This article first appeared in the November
5, 2013, issue of the National Law Journal’s Supreme Court Brief.
Mary Murguia,
one of the newest judges on the U.S. Court of Appeals for the Ninth Circuit, recently
took on two of her longest serving colleagues in a dispute over attorney’s fees
in prisoner litigation. Murguia has another appeals court, the Sixth Circuit, on
her side. The U.S. Supreme Court could be asked to resolve the split.
Judge Stephen
Reinhardt, joined by Judge John Noonan, wrote the majority opinion in Woods
v. Cervantes. Both have served on the Ninth Circuit since the 1980s. Reinhardt
is still active; Noonan has taken senior status. Murguia joined the Ninth
Circuit in 2011, though not as a rookie. From 2000 until her elevation, she served
as a federal district judge in Arizona.
In the Ninth
Circuit case, a California prison official improperly denied dental care to
prisoner Earnest Woods, causing him pain and suffering for more than a year. A
jury awarded Woods $1,500 in compensatory and punitive damages. After also winning
on appeal, Woods sought attorney’s fees totaling $16,800.
The Prison
Litigation Reform Act caps attorney’s fees at 150 percent of a money award for “any
action brought by a prisoner.” Beyond that limit, “fees shall not be awarded.”
Reinhardt ruled
that Woods was entitled to collect his attorney’s fees,** finding that the cap
applies only to fees for a trial, an action brought by the prisoner, but not to
appeals brought by prison officials.
Murguia, the
former district court judge, disagreed, calling the majority’s attempt “to
evade the statute’s clear meaning…unconvincing.” The trial and appeal are parts
of the same action, she stated.
Citing a unanimous
2004 decision by the Sixth Circuit, Riley
v. Kurtz, Murguia urged that the attorney’s fee cap apply to both the
trial and appeal. The Supreme Court declined to review the Sixth Circuit case at
the time.
“The majority
has created a circuit split by awarding attorney fees the statute says ‘shall
not’ be awarded,” Murguia concluded.
Reinhardt acknowledged
the circuit split, but countered that “we are not required to follow the
initial circuit to decide an issue if our own careful analysis” yields a “contrary
result.”
The state of California,
representing the prison official, filed a petition for rehearing en banc in
August. California argued that the majority opinion “blows the lid off the
statutory attorney’s fee cap that Congress enacted to lessen the financial
burden of prisoner litigation on governmental officials and, ultimately,
taxpayers.”
In September,
the University of Montana Law School’s Criminal Defense Clinic responded for
Woods, accusing the petition of “overriding hyperbole.” The response suggested
allowing the issue to percolate through additional circuits.
The Ninth
Circuit had directed the clinic to respond to the petition, indicating some
level of interest in taking up the matter en banc. Responses to en banc
petitions are not automatically allowed.
If the en
banc court declines to step in, the case could reach the Supreme Court soon.
Attorney’s fees
are already on the high court’s radar.
In the new
term, the Supreme Court will hear two cases about fees in patent disputes. Companies
have complained that they are forced to settle infringement lawsuits, even frivolous
ones, because the costs of litigation are too high. They hope the justices will
make it easier to collect attorney’s fees, to deter so-called patent trolls.
Last term,
the Supreme Court decided an attorney’s fee case in the context of the National
Childhood Vaccine Injury Act and another, without argument, in an abortion
protest clash.
Murguia’s
brother Carlos is a federal district judge in Kansas, their home state. The two
are the first brother and sister pair of federal judges. Another sister, Mary’s
identical twin Janet, is the president of the National Council of La Raza, the
largest national Hispanic civil rights and advocacy organization in the United
States.
____________________
**On the exact amount of attorney's fees to award, the majority referred the matter to its Appellate Commissioner.
