Wednesday, November 6, 2013

Circuit Split Watch: Attorney's Fees in Prisoner Litigation

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.