08-4245-pr, 08-4300-pr Perez v. W estchester County Dep’t of Corr.
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
4 August Term, 2008
5 (Argued: July 10, 2009 Decided: November 19, 2009)
6 Docket No. 08-4245-pr, 08-4300-pr
7 HENRY PEREZ, SHEDRET WHITEHEAD, JULIO ROSA, CARMELO GONZALEZ,
8 Plaintiffs-Appellees-Cross-Appellants,
9 -v.- 10 11 WESTCHESTER COUNTY DEPARTMENT OF CORRECTIONS, as a county agency, 12 ROCCO POZZI, individually and as the commissioner of the Westchester County Department of 13 Corrections, ANTHONY AMICUCCI, individually and as the Senior Administrator of the 14 Westchester County Jail, CAPTAIN ORLANDO, individually and as facility grievance 15 coordinator of the Westchester County Jail,
16 Defendants-Appellants-Cross-Appellees.
17 Before: CALABRESI and LIVINGSTON, Circuit Judges, and KORMAN, District Judge.*
18 Appeal and cross-appeal from a judgment of the United States District Court for the
19 Southern District of New York (Berman, Judge). The District Court held (1) that Plaintiffs were
* The Honorable Edward R. Korman, Senior Judge of the United States District Court for the Eastern District of New York, sitting by designation.
1 1 “prevailing parties” under Buckhannon Board & Care Home, Inc. v. West Virginia Department of
2 Health & Human Resources, 532 U.S. 598 (2001), and thus eligible for fees pursuant to 42
3 U.S.C. § 1988, and (2) that the resulting award was subject to the fee cap of the Prison Litigation
4 Reform Act (PLRA), 42 U.S.C. § 1997e(d). We hold (1) that Plaintiffs are prevailing parties, as
5 they achieved a material alteration in the legal relationship between the parties, and the so-
6 ordered settlement bore judicial imprimatur, and (2) that the PLRA’s fee cap applies even though
7 some plaintiffs were released from prison after the filing of the suit but before the successful
8 resolution of the litigation. We also find that the District Court did not abuse its discretion in
9 determining the fee award. Accordingly, we AFFIRM the judgment of the District Court, and
10 REMAND for an award of fees in connection with this appeal.
11 RICHARD COHEN (Donia F. Sawwan, Samantha H. 12 Evans, Kathleen M. Aiello, Matthew Bettinger, of counsel), 13 Fox Rothschild LLP, New York, N.Y., for Plaintiffs- 14 Appellees-Cross-Appellants.
15 MARY LYNN NICOLAS and MARTIN G. GLEESON, 16 Associate County Attorneys (Stacey Dolgin-Kmetz, Chief 17 Deputy County Attorney, of counsel), for Charlene M. 18 Indelicato, Westchester County Attorney, for Defendants- 19 Appellants-Cross-Appellees.
20 CALABRESI, Circuit Judge:
21 Plaintiffs, a group of practicing Muslims who are or were inmates at the Westchester
22 County Jail, sued the Westchester County Department of Corrections (the “County”) and three of
23 its employees (collectively, “Defendants”) for their refusal to provide Halal meat to Muslim
2 1 inmates, allegedly in violation of the First, Eighth, and Fourteenth Amendments. Prior to the
2 initiation of Plaintiffs’ suits, Defendants served Halal meat to Muslim inmates only twice a year;
3 by contrast, they provided Kosher meat to Jewish inmates four to five times a week. Although
4 Defendants initially rebuffed Plaintiffs’ demand that Muslim inmates be given Halal or Kosher
5 meat1 with the same frequency as Jewish inmates, they ultimately agreed to do so in exchange for
6 the dismissal of the lawsuits. The parties memorialized this agreement in an “Order of
7 Settlement, Release and Stipulation of Discontinuance” (the “Order of Settlement”), which the
8 District Court (Berman, Judge) entered on March 12, 2008. Subsequently, the District Court
9 granted Plaintiffs’ motion for attorneys’ fees.
10 Defendants appealed from the award of attorneys’ fees, claiming that Plaintiffs were not
11 “prevailing parties” under Buckhannon Board & Care Home, Inc. v. West Virginia Department of
12 Health & Human Resources, 532 U.S. 598 (2001), and hence were not entitled to attorneys’ fees,
13 and that, alternatively, the District Court abused its discretion in determining the amount of fees
14 to be awarded. Plaintiffs cross-appealed, claiming that the District Court erred in applying the
15 fee cap of the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(d), in this case, because
16 the Order of Settlement expressly allowed Plaintiffs to move for attorneys’ fees and
17 because—they asserted—the fee cap does not apply to suits brought by prisoners who are
18 released subsequent to the filing of a suit. We reject all three of these claims, and AFFIRM the
19 judgment of the District Court in its entirety. We also REMAND the matter to the District Court
20 to consider Plaintiffs’ request for fees accrued in connection with this appeal.
1 Kosher meat is prepared in a way that satisfies all the requirements of Halal meat. Hence, Kosher meat is Halal, even though Halal meat is not necessarily Kosher.
3 1 I. Background
2 A. The Plaintiffs’ Allegations
3 Plaintiffs alleged that for over twenty years, the County violated the constitutional rights
4 of Muslim inmates by serving them meat that was “Haram” (in violation of their beliefs) as
5 opposed to “Halal” (which is consistent with their beliefs). While the County ostensibly
6 provided a “Muslim diet tray,” it often included Haram meat and was only occasionally
7 consistent with Muslim dietary practices. As the County’s Supervisor of Food Services swore in
8 an affidavit, the County’s food vendor did not “serve halal meat in any of the jail facilities,”
9 although Muslim inmates did receive “halal meat on two Muslim holidays during the year.” By
10 contrast, the County accommodated Jewish inmates’ religious beliefs by serving them Kosher
11 meat approximately four or five times a week. While the Kosher meat prepared regularly for
12 Jewish inmates was Halal and thus would have satisfied the Muslim inmates’ restrictions, the
13 County refused to include it on the Muslim diet tray.
14 These practices persisted despite years of protests and grievances by Muslim inmates and
15 by the jail’s Muslim chaplain. In response to these complaints, Plaintiffs alleged, the County’s
16 systematic practice was either to “refuse an inmate’s request to pursue the grievance process, to
17 issue the same ‘stock response’, or to refuse to change . . . .” In denying inmate grievances, the
18 County stated plainly that “Halal is not provided in this facility at this time.”
19 Making these allegations, Plaintiff Henry Perez filed a Complaint pro se against the
20 County on September 20, 2005, and sought injunctive and monetary relief pursuant to 42 U.S.C.
21 § 1983. He alleged that the County’s conduct violated his First Amendment right to free exercise
22 of religion, his Eighth Amendment right to be free from cruel and unusual punishment, and his
4 1 Fourteenth Amendment right to due process and equal protection. Subsequently, twelve other
2 pro se inmates filed nearly identical complaints.2 By order dated November 29, 2005, the
3 District Court consolidated all actions filed prior to that date.
4 After filing their Complaints, ten of the plaintiffs retained Richard Cohen, then of the
5 firm Akabas & Cohen, as pro bono counsel. After Akabas & Cohen dissolved, Cohen joined
6 Fox Rothschild (“Fox”), and thereafter, each of the ten retained Fox as substitute pro bono
7 counsel.
8 B. The Defendants’ Initial Responses to the Lawsuits
9 In February 2006, Cohen met with representatives of the Defendants, who offered to
10 change the Muslim diet tray—but only to the extent of removing meat altogether and providing
11 substitutes such as peanut butter. On September 14, 2006, the County moved, inter alia, to
12 dismiss Plaintiffs’ Complaints. In their motion papers, Defendants asserted that:
13 Plaintiffs’ claims against County Defendants for relief pursuant to [§ 1983] for the 14 denial of halal meat and/or kosher food has [sic] 4been repeatedly rejected and 15 simply does not amount to a violation of a constitutional right. Plaintiffs have 16 been provided with a halal diet that is consistent with their nutritional needs and 17 religious beliefs. . . . Moreover, Plaintiffs’ equal protection claim clearly fails as 18 County Defendants provide both Muslim and Jewish inmates with nutritionally 19 adequate meals that conform to their respective faith’s requirements.3
20 The County also argued that Plaintiffs failed to exhaust administrative remedies and failed to
21 demonstrate any facts that amounted to a constitutional violation, and that Defendants were in
2 The thirteen plaintiffs are Henry Perez, Carmelo Gonzalez, Julio Rosa, Shedret W hitehead, Tuere Barnes, Anuedy Vincente, Stephen Morgan, Kenneth W ilson, Robert Massa, Angel Torres, Richard Simpson, Khalid Barnes, and Yero Pack. One of the plaintiffs, Khalid Barnes, also included causes of action under the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb, et seq., and the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc, et seq.
3 Defendants submitted affidavits from the County’s Supervisor of Food Services for the facility, as noted above, and from an employee of its outside vendor. Both acknowledged that the facility’s food vendor did not serve any Halal meat.
5 1 any event entitled to qualified immunity. Plaintiffs opposed the motion and cross-moved for a
2 preliminary injunction directing the County (1) to provide either Halal or Kosher meat to Muslim
3 inmates with the same frequency as Kosher meat was served to Jewish inmates, and (2) to refrain
4 from putting Haram meat on the Muslim tray. In response to the preliminary injunction motion,
5 the County argued that (1) it had attempted to satisfy the concerns of Plaintiffs by serving them a
6 vegetarian diet; and (2) providing Plaintiffs with Kosher meals would be a significant financial
7 burden on the County since Kosher meals were more expensive than regular meals.
8 On April 30, 2007, the District Court granted in part and denied in part the County’s
9 motion to dismiss, and denied Plaintiffs’ cross-motion for a preliminary injunction without
10 prejudice. Perez v. Westchester County Dep’t of Corr., No. 05 Civ. 8120, 2007 U.S. Dist.
11 LEXIS 32638 (S.D.N.Y. Apr. 30, 2007). Specifically, the District Court dismissed the Plaintiffs’
12 Eighth Amendment claims, but denied the County’s motion as to the First and Fourteenth
13 Amendment claims. In reaching this decision, the District Court commented on the strength of
14 Plaintiffs’ claims, noting, for example, that “the heart of the matter is Plaintiffs’ (seemingly
15 unrefuted) allegation that Defendants refuse to offer Muslim inmates the same kosher meat
16 provided to Jewish prisoners,” and that Plaintiffs were “(relatively easily) able to surmount
17 Defendant’s motion [to dismiss the equal protection claims].”
18 As for the preliminary injunction, the District Court found that Plaintiffs had shown
19 irreparable injury and might succeed on the merits because they “may be able to show that there
20 is disparate treatment among Muslim and Jewish inmates.” But the District Court found that
21 disputed issues of fact existed regarding the alleged financial burden that serving Halal or Kosher
22 meat to Muslim inmates would place on the County. Because preliminary injunctions should not
6 1 be decided on the basis of affidavits when disputed issues of fact exist, the District Court found
2 that an evidentiary hearing was required. It therefore dismissed the preliminary injunction
3 motion without prejudice, explicitly allowing the Plaintiffs to reinstate their application “if and
4 when Plaintiffs request a hearing on the injunction and/or the merits.”
5 C. Settlement Negotiations and the “So-Ordered” Settlement Agreement
6 In its April 30 order, the District Court also directed the parties to “appear at a
7 scheduling/settlement conference with principals (or authority) before the Court” ten days later.
8 At the conference, Judge Berman actively urged settlement, and made it clear that he felt the law
9 was on Plaintiffs’ side. When the County offered to provide Halal meat to Muslim inmates once
10 a week and not provide any money in damages (an offer Plaintiffs’ counsel Cohen analogized to
11 allowing Rosa Parks to sit at the front of the bus on Mondays only), Judge Berman opined that,
12 from a settlement perspective, it didn’t sound “like much of a settlement to propose once a week
13 for 3 inmates to have kosher meals when . . . Jewish inmates receive kosher meals 4 or 5 times a
14 week.” The County commented that “it’s obvious that [Plaintiffs] are not going to accept any
15 form of settlement unless we give them Halal meat the same number of times that the Jewish
16 inmates get kosher meat,” to which Judge Berman responded, “Remind me again why that
17 shouldn’t be the case?” Judge Berman extensively probed the County’s arguments that providing
18 Halal meat as often as it provided Kosher meat would be either a cost problem or a security
19 threat, warning that the County’s estimated expense of $30,000 a year didn’t sound as if it
20 supported a “good faith argument” and making it clear that the County’s security argument
21 seemed no more plausible. At the close of the conference, Judge Berman set an unusually short
22 time frame for discovery and a trial date just five months away. He explained:
7 1 I am actually going to give you a little less time because the issues are very simple and I 2 think the basic issues are known. . . . [T]his couldn’t be more obvious and couldn’t be 3 more simple as to what is going on here and the question is whether these Muslim 4 inmates are entitled to be treated like the Jewish inmates. It’s really that simple. I am not 5 saying I know the answer to that question and even if I come up with an answer 6 somebody may think it’s wrong. But that is the whole story here. 7 8 So, frankly, I think we have been wasting a lot of time already because I would [have] 9 thought this was such an obvious case to be resolved . . . .
10 Judge Berman conducted another settlement conference on July 30, 2007, at which the
11 Defendants proposed that instead of offering Halal meat once a week, they would serve Halal
12 meat with the same frequency as Kosher meat to the Jewish inmates. Judge Berman commented
13 that “that’s where the law would bring you, but that’s another story,” and ordered Cohen to check
14 with the ten Plaintiffs who were no longer incarcerated to see if they would accept this relief or
15 wanted to pursue money damages.4 After the County expressed opposition to entering a consent
16 decree, Judge Berman acknowledged that “even the phrase consent decree is pejorative in some
17 contexts,” and discussed other ways to memorialize the agreement and guarantee to the Plaintiffs
18 that the County would comply with the settlement.
19 On March 12, 2008, the parties entered a “Settlement, Release, and Stipulation of
20 Discontinuance,” which recited the terms of the agreement. Pursuant to the agreement, the
21 County agreed to provide all present and future Muslim inmates of the Westchester County Jail
22 who request a Halal diet with Halal meat with the same frequency as Kosher meat is served to
23 Jewish inmates requesting the Kosher diet. The County made this change “in contemplation of
24 settling” the lawsuit and in consideration of Plaintiffs’ discontinuing their actions. The
25 settlement did not constitute an admission of liability. While the agreement expressly indicated
4 One plaintiff settled monetary damages with the County for $1000. This settlement was memorialized in a separate agreement that was “so-ordered” by the court.
8 1 that it was “not a consent decree,” the dismissal of the lawsuits only took effect “[u]pon the
2 Court’s approval and entry of this Stipulation and Order.” As for attorneys’ fees, the settlement
3 agreement provided that Plaintiffs expressly reserved the right to file for attorneys’ fees and that
4 the County had the right to oppose such a motion.
5 The District Court reviewed and revised the settlement agreement with the parties
6 present. Judge Berman made three changes to the document that the parties had presented to the
7 Court: First, he amended the caption of the document to reflect that it was an “Order of”
8 Settlement. Second, where the settlement agreement provided that Plaintiffs retained the right to
9 bring an action if the County failed to comply with the settlement and that Plaintiffs “are
10 permitted to request referral of those claims to Judge Richard Berman,” he added that “[t]his
11 Court retains discretion to accept any such case(s) as [may be] related.” Third, he instructed the
12 clerk to close the case, and “so-ordered” the settlement.
13 D. The District Court’s Judgment on Attorneys’ Fees
14 Following the settlement agreement, Plaintiffs’ counsel, Cohen, filed an application for
15 attorneys’ fees pursuant to 42 U.S.C. § 1988(b) in the amount of $202,056.50. Cohen first
16 argued that Plaintiffs were “prevailing parties” because the so-ordered settlement materially
17 altered the legal relationship between the parties and the settlement had sufficient judicial
18 imprimatur to warrant attorneys’ fees under § 1988(b). Second, he argued that the PLRA fee cap
19 should not apply, both because the Order of Settlement allowed the Plaintiffs to move for
20 attorneys’ fees outside the cap, and because the cap does not apply to former prisoners who are
21 no longer incarcerated. Third, he argued that the fees applied for were reasonable, particularly in
22 light of the fact that counsel was not seeking approximately $95,000 in (1) fees for legal services
9 1 performed before Cohen joined Fox, (2) costs, and (3) fees for filing the fee application (“fees on
2 fees”).
3 Defendants contested each of these arguments. First, they asserted (1) that Plaintiffs were
4 not “prevailing parties” because the County’s change of conduct was voluntary and the legal
5 relationship between the parties was not altered, and (2) that there was insufficient judicial
6 imprimatur because the District Court did not retain jurisdiction to enforce the settlement, the
7 settlement agreement was not a consent decree, and the District Court had closed the case. Next,
8 assuming that Plaintiffs were entitled to fees, the County argued that the PLRA fee cap should
9 apply, as it covers all lawsuits that are filed by a prisoner, not just those that are completed while
10 the plaintiffs are still incarcerated. Lastly, the County argued that the 743.5 hours that Fox
11 Rothschild claimed were excessive and unreasonable and that many of the fees sought were
12 redundant, duplicative, or otherwise unwarranted.
13 On July 22, 2008, the District Court awarded Fox fees in the amount of $99,658.48. The
14 Court held that Plaintiffs were “prevailing parties” because (1) the Order of Settlement
15 “materially altered the [parties’] legal relationship” and (2) there was “ample evidence” of
16 judicial imprimatur as the court denied the motion to dismiss, held several settlement
17 conferences, participated in an effort to resolve contested issues, and then reviewed, revised, and
18 so-ordered the settlement. The District Court found that the language of the PLRA cap, which
19 refers to “any action brought by a prisoner who is confined to any jail, prison, or other
20 correctional facility,” 42 U.S.C. § 1997e(d)(1), limited Fox’s fees because the Plaintiffs were
21 prisoners at the time of filing. Then, after reviewing the fee application, the Court held that the
22 number of hours billed was reasonable. Based on the fee cap, the District Court reduced the
10 1 requested hourly rates to $138 per hour for attorneys and $80 per hour for paralegals, and
2 awarded Fox $99,658.48.
3 E. Appeal
4 Defendants timely appealed, reasserting the arguments they made in their opposition to
5 Plaintiffs’ fee application. Plaintiffs cross-appealed, arguing that the District Court erred in
6 applying the PLRA fee cap.
7 II. Discussion
8 A. Standard of Review
9 Whether Plaintiffs are prevailing parties under Buckhannon is a question of law that we
10 review de novo. See, e.g., Pres. Coal. of Erie County v. Fed. Transit Admin., 356 F.3d 444, 450-
11 51 (2d Cir. 2004). Similarly, we review the District Court’s interpretation of the PLRA fee cap
12 provision de novo. See, e.g., United States v. Santos, 541 F.3d 63, 67 (2d Cir. 2008). The
13 District Court’s calculation of reasonable attorneys’ fees, on the other hand, will stand unless we
14 find it to be an abuse of discretion. See, e.g., Cruz v. Local Union No. 3 of Int’l Bhd. of Elec.
15 Workers, 34 F.3d 1148, 1159 (2d Cir. 1994).
16 B. Plaintiffs Are “Prevailing Parties” Under Buckhannon
17 The first issue before us is Defendants’ argument that Plaintiffs are not “prevailing
18 parties” under 42 U.S.C. § 1988(b). “[I]n order to be considered a ‘prevailing party’ . . . , a
19 plaintiff must not only achieve some material alteration of the legal relationship of the parties,
20 but that change must also be judicially sanctioned.” Roberson v. Giuliani, 346 F.3d 75, 79 (2d
21 Cir. 2003) (internal quotation marks omitted); see also Buckhannon, 532 U.S. at 604-05.5 That
5 Buckhannon concerned the fee-shifting provisions of the Fair Housing Amendments Act of 1988, 42 U.S.C. § 3613(c), and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12205, rather than § 1988(b). As we
11 1 is, plaintiffs are only eligible for attorneys’ fees if they “achieve some material alteration of the
2 legal relationship” between them and their adversaries, and that change bears a “judicial
3 imprimatur.” Roberson, 346 F.3d at 79-80. We find both prongs satisfied in view of the course
4 of the litigation below.
5 1. Material Alteration of the Legal Relationship
6 Defendants’ first argument, that it began serving Halal meat voluntarily and that the legal
7 relationship between the parties was unaltered, requires little discussion. At several points
8 during the litigation, Defendants acknowledged that they did not serve Halal meat to Muslim
9 inmates as often as they served Kosher meat to Jewish inmates and did not want to do so.
10 Indeed, their first settlement offer proposed that they serve Halal meat once a week, and the
11 County’s lawyer criticized Plaintiffs’ apparent position that they would not “accept any form of
12 settlement unless [the County] give[s] them Halal meat the same number of times that the Jewish
13 inmates get kosher meat.” As the Order of Settlement explicitly states, the County only changed
14 its conduct “in contemplation of settling the . . . lawsuits.” There is thus no merit to the County’s
15 contention that it changed its practices on its own and independent of the lawsuit.
16 More importantly, the County is now legally incapable of acting as it did before the entry
17 of the Order. The Order of Settlement specifically directs, inter alia, that the County “shall”
18 continue to provide Halal meat to Muslim inmates who request a Halal diet as often as it
19 provides Kosher meat to Jewish inmates who request a Kosher diet, and the County’s actions are
20 now governed by a ten-part procedure that is an express condition of the dismissal of the
have previously held, however, “the standards used to interpret the term prevailing party under any given fee-shifting statute are generally applicable in all cases in which Congress has authorized an award of fees to a prevailing party.” J.C. v. Reg’l Sch. Dist. 10, 278 F.3d 119, 123 (2d Cir. 2002) (internal quotation marks omitted).
12 1 lawsuits. Assuming the unlikely, that Defendants’ constitutional arguments were correct and the
2 County was free to serve Halal meat to Muslim inmates less often than it served Kosher meat to
3 Jewish inmates, it cannot now do so without violating a Court order. See Kokkonen v. Guardian
4 Life Ins. Co. of Am., 511 U.S. 375, 381 (1994) (noting that where an order of dismissal
5 “incorporat[es] the terms of [a] settlement agreement . . . , a breach of the agreement would be a
6 violation of the order”). Whether the County’s initial decision to serve Halal meat at the
7 appropriate frequency was voluntary or not is thus inconsequential, as it can no longer freely
8 reverse that decision.
9 2. Judicial Imprimatur
10 Defendants’ second contention is also unpersuasive. Under Buckhannon, Defendants
11 argue, only three outcomes have the requisite judicial imprimatur: a judgment on the merits, a
12 consent decree, or “a judicially enforceable settlement agreement.” So-ordered settlements that
13 do not explicitly provide for the retention of jurisdiction, like the one here, fall into none of these
14 three categories, the argument continues, and therefore Plaintiffs are not prevailing parties. But
15 nothing in Buckhannon or its sequelae limits judicial imprimatur to these three narrow categories,
16 hence Defendants’ major premise is incorrect.
17 The judicial imprimatur test grows out of Buckhannon, in which the Supreme Court
18 considered and rejected the “catalyst theory” that was, at the time, the law of this Court (and of
19 the majority of circuits) for gauging whether the prevailing parties requirement was met. See,
20 e.g., Marbley v. Bane, 57 F.3d 224, 234 (2d Cir. 1995). Under the catalyst theory, a plaintiff
21 prevailed for the purpose of fee-shifting provisions whenever her lawsuit “had sufficient merit to
22 withstand a motion to dismiss” and “brought about a voluntary change in the defendant’s
13 1 conduct.” Buckhannon, 532 U.S. at 601, 605. The Supreme Court held that this interpretation
2 was inconsistent with the definition of “prevailing parties” when used as a term of art. Id. at 603.
3 Instead, the Court held, plaintiffs must receive “some relief on the merits” to be termed
4 prevailing parties, as, for example, when they win a judgment on the merits or obtain “settlement
5 agreements enforced through a consent decree.” Id. at 603-04 (internal quotation marks omitted).
6 In a footnote, the Court added that “[p]rivate settlements do not entail the judicial approval and
7 oversight involved in consent decrees. And federal jurisdiction to enforce a private contractual
8 settlement will often be lacking unless the terms of the agreement are incorporated into the order
9 of dismissal.” Id. at 604 n.7.
10 Although the Supreme Court specifically mentioned merits decisions and consent
11 decrees, it did not suggest that one of these two conditions was necessary for a party to prevail.
12 Indeed, it referred to them as “examples” of sufficient outcomes. Id. at 605. Accordingly, we
13 held in Roberson that “judicial action other than a judgment on the merits or a consent decree can
14 support an award of attorneys’ fees, so long as such action carries with it sufficient judicial
15 imprimatur.” Roberson, 346 F.3d at 81. We then went on to consider the status under
16 Buckhannon of a dismissal order that did not incorporate the terms of a settlement agreement but
17 did provide that the district court would “retain jurisdiction . . . for enforcement purposes.” Id. at
18 78. In examining this question, we looked to Kokkonen, in which the Supreme Court held that a
19 federal district court could not exercise jurisdiction over the enforcement of a settlement
20 agreement where its order of dismissal neither incorporated the terms of the settlement agreement
21 nor included a provision retaining jurisdiction. But the Court stated quite clearly that a district
22 court could exercise jurisdiction in the two above-mentioned scenarios. As the Court wrote:
14 1 We have recognized inherent authority to appoint counsel to investigate and prosecute 2 violation of a court’s order. But the only order here was that the suit be dismissed, a 3 disposition that is in no way flouted or imperiled by the alleged breach of the settlement 4 agreement. The situation would be quite different if the parties’ obligation to comply 5 with the terms of the settlement agreement had been made part of the order of 6 dismissal—either by separate provision (such as a provision “retaining jurisdiction” over 7 the settlement agreement) or by incorporating the terms of the settlement agreement in the 8 order. In that event, a breach of the agreement would be a violation of the order, and 9 ancillary jurisdiction to enforce the agreement would therefore exist.
10 Kokkonen, 511 U.S. at 380-81 (internal citations omitted).6
11 Roberson dealt with the first hypothetical situation discussed in Kokkonen: an order of
12 dismissal retaining jurisdiction over a settlement agreement, but not otherwise referencing its
13 terms. We noted that Buckhannon had cited this portion of Kokkonen approvingly, and had
14 reaffirmed that “federal jurisdiction to enforce a private contractual settlement” could exist where
15 “the terms of the agreement are incorporated into the order of dismissal.” Buckhannon, 532 U.S.
16 at 604 n.7; see Roberson, 346 F.3d at 81. We went on to state that:
17 [v]iewed in the light of Kokkonen, the district court’s retention of jurisdiction in this case 18 is not significantly different from a consent decree and entails a level of judicial sanction 19 sufficient to support an award of attorney’s fees. First, despite the district court’s 20 statements that it had not specifically reviewed or approved the terms of the settlement 21 agreement, the district court retained jurisdiction to enforce the Agreement. Under 22 Kokkonen, when the district court retained jurisdiction, it necessarily made compliance 23 with the terms of the agreement a part of its order so that “a breach of the agreement 24 would be a violation of the order.” Further, because the court has the general 25 responsibility to ensure that its orders are fair and lawful, it retains some responsibility 26 over the terms of a settlement agreement as the parties’ obligation to comply with the 27 agreement was made a part of its order.
6 Defendants look to Kokkonen for support, as well as Torres v. Walker, 356 F.3d 238 (2d Cir. 2004), and Hester Industries, Inc. v. Tyson Foods, Inc., 160 F.3d 911 (2d Cir. 1998). All three cases involved so-ordered stipulations of dismissal that neither retained jurisdiction to enforce the underlying settlements nor incorporated the settlements’ terms. Because the Order of Settlement at issue in this case explicitly does incorporate the terms of the agreement, Kokkonen, Torres, and Hester do not control this case.
15 1 Id. at 82 (citation omitted). We held that, as the Fourth Circuit had previously also concluded,
2 “[a] court’s responsibility to ensure that its orders are fair and lawful stamps an agreement that is
3 made part of an order with judicial imprimatur.” Id. at 83 (quoting Smyth v. Rivero, 282 F.3d
4 268, 282 (4th Cir. 2002)). Such ongoing inherent authority made orders of dismissal in which
5 the district court retained jurisdiction to enforce the underlying settlement agreement
6 indistinguishable from consent decrees for the purposes of Buckhannon. As a result, we
7 concluded that the Roberson plaintiffs were entitled to seek fees. Id. at 83-84.
8 We have never squarely considered the second Kokonnen scenario, that of an order of
9 dismissal that explicitly incorporates the terms of a settlement, as does the Order of Settlement
10 before us today. But the logic of Roberson suggests that such orders must satisfy Buckhannon.
11 At the end of a footnote in Torres v. Walker, 356 F.3d 238 (2d Cir. 2004), however, we stated in
12 dicta that “Buckhannon requires not only the physical incorporation of the settlement in a district
13 court’s order but also some evidence that a district court intended to place its ‘judicial
14 imprimatur’ on the settlement.” Id. at 244 n.6 (emphasis added). Whatever the significance of
15 this remark, it is plain that, even under the Torres footnote, there is ample evidence in the instant
16 case that the District Court “intended to place its ‘judicial imprimatur’ on the settlement.” Id.
17 The Order of Settlement provided that Plaintiffs’ lawsuits would only be dismissed
18 “[u]pon the Court’s approval and entry of this Stipulation and Order.” This is not a case where
19 “[d]ismissal was effectuated by stipulation, or mutual agreement of the parties, and did not
20 require any judicial action,” Hester Indus., Inc. v. Tyson Foods, Inc., 160 F.3d 911, 916 (2d Cir.
16 1 1998); rather, the settlement was only made operative by the Court’s review and approval. In a
2 quite literal sense, it was the District Court’s imprimatur that made the settlement valid.7
3 Furthermore, this language is characteristic of another source of the requisite imprimatur.
4 The record demonstrates beyond peradventure Judge Berman’s extensive involvement and close
5 management of the case. He played an integral role in the resolution of the suit, he advised the
6 parties on how they should expect the law to come out, he suggested appropriate settlement
7 terms, and he directed counsel to conduct settlement negotiations and to bring settlement offers
8 back to their respective parties. When the parties brought the outlines of the ultimate settlement
9 proposal to the Court, Judge Berman pressed Defendants’ counsel on the need to make the
10 agreement part of an enforceable stipulation. Here again, we find strong evidence that Judge
11 Berman judicially sanctioned the settlement. Cf. Buckhannon, 532 U.S. at 618 (Scalia, J.,
12 concurring) (“In the case of court-approved settlements . . . , even if there has been no judicial
13 determination of the merits, the outcome is at least the product of, and bears the sanction of,
14 judicial action in the lawsuit. There is at least some basis for saying that the party favored by the
15 settlement . . . prevailed in the suit.”).8
16 We, therefore, conclude that the evidence considered together makes manifest that the
17 Order of Settlement bore the imprimatur of the District Court. Buckhannon is satisfied, and
18 Plaintiffs qualify as “prevailing parties” under 42 U.S.C. § 1988(b).
7 As Black’s Law Dictionary notes, imprimatur means literally, “let it be printed.” Black’s Law Dictionary 825 (9th ed. 2009).
8 Judge Berman’s belief that he had given the settlement his sanction, evident in his Buckhannon analysis, is not without significance. As we noted in Torres, the imprimatur inquiry is in some regard about the intent of the district court. See Torres, 356 F.3d at 245 n.6 (describing Buckhannon as requiring “evidence that a district court intended to place its ‘judicial imprimatur’ on the settlement” (emphasis added)). W hile a district judge’s own opinion as to whether or not his actions provide imprimatur cannot be controlling, it might in a close case, unlike this one, shed light as to how ambiguous actions should be understood.
17 1 C. The PLRA Fee Cap Applies to Plaintiffs’ Suits
2 We must also decide whether the PLRA’s fee cap applies to Plaintiffs’ suits. The PLRA
3 limits the availability of attorneys’ fees under § 1988 “[i]n any action brought by a prisoner who
4 is confined to any jail, prison, or other correctional facility.” 42 U.S.C. § 1997e(d)(1). One of
5 the ways it does this is by capping the fees that a court can award at an hourly rate no greater than
6 150 percent of the hourly rate established by the Judicial Conference for payment of court-
7 appointed counsel in a given district. Id. § 1997e(d)(3).9 Plaintiffs argue that this cap does not
8 apply, for two reasons. First, they claim, the Order of Settlement exempted their suits from the
9 fee cap by explicitly allowing Plaintiffs to move for attorneys’ fees. Second, they argue, the fee
10 cap applies only to prisoners who are still incarcerated at the time of their case’s resolution. We
11 hold against Plaintiffs on both grounds.
12 1. The Text of the Order of Settlement
13 Plaintiffs first claim that the Order of Settlement “explicitly exempted this case from the
14 PLRA fee cap.” For support, they point to the following language:
15 (i) Plaintiffs expressly reserve the right to move [the District Court], pursuant to any state 16 or federal statute or common law for payment of their respective attorneys fees and 17 reimbursement of costs and expenses, (ii) Plaintiffs shall be permitted to file the 18 appropriate motion for attorney’s fees and costs with this Court as Plaintiffs deem fit and; 19 (iii) County Defendants shall have an opportunity to oppose any such motion for 20 attorney’s fees and reimbursement of costs and expenses.
21 By explicitly reserving to Plaintiffs the right to move for fees and not explicitly reserving to
22 Defendants a PLRA fee cap defense, Plaintiffs argue, this language exempted their case from the
23 fee cap.
9 The District Court found that the PLRA allows for an hourly rate of $138 in the Southern District, and neither party has suggested otherwise.
18 1 The language on which Plaintiffs rely, however, does not support this conclusion. It only
2 reserves to Plaintiffs the right to move for fees “pursuant to any state or federal statute or
3 common law.” That is, it only allows the Court to award such fees as are otherwise authorized
4 by law—specifically, fees under § 1988, which are limited by the PLRA.10 Rather than providing
5 Plaintiffs with a new claim for fees, subject only to the District Court’s discretion, the language
6 simply preserves to Plaintiffs a right they already had (but might perhaps have been deemed to
7 have relinquished, had the Order of Settlement been silent on the issue).
8 Torres, upon which Plaintiffs rely, is not to the contrary. In Torres, as discussed supra
9 n.5, we found that plaintiffs were not prevailing parties because the district court had merely so-
10 ordered a stipulation of dismissal, and had not incorporated the terms of the settlement. Torres,
11 356 F.3d at 242-45. Accordingly, in Torres fees could not be awarded under § 1988. Because
12 the PLRA fee cap affects only actions “in which attorney’s fees are authorized under [§ 1988],”
13 42 U.S.C. § 1997e(d)(1), it had no application to Torres. The reference in the Torres order to
14 allowing plaintiffs to obtain fees could only be interpreted as providing independent contractual
15 authority for fee-shifting. Moreover, as we noted in Torres, the language of that stipulation
16 “plainly and unambiguously provided for the payment of Torres’ reasonable attorneys’ fees, to be
17 determined by the District Court.” Torres, 356 F.3d at 245 (emphasis added). The instant
18 settlement contains no similar language.
19 2. The Fee Cap’s Application to Released Prisoners
10 Plaintiffs identify no applicable ground for fee-shifting under state law or common law, and we can think of none. Section 1988 is, of course, an exception to the general American common law rule that parties bear their own fees. See Buckhannon, 532 U.S. at 602-03.
19 1 Plaintiffs also argue that the plain text of the PLRA applies only to prisoners who are still
2 incarcerated at the time of the successful resolution of their suits, and has no application to
3 plaintiffs who were incarcerated when they filed suit but who have since been released. They
4 rely heavily on Morris v. Eversley, 343 F. Supp. 2d 234 (S.D.N.Y. 2004), in which Judge Chin
5 conducted a thoughtful analysis of the question and concluded that the fee cap applied only to
6 currently incarcerated prisoners. Plaintiffs, following Morris, point to the statutory text, which
7 applies the fee cap to “any action brought by a prisoner who is confined to any jail, prison, or
8 other correctional facility.” 42 U.S.C. § 1997e(d)(1) (emphasis added). The highlighted portion,
9 the argument runs, must refer to the status of the plaintiff at the conclusion of the suit, rather that
10 its inception, or else it would be redundant. For, they assert, a “prisoner” is, by definition, an
11 individual “confined to [a] jail, prison, or other correctional facility.” See Morris, 343 F. Supp.
12 2d at 241. Additionally, they argue, Congress intended the PLRA to curb frivolous lawsuits, not
13 meritorious ones. As a result, they contend, any ambiguities should be construed in ways that are
14 favorable to successful (and, by implication, meritorious) suits. See id. at 241-42. Finally, they
15 say, applying the fee cap to released prisoners would give rise to “absurd” results. It would
16 create a senseless disparity between prisoners who file toward the end of their incarceration and
17 those who wait until their release to file. Even more absurdly, it would create incentives for
18 prisoners to withdraw suits filed while in jail, only to refile their claims upon the prisoners’
19 release. See id. at 244.
20 While not without some merit, these arguments do not persuade us. First, we believe that
21 the text of the PLRA, although not entirely unambiguous, is most naturally read as referring
22 solely to a plaintiff’s status at the time of filing, not at subsequent stages of the proceedings. The
20 1 act applies to “any action brought by a prisoner who is confined to any jail, prison, or other
2 correctional facility.” § 1997e(d)(1) (emphasis added). Its only temporal hook is to the time the
3 action is brought—that is, when it is filed. See Jackson v. State Bd. of Pardons & Paroles, 331
4 F.3d 790, 795 (11th Cir. 2003) (“[T]he term ‘brought’ as used in § 1997e(d)’s ‘in any action
5 brought’ language means filed.”). The reference to a prisoner’s “confine[ment in] any jail,
6 prison, or other correctional facility” thus seems to describe the status of a plaintiff at the time of
7 filing, not that of the plaintiff at some later time.
8 Nor do we find the redundancy that Plaintiffs say attaches to such a reading. Plaintiffs are
9 right, of course, that we construe statutes to avoid surplusage whenever possible. See, e.g., Cal.
10 Pub. Employees’ Ret. Sys. v. Worldcom, Inc., 368 F.3d 86, 106 (2d Cir. 2004) (“Statutes should
11 be construed, if possible, to give effect to every clause and word.”). But our understanding of §
12 1997e(d)(1) does not leave us with a bare redundancy. The phrases “prisoner” and “confined to
13 any jail, prison, or other correctional facility” are not synonymous. The term “prisoner,” as
14 defined in the PLRA, “means any person incarcerated or detained in any facility who is accused
15 of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the
16 terms and conditions of parole, probation, pretrial release, or diversionary program.” § 1997e(h)
17 (emphasis added). The fee cap, instead, applies to only three types of facilities: jails, prisons, and
18 other correctional facilities in which a prisoner may be confined. § 1997e(d)(1). As a result,
19 some “prisoners” are not made subject to the fee cap: for example, those incarcerated or detained
20 in medical facilities or mental institutions. Without going further into the matter, we conclude
21 that Plaintiffs’ reliance on the canon against surplusage is misplaced.
21 1 Contrary to Plaintiffs’ claim, we also do not believe that applying the fee cap to suits filed
2 when Plaintiffs are incarcerated produces “absurd results.” True, the fee cap draws a distinction
3 between otherwise identical claims, leading one plaintiff to file while incarcerated and others to
4 wait until their release from incarceration to file suit. Cf. Doe v. Wash. County, 150 F.3d 920,
5 924 (8th Cir. 1998) (holding that the fee cap does not apply to suits brought by former prisoners).
6 But this is not a wholly artificial distinction; Congress may well have thought that persons still
7 incarcerated were more inclined to bring suits than those who were back in the world and now
8 had less time on their hands and better things to do with it. See Hearing on S. 3 and S. 866
9 Before the Senate Committee on the Judiciary, 104th Cong., 1995 WL 496909 (F.D.C.H.) (July
10 27, 1995) (prepared statement of O. Lane McCotter, Exec. Dir., Utah Dep’t of Corrections) (“The
11 driving force behind this flood of litigations is that inmates have ‘nothing to lose’ in filing even
12 the most frivolous case . . . .”). Moreover, Plaintiffs’ preferred reading would produce results at
13 least as peculiar: a plaintiff who obtained a settlement or a verdict on the eve of her release
14 would be covered by the fee cap, while one who obtained similar success immediately after her
15 release would not. All in all, we conclude that the more likely textual reading survives any
16 “absurdity” test.
17 D. The District Court Did Not Abuse Its Discretion in Calculating Fees
18 Defendants argue that the District Court abused its discretion in declining to reduce its fee
19 award for work that Defendants claim was “inconsistent,” “duplicative, redundant, excessive and
20 unreasonable.” “The calculation of reasonable attorneys fees is a factual issue whose resolution
21 is committed to the discretion of the district court.” Cruz, 34 F.3d at 1159.11 We see no abuse of
11 Defendants do not assert that the District Court made any errors of law in its award, apart from their Buckhannon claim.
22 1 the District Court’s discretion. Most of the items that Defendants contest would have been vital
2 if the case proceeded to trial. Particularly considering that Defendants’ initial position was to
3 refuse adamantly the Plaintiffs’ requests, and that the District Court set an accelerated trial
4 schedule, these expenses seem entirely warranted. Similarly, none of Defendants’ other
5 complaints lead us to conclude that the District Court abused its discretion.
6 E. The District Court Should Consider Plaintiff’s Request for Fees on Fees
7 Finally, Plaintiffs request that we remand the case to the District Court so that it may
8 award them attorneys’ fees for the time spent defending their award on appeal (“fees on fees”).
9 Defendants do not oppose this request. Such requests “should be granted whenever underlying
10 costs are allowed.” Weyant v. Okst, 198 F.3d 311, 316 (2d Cir. 1999). We therefore remand the
11 case to the District Court to determine a reasonable fee award for Fox’s work in connection with
12 this appeal.
13 III. CONCLUSION
14 To summarize, we hold (1) that Plaintiffs in this case are prevailing parties and thus
15 eligible for fees under 42 U.S.C. § 1988; (2) that the PLRA’s fee cap applies to their suit; and (3)
16 that the District Court did not abuse its discretion in determining the fee award. Accordingly, we
17 AFFIRM the judgment of the District Court. We also REMAND the case to the District Court
18 for the determination of a reasonable fee award for Fox’s work in connection with this appeal.