Armstrong v. Davis

318 F.3d 965

John ARMSTRONG; James Amauric; Richard Ponciano; Jack Swensen; Billy Beck; Judy Fendt; Walter Fratus; Gregory Sandoval; Darlene Madison; Peter A. Richardson; Steven Hill; David Rose; David Blessing; Elio Castro; Elmer Umbenhower; Raymond Hayes; Gene Horrocks; Kiah Mincey; Clifton Feathers; Willie Johnson; David Badillo; James Simmons; Flora Abrams; Joey Gough; Timothy Whisman, Plaintiffs-Appellees, v. Gray DAVIS, Governor of the State of California; Robert Presley, Secretary of the Youth and Adult Correctional Agency; James Nielsen, Chairman of the Board of Prison Terms; California Board of Prison Terms, Does 1-100, in their Individual and Official Capacity; Joseph Sandoval; James Gomez, Director Dept Corrections; Kyle McKinsey; Kevin Carruth; Marisela Montes, Deputy Director of the Parole and Community Services Division, Defendants-Appellants.

No. 01-15779.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 18, 2002.

Filed February 10, 2003.

Jessica N. Blonien and G. Michael German, Deputy Attorneys General of the State of California, San Francisco, CA, for the defendants-appellants.

Andrea G. Asaro and Michael Bien, Rosen, Bien & Asaro, LLP, for the plaintiffs-appellees.

Appeal from the United States District Court for the Northern District of California; Claudia Wilken, District Judge, Presiding. D.C. No. CV-94-02307-CW(PJH).

Before: REINHARDT, TASHIMA and BERZON, Circuit Judges.

REINHARDT, Circuit Judge:

Defendants, state officials responsible for the operation of the California Department of Corrections ("CDC") and the California Board of Prison Terms ("BPT"), appeal an award of attorney's fees to Plaintiffs, a class of present and future California state prisoners and parolees with disabilities, who prevailed in their action under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 ("ADA") and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 ("RA"). We affirm the decision of the district court.¹

Background

Plaintiffs brought this action in 1994 to challenge California's treatment of disabled inmates and parolees. In 1996 all defendants except the officials of the BPT stipulated that adequate emergency evacuation plans for disabled prisoners were lacking in some facilities, that a smaller range of vocational programs was available to disabled prisoners than to non-disabled prisoners, and that sentence reduction credits had been improperly denied to some disabled prisoners. Armstrong v. Wilson, 124 F.3d 1019, 1021 (9th Cir.1997). These defendants ("CDC defendants") asserted, however, in a summary judgment motion, that the ADA and RA did not apply to state prisoners, and that the defendant state officials were immune from liability under the Eleventh Amendment. The district court denied the motion, Armstrong v. Wilson, 942 F.Supp. 1252, 1264 (N.D.Cal.1996), and issued a remedial order and injunction. The CDC defendants appealed, and we affirmed, holding that "the ADA and RA apply to inmates and parolees in the state penal system and that this suit may proceed in federal court under the doctrine of Ex parte Young [209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908)]," which provides an exception to Eleventh Amendment immunity. Armstrong, 124 F.3d at 1026. Under the remedial order and injunction, the CDC defendants evaluate their programs and develop remedial plans, while Plaintiffs monitor Defendants' compliance.

The remedial order and injunction provides that Plaintiffs are the prevailing party and are entitled to attorney's fees, litigation expenses, and costs, for litigation as well as for monitoring for compliance. The procedure for collecting fees is set forth in a 1997 stipulation and order for periodic collection of attorney's fees, which was agreed upon by the parties. Disputes regarding the periodic fees are resolved through negotiation or, where negotiation fails, through a motion to compel.

The CDC defendants filed a petition for writ of certiorari, seeking review of our decision in Armstrong and our decision in a related case, Clark v. California Department of Corrections, 123 F.3d 1267 (9th Cir.1997). While the petition was pending, two other petitions were filed raising the issue whether the ADA applies to state prisoners. See Amos v. Md. Dep't of Pub. Safety, 126 F.3d 589 (4th Cir.1997) (holding ADA does not apply to state prisons), cert. granted, judgment vacated, case remanded by 524 U.S. 935, 118 S.Ct. 2339, 141 L.Ed.2d 710 (1998); Yeskey v. Penn. Dep't of Corr., 118 F.3d 168 (3d Cir.1997) (holding ADA does apply to state prisons), aff'd 524 U.S. 206, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998).

Counsel for the plaintiff in Yeskey asked the Prison Law Office, which was counsel for Plaintiffs in Armstrong, whether, if certiorari were granted in Yeskey, rather than in Armstrong, that Office would represent the Yeskey plaintiff before the United States Supreme Court. Because a Supreme Court decision on the application of the ADA to prison inmates would affect the Armstrong Plaintiffs with equal force regardless of which case the Court chose as its vehicle to address the issue, the Prison Law Office agreed to represent the Yeskey plaintiff in such circumstance.

The Supreme Court granted certiorari in Yeskey, and the Prison Law Office appeared on behalf of the Yeskey plaintiff. The Court then held that the ADA does apply to state prisoners, as Yeskey and Armstrong had both concluded. Yeskey, 524 U.S. at 213, 118 S.Ct. 1952. One week later the Court denied the petition for certiorari in Armstrong and Clark. Wilson v. Armstrong, 524 U.S. 937, 118 S.Ct. 2340, 141 L.Ed.2d 711 (1998). Thus, Plaintiffs' counsel successfully protected the Armstrong decision of this court by prevailing in Yeskey in the Supreme Court.

The BPT portion of the original case went to trial. During discovery, Plaintiffs deposed a number of BPT officials and one expert, and arranged for their own experts to inspect certain prison facilities and to conduct other types of investigation. Before trial, the BPT defendants filed two motions to dismiss, a motion for summary judgment, and a motion for continuance of trial. Shortly before trial, the district court permitted Plaintiffs to add a claim for due process violations under § 1983. After pre-trial motions were resolved, a ten-day bench trial was held. The district court then found the BPT liable for violations of the ADA, the RA, and the Due Process Clause of the Constitution. After further post-trial proceedings, the court issued a permanent injunction requiring the BPT to bring its policies and practices into compliance with the law. The BPT defendants appealed, and we affirmed the main elements of the district court's decision and injunction. Armstrong v. Davis, 275 F.3d 849, 879 (9th Cir.2001).

District Court's Award of Attorney's Fees

Defendants appeal from four orders by the district court awarding Plaintiffs fees and costs for litigation and for monitoring Defendants' compliance with the injunctions.

Order of March 19, 2001 Awarding Attorney's Fees and Costs Incurred in Yeskey

In October 1999, Plaintiffs sought attorney's fees from Defendants for the work performed in litigating Yeskey before the Supreme Court. Plaintiffs argued that their attorneys' work in Yeskey was reasonably necessary to further their interests in their litigation against the Armstrong Defendants. Defendants objected that they cannot be compelled to pay fees in a case that did not involve them.

The district judge granted Plaintiffs' motion in part. Relying primarily on Hasbrouck v. Texaco, Inc., 879 F.2d 632 (9th Cir.1989), in which we affirmed an award of attorney's fees in an antitrust suit for work done on an amicus brief before the Supreme Court in a separate case that did not involve the Hasbrouck defendants, the district court held that Plaintiffs could collect fees from the Armstrong Defendants for the amount of work that would have been necessary to file an amicus brief in Yeskey. Further briefing was ordered to establish the appropriate fees.

In response to the parameters set by the district court in the March 10, 2000 order, Plaintiffs lowered their fee request for the Yeskey litigation from somewhat over $335,000 to $258,568.13. Defendants then raised four objections to the request: 1) fees should be limited by a provision of the Prison Litigation Reform Act (PLRA) that limits attorney's and paralegal's fees in certain actions brought by prisoners, 42 U.S.C. § 1997e(d); 2) even if the PLRA limit does not apply to the ADA and the RA claims, it applies to the § 1983 claim, and for this reason the district court should apply the limit to one third of the claimed work; 3) the fees and costs exceed what would have been necessary to file an amicus brief in Yeskey; and 4) the hours claimed are excessive.

On March 19, 2001, the district court rejected Defendants' first three objections but agreed that the hours claimed were excessive. Accordingly, it awarded a reduced amount, $108,352.38. It is from this reduced amount that Defendants appeal.

Order of March 19, 2001 Awarding Fees and Expenses Incurred During the First Quarter of 2000 in the CDC Portion of the Case

This order arose from a motion to compel the CDC defendants to make the periodic payment for the first quarter of 2000. Defendants disputed the fees for the first quarter of 2000 on three grounds: 1) that the PLRA limit on attorney's and paralegal's fees should apply; 2) that the limit on expert fees of § 1988 should apply; and 3) that Plaintiffs' attorneys claimed excessively high rates. Plaintiffs moved to compel payment. The district court awarded the full amount requested by Plaintiffs, including interest.

Order of March 21, 2001 Awarding Fees and Expenses for Work Arising from the Proceedings Against the BPT

This order granted Plaintiffs' motion for attorney's fees arising from pre-judgment litigation and from monitoring of the BPT's compliance...