)(d)(2). We, however, leave that question to another day as
Collins recovered only monetary damages.

                               7
whether as applied here they have a retroactive effect. See
Landgraf v. USI Film Prods., 511 U.S. 244, 280, 114 S.Ct.
1483, 1505 (1994). The Court of Appeals for the District of
Columbia Circuit in Inmates of D.C. Jail v. Jackson, 158
F.3d 1357 (D.C. Cir. 1998), recently addressed this issue in
part. The court concluded that it would join the Court of
Appeals for the Eighth Circuit in Williams v. Brimeyer, 122
F.3d 1093, 1094 (8th Cir. 1997), "in holding that
retroactivity concerns are not implicated when the statute
is applied to work performed after April 26, 1996, the date
of passage of the PLRA." Inmates of D.C. Jail, 158 F.3d at
1360. The court went on to explain:

        When it is applied to work performed after the
       effective date of the Act, the PLRA raises none of the
       retroactivity concerns that require the analysis used by
       the district court because the statute creates present
       and future effects on present and future conduct, and
       has no effect on past conduct. Compare [Jensen v.
       Clarke, 94 F.3d 1191, 1203 (8th Cir. 1996)] (holding
       that the PLRA did not apply to pre-Act work) with
       Williams, 122 F.3d at 1094 (holding that as applied to
       work performed after the passage of the Act, there is no
       retroactivity). The fees at issue were earned after the
       PLRA passed. The PLRA does not in this case upset
       vested interests because no right to a fee existed until
       the work was done. Because we find no retroactive
       effect, we need not consider the Supreme Court's
       extensive analysis of when to permit retroactive
       application. See Landgraf, 511 U.S. 244; [Lindh v.
       Murphy, 521 U.S. 320, 117 S.Ct. 2059 (1997)]. As the
       Supreme Court stated in Landgraf, normally a court is
       to apply the law in effect at the time it renders its
       decision. 511 U.S. at 264 (quoting Bradley v. School
       Bd. of Richmond, 416 U.S. 696, 711, 94 S.Ct. 2006, 40
       L.Ed.2d 476 (1974)).

        In Landgraf, the Supreme Court noted that it has
       adopted a functional definition of retroactivity. See id.
       at 268-69 & n.23. In Miller v. Florida, it stated that [a]
       law is retrospective if it changes the legal consequences
       of acts completed before its effective date. 482 U.S.
       423, 430, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987) . . . .

                               8
       To determine if a statute has retroactive effect, the
       court must decide whether it would impair rights a
       party possessed when he acted, increase a party's
       liability for past conduct, or impose new duties with
       respect to transactions already completed. Landgraf,
       511 U.S. at 280, 114 S.Ct. 1483. In determining
       whether the statute has retroactive effect, the court
       should consider fair notice, reasonable reliance, and
       settled expectations. Id. at 270, 114 S.Ct. 1483. In this
       case, the work at issue was not done until after the
       passage of the Act. The attorneys did not possess a
       right to payment until they performed the work for
       which the fees were awarded, and thus had no settled
       expectations. Simply put, as applied in this case, the
       PLRA does not impair rights or upset expectations that
       did not exist prior to its passage, and could not exist
       after its passage. Because we hold only that the fee
       limitations apply to work performed after the passage
       of the Act, there is no need to continue the retroactivity
       analysis.

Inmates of D.C. Jail, 158 F.3d at 1360-61 (internal
quotation marks omitted). Thus, the court in Inmates of
D.C. Jail held "that applying the fee-capping provisions of
[42 U.S.C. S 1997e(d) ] to work performed after April 26,
1996, does not implicate retroactivity concerns." Id. at
1361.

We agree with the foregoing analysis, and thus we follow
it.6 While Inmates of D.C. Jail was not concerned with the
limitation provision based on the size of the judgment, that
provision raises no additional retroactivity problems here as
the district court awarded Collins fees for pre-PLRA services
on an hourly basis without regard for any of the PLRA's
limitations. Thus, we hold that the attorney's fees limitation
provisions of the PLRA predicated on hourly rates and the
_________________________________________________________________

6. We are aware of but do not follow Hadix v. Johnson, 143 F.3d 246 (6th
Cir.), cert. granted, 119 S.Ct. 508 (1998), which reached a contrary
result. We have no reason to express an opinion on whether the PLRA
limitations could be applied to cap fees for services performed before its
effective date as the defendants do not contend that it should be so
applied.

                               9
amount of the judgment simply do not have retroactive
effect, at least when, as here, a court applies them solely to
limit fees awarded for services performed after the effective
date of the Act based on a judgment entered after that date.
See also Madrid v. Gomez, 150 F.3d 1030, 1039 (9th Cir.
1998).7

We, however, face a question not involved in Inmates of
D.C. Jail, namely whether the PLRA provision that requires
application of a portion of the judgment to payment of
attorney's fees has a retroactive effect. See Mathews v.
Kidder, Peabody & Co., 161 F.3d 156, 159-60 (3d Cir.
1998), cert. denied, 1999 WL 86955 (Apr. 19, 1999) (No. 98-
1319). The Supreme Court in Landgraf indicated that to
determine whether a statute has retroactive effect a court
must decide, inter alia, whether "it would impair rights a
party possessed when he acted." Landgraf, 511 U.S. at 280,
114 S.Ct. at 1505.

Here the application of a portion of the judgment to the
attorney's fees does have a retroactive effect because under
42 U.S.C. S 1988 when Collins brought this action he could
have anticipated applying to the court for an award of all of
his reasonable attorney's fees. While undoubtedly even
before the enactment of the PLRA various factors might
have limited the amount of the award, see Washington v.
Philadelphia County Ct. of Common Pleas, 89 F.3d 1031 (3d
Cir. 1996), when Collins brought this action and then
applied for the appointment of counsel prior to the PLRA's
enactment, he had no reason to believe that the court
would order that a portion of his judgment, if he obtained
one, would be used to satisfy the attorney's fees that the
court awarded. Moreover, the various factors that could
have led a court before enactment of the PLRA to reduce a
_________________________________________________________________

7. Our result is not inconsistent with our opinion in Gibbs v. Ryan, 160
F.3d 160 (3d Cir. 1998), in which we held that the three strikes
provision of the PLRA, 28 U.S.C. S 1915(g), did not permit the district
court to revoke an order granting in forma pauperis status entered prior
to the effective date of the PLRA. In Gibbs we pointed out that the three
strikes provision limited a prisoner's right to "bring a civil action or
appeal a judgment." 160 F.3d at 162. Obviously, in Gibbs the prisoner
already had brought his action before the enactment of the PLRA. In this
case the fees were awarded after the enactment of the PLRA.

                               10
fee application continue to be applicable after its
enactment. Thus, we see no escape from the conclusion
that the PLRA has a retroactive effect in this case to the
extent that it requires that a portion of a judgment be
applied to pay attorney's fees.

The PLRA does not indicate whether 42 U.S.C. S 1997e(d)
should be applied retroactively, and we find no clear
congressional intent from any other source to apply the
statute retroactively. In these circumstances, we will apply
the judicial default rule recognized in Landgraf that when
Congress does not state its intent with respect to
retroactivity a statute with a retroactive effect will be
applied prospectively. See Landgraf, 511 U.S. at 280, S.Ct.
at 1505; see also Lindh v. Murphy, 117 S.Ct. 2059, 2062
(1997); Mathews, 161 F.3d at 159-60. Consequently, we
will modify the order of February 17, 1998, to the extent
that it applied a portion of the judgment to satisfy
attorney's fees by eliminating that provision.

B. Constitutional Questions

Collins argues that the PLRA's attorney's fee limitation
provisions violate equal protection of the law by
withdrawing from prisoners but not other plaintiffs the
right under 42 U.S.C. S 1988 to an award of reasonable
attorney's fees upon prevailing in a civil rights action.
Collins contends that by "virtually eliminating the potential
for a prisoner's recovery of reasonable fees, the Act severely
impairs the ability of prisoners to obtain counsel without
similarly affecting the ability of non-prisoners."

In this case we are concerned only with the
constitutionality of the attorney's fee limitation provisions
limiting the attorney's fees to 150% of the judgment and
limiting the hourly rates to 150% of the hourly rates for
court-appointed counsel under the Criminal Justice Act in
the applicable district. Obviously, we do not face any
constitutional question with respect to application of a
portion of the judgment to satisfaction of the attorney's fees
as we have eliminated that application in this case on a
nonconstitutional basis.

We have divided equally on the question of whether the
limitation of the fees to 150% of the judgment is

                                11
constitutional and consequently we will affirm the order of
the district court to the extent that it upheld that provision.
This disposition renders the constitutional challenge to the
hourly rate limitation provision moot as the hourly rate
limitation standing alone would allow Collins $30,025.30 in
fees, a sum exceeding the $30,000 cap predicated on 150%
of the judgment. Consequently, an invalidation of the
hourly rate limitation could not enhance the fees allowed
for no matter what the hourly rate allowed for Collins'
attorneys' services the fee cannot exceed $30,000 for post-
PLRA services. Therefore, we will not decide whether the
hourly rate limitation violates a prisoner's rights to equal
protection of the law.

III. CONCLUSION

For the foregoing reasons we will modify the order of
February 17, 1998, to the extent that it allocated $750 of
the attorney's fee to Collins and will remand the case to the
district court to enter an amended order reflecting our
determination. Thus, the defendants against whom the
monetary damages judgment was entered will be
responsible for the entire $30,000 fee. We otherwise will
affirm the order of February 17, 1998. The parties will bear
their own costs on this appeal.

A True Copy:
Teste:

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

                               12
