OCTOBER TERM, 1998
Syllabus
MARTIN, DIRECTOR, MICHIGAN DEPARTMENT OF CORRECTIONS, ET AL.
v. HADIX ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT
No. 98-262. Argued March 30, 1999-Decided June 21,1999
Respondent prisoners filed two federal class actions in 1977 and
1980 against petitioner prison officials challenging the conditions
of confinement in the Michigan prison system under 42 U. S. C. §
1983. By 1987, the plaintiffs had prevailed in both suits, the
District Court for the Eastern District of Michigan had ruled them
entitled to attorney's fees under § 1988 for post judgment
monitoring of the defendants' compliance with remedial decrees,
systems were established for awarding those fees on a semiannual
basis, and the District Court had established specific market rates
for awarding fees. By April 26, 1996, the effective date of the
Prison Litigation Reform Act of 1995 (PLRA), the prevailing market
rate in both cases was $150 per hour. However, § 803(d)(3) of the
PLRA, 42 U. S. C. § 1997e(d)(3), limits the size of fees that may
be awarded to attorneys who litigate prisoner lawsuits. In the
Eastern District, those fees are capped at a maximum hourly rate of
$112.50. When first presented with the issue, the District Court
concluded that the PLRA cap did not limit attorney's fees for
services performed in these cases prior to, but that were still
unpaid by, the PLRA's effective date, and the Sixth Circuit
affirmed. Fee requests next were filed in both cases for services
performed between January 1, 1996, and June 30, 1996, a period
encompassing work performed both before and after the PLRA's
effective date. In nearly identical orders, the District Court
reiterated its earlier conclusion that the PLRA does
not
limit fees for work performed
before April 26, 1996, but
concluded that the PLRA cap
does limit fees for services
performed
after that date. The Sixth Circuit consolidated
the appeals from these orders, and, as relevant here, affirmed in
part and reversed in part. It held that the PLRA's fee limitation
does not apply to cases pending on the enactment date. If it did,
the court held, it would have an impermissible retroactive effect,
regardless of when the work was performed.
Held: Section 803(d)(3) limits attorney's fees for post
judgment monitoring services performed after the PLRA's effective
date, but does not limit fees for monitoring performed before that
date. Pp. 352-362.
(a) Whether the PLRA applies to cases pending when it was
enacted depends on whether Congress has expressly prescribed the
statute's
344
Syllabus
temporal reach.
Landgraf v.
USI Film Products,
511 U. S. 244,
280. If not, the Court determines whether the statute's application
to the conduct at issue would result in a retroactive effect. If
so, the Court presumes that the statute does not apply to that
conduct.
E. g., ibid. P.352.
(b) Congress has not expressly mandated § 803(d)(3)'s temporal
reach.
The fundamental problem with petitioners' arguments that the
language of § 803(d)(1)-which provides for attorney's fees "[i]n
any action
brought by a prisoner who is confined"
(emphasis added)-and of §803(d)(3)-which relates to fee
"award[s]"-c1early expresses a congressional intent that § 803(d)
apply to pending cases is that § 803(d) is better read as setting
substantive limits on the award of attorney's fees, and as making
no attempt to define the temporal reach of these substantive
limitations. Had Congress intended § 803(d)(3) to apply to all fee
orders entered after the effective date, it could have used
language that unambiguously addresses the section's temporal reach,
such as the language suggested in
Landgraf "[T]he [PLRA]
shall apply to all proceedings pending on or commenced after the
date of enactment." 511 U. S., at 260 (internal quotation marks
omitted). Pp. 353-355.
(c) The Court also rejects respondents' contention that the
PLRA's fee provisions reveal a congressional intent that they apply
prospectively only to cases filed after the effective date.
According to respondents, a comparison of § 802-which, in
addressing "appropriate remedies" in prison litigation, explicitly
provides that it applies to pending cases, § 802(b)(1)-with §
803-which is silent on the subjectsupports the negative inference
that § 803 does
not apply to pending cases. This argument is
based on an analogy to
Lindh v.
Murphy, 521 U. S. 320, 329, in
which the Court, in concluding that chapter 153 of the
Antiterrorism and Effective Death Penalty Act of 1996 was
inapplicable to pending cases, relied heavily on the observation
that chapter 154 of that Act included explicit language making it
applicable to such cases. The "negative inference" argument is
inapposite here. In
Lindh, the negative inference arose from
the fact that the two chapters addressed similar issues, see
ibid.; here, §§ 802 and 803 address wholly distinct subject
matters. Finally, respondents' attempt to bolster their "negative
inference" argument with the legislative historywhich indicates
that § 803's attorney's fees limitations were originally part of §
802, along with language making them applicable to pending
cases--overstates the inferences that can be drawn from an
ambiguous act of legislative drafting. Pp. 355-357.
(d) Application of § 803(d)(3) in parts of this case would have
retroactive effects inconsistent with the usual rule that
legislation is deemed to be prospective. Pp. 357-362.
345
(1) This inquiry demands a commonsense, functional judgment
about whether the new provision attaches new legal consequences to
events completed before its enactment.
Landgraf, 511 U. S.,
at 270. This judgment should be informed and guided by familiar
considerations of fair notice, reasonable reliance, and settled
expectations.
Ibid. Pp. 357-358.
(2) For post judgment monitoring performed before the PLRA's
effective date, the attorney's fees provisions have a retroactive
effect contrary to the usual assumption that statutes are
prospective in operation. The attorneys in both cases below had a
reasonable expectation that work they performed before the PLRA's
enactment would be compensated at the pre-PLRA rates set by the
District Court. The PLRA, as applied to work performed before its
effective date, would alter the fee arrangement
post hoc by
reducing the compensation rate. To give effect to the PLRA's fees
limitations, after the fact, would attach new legal consequences to
completed conduct.
Landgraf, supra, at 270. The Court
rejects petitioners' contention that the application of a new
attorney's fees provision is proper in that fees questions do not
change the parties' substantive obligations because they are
collateral to the main cause of action. When determining whether a
new statute operates retroactively, it is not enough to attach a
label
(e. g., "procedural," "collateral") to the statute; it
must be asked whether the statute operates retroactively, as does
the PLRA. Petitioners also misplace their reliance on
Bradley v.
School Bd. of Richmond, 416 U. S. 696, 720-721.
Unlike the situation here, the award of statutory attorney's fees
in that case did not upset any reasonable expectations of the
parties. See
Landgraf, 511 U. S., at 276-279. Thus, in the
absence of an express command by Congress to apply the PLRA
retroactively, the Court declines to do so.
Id., at 280. Pp.
358-360.
(3) With respect to post judgment monitoring performed after the
PLRA's effective date, by contrast, there is no retroactive effect,
and the PLRA fees cap applies to such work. On April 26, 1996,
through the PLRA, the plaintiffs' attorneys were on notice that
their hourly rate had been adjusted. From that point forward, they
would be paid at a rate consistent with the law's dictates, and any
expectation of compensation at the pre-PLRA rates was unreasonable.
The Court rejects respondents' contention that the PLRA has
retroactive effect in this context because it attaches new legal
consequences (a lower pay rate) to conduct completed before
enactment, the attorney's initial decision to file suit on behalf
of prisoners. That argument is based on the erroneous assumption
that the attorney's initial decision to file a case is irrevocable.
Respondents do not seriously contend that the attorneys here were
prohibited from withdrawing from the case during the postjudgment
monitoring stage. Pp. 360-361.
143 F.3d
246, affirmed in part and reversed in part.
346
Syllabus
O'CONNOR, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and KENNEDY, SOUTER, THOMAS, and BREYER, JJ.,
joined, in which SCALIA, J., joined as to all but Part II-B, and in
which STEVENS and GINSBURG, JJ., joined as to Parts I, II-A-l, and
II-B-l. SCALIA, J., filed an opinion concurring in part and
concurring in the judgment,
post, p. 362. GINSBURG, J.,
filed an opinion concurring in part and dissenting in part, in
which STEVENS, J., joined,
post, p. 364.
Thomas L. Casey, Solicitor General of Michigan, argued
the cause for petitioners. With him on the briefs were
Jennifer
M. Granholm, Attorney General,
Frank J.
Kelley, former Attorney General, and
Leo H. Friedman
and
Mark W Matus, Assistant Attorneys General.
Deborah LaBelle argued the cause for respondents. With
her on the brief was
Jeffrey D. Dillman. *
* A brief of
amici curiae urging reversal was filed for
the State of Ohio et al. by
Betty D. Montgomery, Attorney
General of Ohio, and
Stuart W Harris and
Todd R.
Marti, Assistant Attorneys General, by
L. A. Prager,
Corporation Counsel of the District of Columbia, and by the
Attorneys General for their respective jurisdictions as follows:
Bill Pryor of Alabama,
Bruce M. Botelho of Alaska,
Grant Woods of Arizona,
Daniel E. Lungren of
California,
M. Jane Brady of Delaware,
Robert A.
Butterworth of Florida,
Thurbert E. Baker of Georgia,
Robert H. Kono of Guam,
Margery S.
Bronster of
Hawaii,
Alan G.
Lance of Idaho,
Jim Ryan of
Illinois,
Jeffrey A. Modisett of Indiana,
Tom Miller
of Iowa,
Carla J. Stovall of Kansas,
Richard P. Ieyoub of Louisiana,
J. Joseph Curran,
Jr., of Maryland,
Scott Harshbarger of Massachusetts,
Hubert H. Humphrey III of Minnesota,
Mike Moore of
Mississippi,
Joseph P. Mazurek of Montana,
Don
Stenberg of Nebraska,
Frankie Sue Del Papa of Nevada,
Peter Verniero of New Jersey,
Dennis C.
Vacco
of New York,
Michael F.
Easley of North Carolina,
W A. Drew Edmondson of Oklahoma,
Hardy Myers of
Oregon,
D. Michael Fisher of Pennsylvania,
Jeffrey B.
Pine of Rhode Island,
Charles M. Condon of South
Carolina,
Mark Barnett of South Dakota,
John Knox
Walkup of Tennessee,
Jan Graham of Utah,
William H.
Sorrell of Vermont,
Mark L. Earley of Virginia,
Christine Q Gregoire of Washington, and
Darrell V.
McGraw of West Virginia.
Elizabeth Alexander, Donna H. Lee, Eric Balaban, Steven R.
Shapiro, and Kary L. Moss filed a brief for the American Civil
Liberties Union et al. as amici curiae urging affirmance.
347
JUSTICE O'CONNOR delivered the opinion of the Court. * Section
803(d)(3) of the Prison Litigation Reform Act of 1995 (PLRA or
Act), 110 Stat. 1321-72, 42 U. S. C. § 1997e(d)(3) (1994 ed., Supp.
III), t places limits on the fees that may be awarded to attorneys
who litigate prisoner lawsuits. We are asked to decide how this
section applies to cases that were pending when the PLRA became
effective on April 26, 1996. We conclude that § 803(d)(3) limits
attorney's fees with respect to post judgment monitoring services
performed after the PLRA's effective date but it does not so limit
fees for post judgment monitoring performed before the effective
date.
I
The fee disputes before us arose out of two class action
lawsuits challenging the conditions of confinement in the Michigan
prison system. The first case, which we will call
Glover,
began in 1977 when a now-certified class of female prisoners filed
suit under Rev. Stat. § 1979, 42 U. S. C. § 1983, in the United
States District Court for the Eastern District of Michigan. The
Glover plaintiffs alleged that the defendant prison
officials had violated their rights under the Equal Protection
Clause of the Fourteenth Amendment by denying them access to
vocational and educational opportunities that were available to
male prisoners. They also claimed that the defendants had denied
them their right of access to the courts. After a bench trial, the
District Court found "[s]ignificant discrimination against the
female prison population" in violation of the Equal Protection
Clause,
Glover v.
John-
*For the reasons stated in his separate opinion, JUSTICE SCALIA
joins Parts I, II-A, and II-C of this opinion. For the reasons
stated in JusTICE GINSBURG'S separate opinion, she and JUSTICE
STEVENS join Parts I, II-A-1, and II-B-1 of this opinion.
tSubsection (d) of § 803(d) is the fee provision we consider
today, and is codified at 42 U. S. C. § 1997e(d). Although that
provision is technically § 803(d)(d) of the PLRA, like the parties,
we refer to it simply as § 803(d) of the PLRA.
348
son, 478 F. Supp. 1075, 1083 (1979), and concluded that
the defendants' policies had denied the
Glover plaintiffs
their right of meaningful access to the courts,
id., at
1096-1097. In 1981, the District Court entered a "Final Order"
detailing the specific actions to be undertaken by the defendants
to remedy the constitutional violations.
Glover v.
Johnson, 510 F. Supp. 1019 (ED Mich.). One year later, the
court found that the plaintiffs were "prevailing parties" and thus
entitled to attorney's fees under 42 U. S. C. § 1988 (1994 ed. and
Supp. III).
Glover v.
Johnson, Civ. Action No.
77-71229 (ED Mich., Feb. 2, 1982), App. 103a.
In 1985, the parties agreed to, and the District Court entered,
an order providing that the plaintiffs were entitled to attorney's
fees for post judgment monitoring of the defendants' compliance
with the court's remedial decrees.
Glover v.
Johnson,
No. 77-71229 (ED Mich., Nov. 12, 1985), App. 125a (Order Granting
Plaintiffs' Motion for System for Submission of Attorney Fee). This
order also established the system for awarding monitoring fees that
was in place when the present dispute arose. Under this system, the
plaintiffs submit their fee requests on a semiannual basis, and the
defendants then have 28 days to submit any objections to the
requested award. The District Court resolves any disputes.
Ibid. In an appeal from a subsequent dispute over the
meaning of this order, the Court of Appeals for the Sixth Circuit
affirmed that the plaintiffs were entitled to attorney's fees, at
the prevailing market rate, for post judgment monitoring.
Glover v.
Johnson, 934 F.2d
703, 715-716 (1991). The prevailing market rate has been
adjusted over the years, but it is currently set at $150 per hour.
See
Hadix v.
Johnson, 143 F.3d
246, 248
(CA6 1998) (describing facts of
Glover).
The second case at issue here,
Hadix, began in 1980. At
that time, male prisoners at the State Prison of Southern Michigan,
Central Complex (SPSM-CC), filed suit under 42 U. S. C. § 1983 in
the United States District Court for
349
the Eastern District of Michigan claiming that the conditions of
their confinement at SPSM-CC violated the First, Eighth, and
Fourteenth Amendments to the Constitution. Five years later, the
Hadix plaintiffs and the defendant prison officials entered
into a consent decree to "'assure the constitutionality''' of the
conditions of confinement at SPSM-CC.
Hadix v.
Johnson, 144 F.3d
925, 930
(CA61998) (quoting consent decree). The consent
decree, which was approved by the District Court, addressed a
variety of issues at SPSM-CC, ranging from sanitation and safety to
food service, mail, and access to the courts.
In November 1987, the District Court entered an order awarding
attorney's fees to the
Hadix plaintiffs for postjudgment
monitoring of the defendants' compliance with the consent decree.
Hadix v.
Johnson, No. 80-CV-73581 (ED Mich., Nov. 19,
1987), App. 79a. Subsequently, the
Hadix plaintiffs were
awarded attorney's fees through a procedure similar to the
procedure that had been established for the
Glover
plaintiffs: The plaintiffs submitted semiannual fee requests, the
defendants filed timely objections to these requests, and the
District Court resolved any disputes. The District Court set, and
periodically adjusted, a specific market rate for the fee awards;
by 1995, that rate was set at $150 per hour for lead counsel. See
Hadix v.
Johnson, 65
Thus, by 1987,
Glover and
Hadix were on parallel
paths.
In both cases, the District Court had concluded that the
plaintiffs were entitled to post judgment monitoring fees under 42
U. S. C. § 1988, and the parties had established a system for
awarding those fees on a semiannual basis. Moreover, in both cases,
the District Court had established specific market rates for
awarding fees. By the time the PLRA was enacted, the prevailing
market rate in both cases had been set at $150 per hour.
The fee landscape changed with the passage of the PLRA on April
26, 1996. The PLRA, as its name suggests, con-
350
tains numerous provisions governing the course of prison
litigation in the federal courts. It provides, for example, limits
on the availability of certain types of relief in such suits, see
18 U. s. C. § 3626(a)(2) (1994 ed., Supp. III), and for the
termination of prospective relief orders after a limited time, §
3626(b). The section of the PLRA at issue here, § 803(d)(3), places
a cap on the size of attorney's fees that may be awarded in prison
litigation suits:
"(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. § 1988], such fees shall not
be awarded, except to the extent [authorized here].
"(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 [18 U. S. C. § 3006A
(1994 ed. and Supp. III)], for payment of court-appointed counsel."
§ 803(d), 42 U. S. C. § 1997e(d) (1994 ed., Supp. III).
Court-appointed attorneys in the Eastern District of Michigan
are compensated at a maximum rate of $75 per hour, and thus, under
§ 803(d)(3), the PLRA fee cap for attorneys working on prison
litigation suits translates into a maximum hourly rate of
$112.50.
Questions involving the PLRA first arose in both
Glover
and
Hadix with respect to fee requests for post judgment
monitoring performed
before the PLRA was enacted. In both
cases, in early 1996, the plaintiffs submitted fee requests for
work performed during the last half of 1995. These requests were
still pending when the PLRA became effective on April 26, 1996. In
both cases, the District Court concluded that the PLRA fee cap did
not limit attorney's fees for services performed in these cases
prior to the effective
351
date of the Act.
Glover v.
Johnson, Civ. Action
No. 77-71229 (ED Mich., June 3, 1996), App. 148a;
Hadix v.
Johnson, Civ. Action No. 80-73581 (ED Mich., May 30, 1996),
App. 91a. The Sixth Circuit affirmed this interpretation of the
PLRA on appeal.
Glover v.
Johnson, 138 F.3d
229, 249-251 (1998);
Hadix v.
Johnson, 144 F. 3d,
at 946-948.
Fee requests next were filed in both
Glover and
Hadix for services performed between January 1, 1996, and
June 30, 1996, a time period encompassing work performed both
before and after the effective date of the PLRA. As relevant to
this case, the defendant state prison officials argued that these
fee requests were subject to the fee cap found in § 803(d)(3) of
the PLRA, and the District Court accepted this argument in part. In
nearly identical orders issued in the two cases, the court
reiterated its earlier conclusion that the PLRA does
not
limit fees for work performed
before April 26, 1996, but
concluded that the PLRA fee cap
does limit fees for services
performed
after the effective date.
Hadix v.
Johnson, Case No. 80-73581 (ED Mich., Dec. 4, 1996), App. to
Pet. for Cert. 27a;
Glover v.
Johnson, Case No.
77-71229 (ED Mich., Dec. 4, 1996), App. to Pet. for Cert.33a.
The Court of Appeals for the Sixth Circuit consolidated the
appeals from these orders, and, as relevant here, affirmed in part
and reversed in part.
Hadix v.
Johnson, 143 F.3d
246 (1998). According to the Court of Appeals, the PLRA's fee
limitation does not apply to fee requests such as those in
Hadix and
Glover that relate to cases that were
pending on the date of enactment. If it were applied to pending
cases, the court held, it would have an impermissible retroactive
effect, regardless of when the work was performed. 143 F. 3d, at
250-256.
The Court of Appeals' holding-that the PLRA's attorney's fees
provisions do not apply to pending cases-is inconsistent with the
holdings of other Circuits on these issues. For example, the Courts
of Appeals for the Fourth and Ninth
352
Circuits have held that § 803(d) caps all fees that are ordered
to be paid after the enactment of the PLRA, even when those fees
compensate attorneys for work performed prior to the enactment of
the PLRA.
Alexander S. v.
Boyd, 113
F.3d 1373, 1385-1388
(CA4 1997), cert. denied, 522 U. S.
1090 (1998);
Madrid v.
Gomez, 150
F.3d 1030 (CA9 1998). See also
Blissett v.
Casey, 147 F.3d
218 (CA2 1998) (PLRA does not necessarily limit fees
when work performed before effective date but award rendered after
effective date), cert. pending, No. 98-527;
Inmates of
D. C.
Jail v.
Jackson, 158 F. 3d 1357, 1360
(CADC 1998) (holding that PLRA limits fees for work
performed after effective date of Act, and suggesting in dicta that
it does not apply to work performed prior to effective date), cert.
pending, No. 98-917. We granted certiorari to resolve these
conflicts. 525 U. S. 1000 (1998). In this Court, the
Hadix
and
Glover plaintiffs are respondents, and the defendant
prison officials from both cases are petitioners.
II
Petitioners contend that the PLRA applies to
Glover and
Hadix, cases that were pending when the PLRA was enacted.
This fact pattern presents a recurring question in the law: When
should a new federal statute be applied to pending cases? See,
e. g., Lindh v.
Murphy, 521 U. S. 320 (1997);
Hughes Aircraft Co. v.
United States ex rel. Schumer,
520 U. S. 939
(1997). To answer this question, we ask first "whether Congress has
expressly prescribed the statute's proper reach."
Landgraf
v.
USI Film Products, 511 U. S. 244, 280
(1994). If there is no congressional directive on the temporal
reach of a statute, we determine whether the application of the
statute to the conduct at issue would result in a retroactive
effect.
Ibid. If so, then in keeping with our "traditional
presumption" against retroactivity, we presume that the statute
does not apply to that conduct.
Ibid. See also
Hughes
Aircraft Co. v.
United States ex rel. Schumer, supra, at
946.
353
A 1
Congress has not expressly mandated the temporal reach of §
803(d)(3). Section 803(d)(1) provides that "[i]n any action brought
by a prisoner who is confined [to a correctional facility] ...
attorney's fees ... shall not be awarded, except" as authorized by
the statute. Section 803(d)(3) further provides that "[n]o award of
attorney's fees ... shall be based on an hourly rate greater than
150 percent of the hourly rate established under [18 U. S. C. §
3006A], for payment of court-appointed counsel." Petitioners
contend that this language-particularly the phrase "[i]n
any
action
brought by a prisoner who
is confined," §
803(d)(1) (emphasis added)clearly expresses a congressional intent
that § 803(d) apply to pending cases. They argue that "any" is a
broad, encompassing word, and that its use with "brought," a
pasttense verb, demonstrates congressional intent to apply the fees
limitations to
all fee awards entered after the PLRA became
effective, even when those awards were for services performed
before the PLRA was enacted. They also contend that § 803(d)(3), by
its own terms, applies to all "award[s]"-understood as the actual
court order directing the payment of fees-entered after the
effective date of the PLRA, regardless of when the work was
performed.
The fundamental problem with all of petitioners' statutory
arguments is that they stretch the language of § 803(d) to find
congressional intent on the temporal scope of that section when we
believe that § 803(d) is better read as setting
substantive
limits on the award of attorney's fees. Section 803(d)(1), for
example, prohibits fee awards unless those fees were "directly and
reasonably incurred" in the suit, and unless those fees are
"proportionately related" to, or "directly and reasonably incurred
in enforcing," the relief ordered. 42 U. S. C. § 1997e(d)(1) (1994
ed., Supp. III). Similarly, § 803(d)(3) sets substantive limits by
prohibiting the award
354
of fees based on hourly rates greater than a specified rate. In
other words, these sections define the substantive availability of
attorney's fees; they do not purport to define the temporal reach
of these substantive limitations. This language falls short of
demonstrating a "clear congressional intent" favoring retroactive
application of these fees limitations.
Landgraf, 511 U. S.,
at 280. It falls short, in other words, of the "unambiguous
directive" or "express command" that the statute is to be applied
retroactively.
Id., at 263,280.
In any event, we note that "brought," as used in this section,
is not a past-tense verb; rather, it is the participle in a
participial phrase modifying the noun "action." And although the
word "any" is broad, it stretches the imagination to suggest that
Congress intended, through the use of this one word, to make the
fee limitations applicable to all fee awards. Finally, we do not
believe that the phrase "[n]o award" in § 803(d)(3) demonstrates
congressional intent to apply that section to all fee awards (i.
e., fee payment orders) entered after the PLRA's effective
date. Had Congress intended § 803(d)(3) to apply to all fee orders
entered after the effective date, even when those awards compensate
for work performed before the effective date, it could have used
language more obviously targeted to addressing the temporal reach
of that section. It could have stated, for example, that "No award
entered after the effective date of this Act shall be based on an
hourly rate greater than the ceiling rate."
The conclusion that § 803(d) does not clearly express
congressional intent that it apply retroactively is strengthened by
comparing § 803(d) to the language that we suggested in
Landgraf might qualify as a clear statement that a statute
was to apply retroactively: "[T]he new provisions shall apply to
all proceedings pending on or commenced after the date of
enactment."
Id., at 260 (internal quotation marks omitted).
This provision, unlike the language of the PLRA, unambiguously
addresses the temporal reach of the statute.
355
With no such analogous language making explicit reference to the
statute's temporal reach, it cannot be said that Congress has
"expressly prescribed" § 803(d)'s temporal reach.
Id., at
280.
2
Respondents agree that § 803(d) of the PLRA lacks an express
directive that the statute apply retroactively, but they contend
that the PLRA reveals congressional intent that the fees provisions
apply
prospectively only. That is, respondents insist that
the PLRA's fees provisions demonstrate that they only apply to
cases filed after the effective date of the Act. For respondents,
this congressional intent is evident from a study of the Act's
structure and legislative history.
According to respondents, a comparison of §§ 802 and 803 of the
PLRA leads to the conclusion that § 803(d) should only apply to
cases filed after its enactment. The attorney's fees provisions are
found in § 803 of the PLRA, and, as described above, this section
contains no explicit directive that it should apply to pending
cases. By contrast, § 802addressing "appropriate remedies" in
prison litigationexplicitly provides that it applies to pending
cases: "[This section] shall apply with respect to all prospective
relief whether such relief was originally granted or approved
before, on, or after the date of the enactment of this title." §
802(b)(1), note following 18 U. s. C. § 3626 (1994 ed., Supp. III).
According to respondents, the presence of this express command in §
802, when coupled with § 803's silence, supports the negative
inference that § 803 is
not to apply to pending cases.
Respondents buttress this "negative inference" argument by
reference to the legislative history of the fees provisions.
Respondents contend that when the attorney's fees limitations were
originally drafted, they were in the section that became § 802 of
the PLRA, which at the time contained language making them
applicable to pending cases. Later, the fees provisions were moved
to what be-
356
came § 803 of the PLRA, a section without language making it
applicable to pending cases. Thus, according to respondents, when
Congress moved the fees provisions out of § 802, with its
explicitly retroactive language, it demonstrated its intent to
apply the fees provisions
prospectively only. Brief for
Respondents 15-18.
Respondents' "negative inference" argument is based on an
analogy to our decision in
Lindh v.
Murphy, 521 U. S. 320 (1997). In
Lindh, we considered whether chapter 153 of the newly
enacted Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), 110 Stat. 1214, was applicable to pending cases. In
concluding that chapter 153 does not apply to such cases, we relied
heavily on the observation that chapter 154 of AEDPA includes
explicit language making that chapter applicable to pending cases.
We concluded that "[n]othing ... but a different intent explains
the different treatment." 521 U. S., at 329. This argument carried
special weight because both chapters addressed similar issues:
Chapter 153 established new standards for review of habeas corpus
applications by state prisoners, and chapter 154 created new
standards for review of habeas corpus applications by state
prisoners under capital sentences. Because both chapters
"govern[ed] standards affecting entitlement to relief" in habeas
cases, "[i]f ... Congress was reasonably concerned to ensure that
chapter 154 be applied to pending cases, it should have been just
as concerned about chapter
153." Ibid.
Because §§ 802 and 803 address wholly distinct subject matters,
the same negative inference does not arise from the silence of §
803. Section 802 addresses "[a]ppropriate remedies" in prison
litigation, prohibiting, for example, prospective relief unless it
is "narrowly drawn" and is "the least intrusive means necessary to
correct the violation." § 802(a), 18 U. S. C. § 3626(a)(1)(A) (1994
ed., Supp. III). That section also creates new standards designed
to encourage the prompt termination of prospective relief or-
357
ders, providing, for example, for the "immediate termination of
any prospective relief if the relief was approved or granted in the
absence of a finding by the court that the relief is narrowly
drawn, extends no further than necessary to correct the violation
of the Federal right, and is the least intrusive means necessary to
correct the violation of the Federal right." § 802(a), 18 U. S. C.
§ 3626(b)(2). Section 803(d), by contrast, does not address the
propriety of various forms of relief and does not provide for the
immediate termination of ongoing relief orders. Rather, it governs
the award of attorney's fees. Thus, there is no reason to conclude
that if Congress was concerned that § 802 apply to pending cases,
it would "have been just as concerned" that § 803 apply to pending
cases.
Finally, we note that respondents' reliance on the legislative
history overstates the inferences that can be drawn from an
ambiguous act of legislative drafting. Even if respondents are
correct about the legislative history, the inference that
respondents draw from this history is speculative. It rests on the
assumption that the
reason the fees provisions were moved
was to move them away from the language applying § 802 to pending
cases, when they may have been moved for a variety of other
reasons. This weak inference provides a thin reed on which to rest
the argument that the fees provisions, by negative implication,
were intended to apply prospectively.
B
Because we conclude that Congress has not "expressly prescribed"
the proper reach of § 803(d)(3),
Landgraf, 511 U. S., at
280, we must determine whether application of this section in this
case would have retroactive effects inconsistent with the usual
rule that legislation is deemed to be prospective. The inquiry into
whether a statute operates retroactively demands a commonsense,
functional judgment about "whether the new provision attaches new
legal
358
consequences to events completed before its enactment."
I
d., at 270. This judgment should be informed and guided by
"familiar considerations of fair notice, reasonable reliance, and
settled expectations."
Ibid.
1
For post judgment monitoring performed before the effective date
of the PLRA, the PLRA's attorney's fees provisions, as construed by
respondents, would have a retroactive effect contrary to the usual
assumption that congressional statutes are prospective in
operation. The attorneys in both
Hadix and
Glover had
a reasonable expectation that work they performed prior to
enactment of the PLRA in monitoring petitioners' compliance with
the court orders would be compensated at the pre-PLRA rates as
provided in the stipulated order. Long before the PLRA was enacted,
the plaintiffs were declared prevailing parties, and the parties
agreed to a system for periodically awarding attorney's fees for
post judgment monitoring. The District Court entered orders
establishing that the fees were to be awarded at prevailing market
rates, and specifically set those rates, as relevant here, at $150
per hour. Respondents' counsel performed a specific task-monitoring
petitioners' compliance with the court orders-and they were told
that they would be compensated at a rate of $150 per hour. Thus,
when the lawyers provided these post judgment monitoring services
before the enactment of the PLRA, they worked in reasonable
reliance on this fee schedule. The PLRA, as applied to work
performed before its effective date, would alter the fee
arrangement
post hoc by reducing the rate of compensation.
To give effect to the PLRA's fees limitations, after the fact,
would "attac[h] new legal consequences" to completed conduct.
Landgraf, supra, at 270.
Petitioners contest this conclusion. They contend that the
application of a new attorney's fees provision is "'unquestionably
proper,'" Brief for Petitioners 24 (quoting
359
Landgraf, supra, at 273), because fees questions "are
incidental to, and independent from, the underlying substantive
cause of action." They do not, in other words, change the
substantive obligations of the parties because they are "collateral
to the main cause of action." Brief for Petitioners 24-25 (quoting
Landgraf, 511 U. S., at 277) (internal quotation marks
omitted). Attaching the label "collateral" to attorney's fees
questions does not advance the retroactivity inquiry, however.
While it may be possible to generalize about types of rules that
ordinarily will not raise retroactivity concerns, see,
e.
g., id., at 273-275, these generalizations do not end the
inquiry. For example, in
Landgraf, we acknowledged that
procedural rules may often be applied to pending suits with no
retroactivity problems,
id., at 275, but we also cautioned
that "the mere fact that a new rule is procedural does not mean
that it applies to every pending case,"
id., at 275, n. 29.
We took pains to dispel the "sugges[tion] that concerns about
retroactivity have no application to procedural rules."
Ibid. See also
Lindh v.
Murphy, 521 U. S., at
327-328. When determining whether a new statute operates
retroactively, it is not enough to attach a label
(e. g.,
"procedural," "collateral") to the statute; we must ask whether the
statute operates retroactively.
Moreover, petitioners' reliance on our decision in
Bradley v.
School Bd. of Richmond, 416 U. S. 696 (1974), to
support their argument that attorney's fees provisions can be
applied retroactively is misplaced. In
Bradley, the District
Court had awarded attorney's fees, based on general equitable
principles, to a group of parents who had prevailed in their suit
seeking the desegregation of the Richmond schools. While the case
was pending on appeal, Congress passed a statute specifically
authorizing the award of attorney's fees for prevailing parties in
school desegregation cases. The Court of Appeals held that the new
statute could not authorize fee awards for work performed before
the effective date of the new law, but we reversed, holding that
the
360
fee award in that case was proper. Because attorney's fees were
available, albeit under different principles, before passage of the
statute, and because the District Court had in fact already awarded
fees invoking these different principles, there was no manifest
injustice in allowing the fee statute to apply in that case.
Id., at 720-721. We held that the award of statutory
attorney's fees did not upset any reasonable expectations of the
parties. See also
Landgraf, supra, at 276-279
(distinguishing
Bradley on these same grounds). In this
case, by contrast, from the beginning of these suits, the parties
have proceeded on the assumption that 42 U. S. C. § 1988 would
govern. The PLRA was not passed until well after respondents had
been declared prevailing parties and thus entitled to attorney's
fees. To impose the new standards now, for work performed before
the PLRA became effective, would upset the reasonable expectations
of the parties.
2
With respect to post judgment monitoring performed after the
effective date of the PLRA, by contrast, there is no retroactivity
problem. On April 26, 1996, through the PLRA, the plaintiffs'
attorneys were on notice that their hourly rate had been adjusted.
From that point forward, they would be paid at a rate consistent
with the dictates of the law. After April 26, 1996, any expectation
of compensation at the prePLRA rates was unreasonable. There is no
manifest injustice in telling an attorney performing post judgment
monitoring services that, going forward, she will earn a lower
hourly rate than she had earned in the past. If the attorney does
not wish to perform services at this new, lower pay rate, she can
choose not to work. In other words, as applied to work performed
after the effective date of the PLRA, the PLRA has future effect on
future work; this does not raise retroactivity concerns.
Respondents contend that the PLRA has retroactive effect in this
context because it attaches new legal consequences
361
(a lower pay rate) to conduct completed before enactment. The
preenactment conduct that respondents contend is affected is the
attorney's initial decision to file suit on behalf of the prisoner
clients. Brief for Respondents 29-31. Even assuming,
arguendo, that when the attorneys filed these cases in 1977
and 1980, they had a reasonable expectation that they would be
compensated for post judgment monitoring based on a particular fee
schedule (i.
e., the pre-PLRA, "prevailing market rate"
schedule), respondents' argument that the PLRA affects pre-PLRA
conduct fails because it is based on the assumption that the
attorney's initial decision to file a case on behalf of a client is
an irrevocable one. In other words, respondents' argument assumes
that once an attorney files suit, she must continue working on that
case until the decree is terminated. Respondents provide no support
for this assumption, however. They allude to ethical constraints on
an attorney's ability to withdraw from a case midstream, see Brief
for Respondents 29 ("And finally, it is at that time that
plaintiffs' counsel commit themselves ethically to continued
representation of their clients to ensure that the Constitution is
honored, a course of conduct that cannot lightly be altered"), but
they do not seriously contend that the attorneys here were
prohibited from withdrawing from the case during the post judgment
monitoring stage, see,
e. g., Tr. of Oral Arg. 42-43.
It cannot be said that the PLRA changes the legal consequences of
the attorneys' pre-PLRA decision to file the case.
C
In sum, we conclude that the PLRA contains no express command
about its temporal scope. Because we find that the PLRA, if applied
to post judgment monitoring services performed before the effective
date of the Act, would have a retroactive effect inconsistent with
our assumption that statutes are prospective, in the absence of an
express command by Congress to apply the Act retroactively, we
de-
362
Opinion of SCALIA, J.
cline to do so.
Landgraf, 511 U. S., at 280. With respect
to post judgment monitoring performed after the effective date, by
contrast, there is no retroactive effect, and the PLRA fees cap
applies to such work. Accordingly, the judgment of the Court of
Appeals for the Sixth Circuit is affirmed in part and reversed in
part.
It is so ordered.
JUSTICE SCALIA, concurring in part and concurring in the
judgment.
Our task in this case is to determine the temporal application
of that provision of the Prison Litigation Reform Act of 1995
(PLRA), 42 U. S. C. § 1997e(d)(3) (1994 ed., Supp. III), which
prescribes that "[n]o award of attorney's fees in an action
[brought by a prisoner in which attorney's fees are authorized
under 42 U. S. C. § 1988 (1994 ed., and Supp. II!)] shall be based
on an hourly rate greater than 150 percent of the hourly rate
established under [18 U. S. C. § 3006A (1994 ed., and Supp. III)]
for payment of court-appointed counsel."
I agree with the Court that the intended temporal application is
not set forth in the text of the statute, and that the outcome must
therefore be governed by our interpretive principle that, in
absence of contrary indication, a statute will not be construed to
have retroactive application, see
Landgraf v.
USI Film
Products, 511 U.
S. 244, 280 (1994). But that leaves open the key question:
retroactive in reference to what? The various options in the
present case include (1) the alleged violation upon which the
fee-imposing suit is based (applying the new fee rule to any case
involving an alleged violation that occurred before the PLRA became
effective would be giving it "retroactive application"); (2) the
lawyer's undertaking to prosecute the suit for which attorney's
fees were provided (applying the new fee rule to any case in which
the lawyer was retained before the PLRA became effective would be
giving it "retroactive application");
363
(3) the filing of the suit in which the fees are imposed
(applying the new fee rule to any suit brought before the PLRA
became effective would be giving it "retroactive application"); (4)
the doing of the legal work for which the fees are payable
(applying the new fee rule to any work done before the PLRA became
effective would be giving it "retroactive application"); and (5)
the actual award of fees in a prisoner case (applying the new fee
rule to an award rendered before the PLRA became effective would be
giving it "retroactive application").
My disagreement with the Court's approach is that, in deciding
which of the above five reference points for the retroactivity
determination ought to be selected, it seems to me not much help to
ask which of them would frustrate expectations. In varying degrees,
they
all would. As I explained in my concurrence in
Landgraf, supra, at 286 (opinion concurring in judgments), I
think the decision of which reference point (which "retroactivity
event") to select should turn upon which activity the statute was
intended to regulate. If it was intended to affect primary conduct,
No.1 should govern; if it was intended to induce lawyers to
undertake representation, No.2-and so forth.
In my view, the most precisely defined purpose of the provision
at issue here was to reduce the previously established incentive
for lawyers to work on prisoners' civil rights cases. If the PLRA
is viewed in isolation, of course, its purpose could be regarded as
being simply to prevent a judicial award of fees in excess of the
referenced amount-in which case the relevant retroactivity event
would be the award. In reality, however, the PLRA simply revises
the fees provided for by § 1988, and it seems to me that the
underlying purpose of
that provision must govern its
amendment as well-which purpose was to provide an appropriate
incentive for lawyers to work on (among other civil rights cases)
pris-
364
Opinion of GINSBURG, J.
oner suits.1 That being so, the relevant retroactivity event is
the doing of the work for which the incentive was offered.2 All
work rendered in reliance upon the fee assurance contained in the
former § 1988 will be reimbursed at those rates; all work rendered
after the revised fee assurance of the PLRA became effective will
be limited to the new rates. The District Court's announcement that
it would permit future work to be billed at a higher rate operated
in futuro; it sought to regulate future conduct rather than
adjudicate past. It was therefore no less subject to revision by
statute than is an injunction.
Pennsylvania v.
Wheeling & Belmont Bridge Co., 18 How. 421, 436
(1856).
For these reasons, I concur in the judgment of the Court and
join all but Part II-B of its opinion.
JUSTICE GINSBURG, with whom JUSTICE STEVENS joins, concurring in
part and dissenting in part.
I agree with the Court's determination that § 803(d) of the
Prison Litigation Reform Act of 1995, (PLRA or Act), 42 U. S. C. §
1997e(d) (1994 ed., Supp. III), does not "limit fees for post
judgment monitoring performed before the [Act's] effective date,"
ante, at 347, and with much of the reasoning set out in
Parts I, II-A-l, and II-B-l of the Court's opinion. I disagree,
however, with the holding that § 803(d) "limits attorney's fees
with respect to post judgment monitoring services performed after
... the effective date."
Ibid.
1 Although the fees awarded under § 1988 are payable to the
party rather than to the lawyer, I think it clear that the purpose
of the provision was to enable the civil rights plaintiffs to offer
a rate of compensation that would attract attorneys.
2 I reject JUSTICE GINSBURG'S contention that the retroactivity
event should be the attorney's undertaking to represent the civil
rights plaintiff. The fees are intended to induce not merely
signing on (no time can be billed for that) but actually doing the
legal work. Like the Court, I do not think it true that an attorney
who has signed on cannot terminate his representation; he assuredly
can if the client says that he will no longer pay the hourly fee
agreed upon.
365
I do not find in the PLRA's text or history a satisfactory basis
for concluding that Congress meant to order a midstream change,
placing cases commenced before the PLRA became law under the new
regime. I would therefore affirm in full the judgment of the Court
of Appeals for the Sixth Circuit, which held § 803(d) inapplicable
to cases brought to court prior to the enactment of the PLRA. To
explain my view of the case, I retread some of the factual and
analytical ground treated in more detail in the Court's
opinion.
I
On April 26, 1996, President Clinton signed the PLRA into law.
Section 803(d) of the Act, governing attorney's fees, provides:
"(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 section 1988 of this title, 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 section 1988 of this
title; 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
366
Opinion of GINSBURG, J.
than 150 percent of the hourly rate established under section
3006A of title 18 for payment of court-appointed counsel." 42 U. S.
C. § 1997e(d) (1994 ed., Supp. III).
At issue here is whether § 803(d) governs post-April 26, 1996,
fee awards in two lawsuits commenced before that date. In
Glover v.
Johnson, 478 F. Supp. 1075 (ED Mich. 1979),
a class of female Michigan inmates filed an action under 42 U. S.
C. § 1983 (1994 ed., Supp. III) against various Michigan prison
officials (State) in 1977; the
Glover plaintiffs alleged
principally that they were denied vocational and educational
opportunities afforded their male counterparts, in violation of the
Equal Protection Clause. Ruling in plaintiffs' favor, the District
Court entered a remedial order and retained jurisdiction over the
case pending defendants' substantial compliance with that order.
See
Glover v.
Johnson, 510 F. Supp. 1019, 1020 (ED
Mich. 1981). Under a 1985 ruling governing fee awards, plaintiffs'
counsel applied for fees and costs twice yearly. See
Hadix
v.
Johnson, 143 F.3d
246,
248 (CA6 1998).
In
Hadix v.
Johnson, a class of male Michigan
inmates filed a § 1983 action against the State in 1980, alleging
that the conditions of their confinement violated the First,
Eighth, Ninth, and Fourteenth Amendments. In 1985, the parties
entered into a consent decree governing sanitation, health care,
fire safety, overcrowding, court access, and other aspects of
prison life. The District Court retained jurisdiction over the case
pending substantial compliance with the decree. Plaintiffs'
attorneys remain responsible for monitoring compliance with the
decree. In 1987, the District Court entered an order governing the
award of fees and costs to plaintiffs' counsel for compliance
monitoring. See
id., at 249.
Counsel for plaintiffs in both cases filed fee applications for
compensation at the court-approved market-based level of $150 per
hour for work performed between January 1, 1996, and June 30,1996.
See App. to Pet. for Cert. 27a, 33a. The
367
State objected, arguing that § 803(d) limits all fees awarded
after April 26, 1996, in these litigations to $112.50 per hour.
I d., at 34a. In separate but nearly identical opinions, the
District Court refused to apply § 803(d)'s fee limitation to work
performed before the PLRA's effective date, see
id., at 28a,
n. 1;
id., at 34a, n. 1, but applied the limitation to all
work performed thereafter, see
id., at 31a, 41a.
Relying on its recent decision in
Glover v.
Johnson,
138 F. 3d 229 (1998), the Sixth Circuit affirmed the District
Court's refusal to apply § 803(d) to work completed preenactment.
See 143 F. 3d, at 248. The appeals court reversed the District
Court's judgment, however, to the extent that it applied § 803(d)
to work performed postenactment. See
id., at 255-256.
Unpersuaded that Congress intended the PLRA attorney's fees
provisions to apply retroactively, the panel held that § 803(d) "is
inapplicable to cases brought before the statute was enacted
whether the underlying work was performed before or after the
enactment date of the statute."
Ibid.
II
In
Landgraf v.
USI Film Products, 511 U. S. 244 (1994), we
reaffirmed the Court's longstanding presumption against retroactive
application of the law. "If [a] statute would operate
retroactively," we held, "our traditional presumption teaches that
it does not govern absent clear congressional intent favoring such
a result."
Id., at 280.
Emphasizing that § 803(d) applies to "any action brought by a
prisoner who is confined," the State insists that the statute's
plain terms reveal Congress' intent to limit fees in pending as
well as future cases. See Brief for Petitioners 14-15 (emphases
deleted; internal quotation marks omitted). As the Court
recognizes, however, § 803(d)'s "any action brought" language
refers to the provision's substantive scope, not its temporal
reach, see
ante, at 353-354; "any" appears in the text only
in proximity to provisions identifying the
368
Opinion of GINSBURG, J.
law's substantive dimensions.1 Had Congress intended that §
803(d) apply retroactively, it might easily have specified, as the
Court suggests, that all postenactment awards shall be subject to
the limitation, see
ante, at 354, or prescribed that the
provision "shall apply in all proceedings pending on or commenced
after the date of enactment of this Act." Congress instead left
unaddressed § 803(d)'s temporal reach.
Comparison of § 803(d)'s text with that of a neighboring
provision, § 802(b)(1) of the PLRA, is instructive for the
retroactivity question we face. Section 802(b)(1), which governs
"appropriate remedies" in prison litigation, applies expressly to
"all prospective relief whether such relief was originally granted
or approved before, on, or after the date of the enactment of this
title." 110 Stat. 1321-70, note following 18 U. S. C. § 3626.
"Congress [thus] saw fit to tell us which part of the Act was to be
retroactively applied," i.
e., § 802.
Jensen v.
Clarke, 94 F.3d
1191, 1203
(CA8 1996). While I agree with the Court that
the negative implication created by these two provisions is not
dispositive, see
ante, at 357, Congress' silence
nevertheless suggests that § 803(d) has no carryback thrust.
Absent an express statutory command respecting retroactivity,
Landgraf teaches, the attorney's fees provision should not
be applied to pending cases if doing so would "have retroactive
effect." 511 U. S., at 280. As the Court recognizes, see
ante, at 360, application of § 803(d) to work performed
before the PLRA's effective date would be impermissibly
retroactive. Instead of the court-approved
1 Section 803(d) is thus unlike the unenacted provision
discussed in
Landgraf v.
USI Film Products, 511 U. S. 244, 260
(1994), which would have made the statute at issue in that case
applicable "'to all proceedings pending on or commenced after'" the
effective date. Because this language would have linked the word
"all" directly to the statute's temporal scope, we recognized that
it might have qualified as a clear statement of retroactive effect.
The word "any" is not similarly tied to the temporal scope of the
PLRA, however, and so the inference suggested in the
Landgraf discussion is not permissible here.
369
market-based fee that attorneys anticipated for work performed
under the old regime, counsel would be limited to the new statutory
rate. We long ago recognized the injustice of interpreting a
statute to reduce the level of compensation for work already
performed. See
United States v.
Heth, 3 Cranch 399,
408-409 (1806) (precluding, as impermissibly retroactive,
application of a statute reducing customs collectors' commissions
to customs collected before enactment, even when the commission was
due after the statute's effective date).
III
In my view, § 803(d) is most soundly read to cover all, and
only, representations undertaken after the PLRA's effective date.
Application of § 803(d) to representations commenced before the
PLRA became law would "attac[h] new legal consequences to [an]
even[t] completed before [the statute's] enactment"; hence the
application would be retroactive under
Landgraf 511 U. S.,
at 270. The critical event effected before the PLRA's effective
date is the lawyer's undertaking to prosecute the client's civil
rights claim. Applying § 803(d) to pending matters significantly
alters the consequences of the representation on which the lawyer
has embarked.2 Notably, attorneys engaged before passage of the
PLRA have little leeway to alter their conduct in response to the
new legal regime; an attorney who initiated a prisoner's rights
suit before April 26, 1996, remains subject to a professional
obligation to see the litigation through to final disposition. See
ABA Model Rule of Professional Conduct 1.3, and Comment [3] (1999)
("[A] lawyer should carry
2 An attorney's decision to invest time and energy in a civil
rights suit necessarily involves a complex balance of factors,
including the likelihood of success, the amount of labor necessary
to prosecute the case to completion, and the potential recovery.
Applying § 803(d) to PLRA representations ongoing before April 26,
1996, effectively reduces the value of the lawyer's prior
investment in the litigation, and disappoints reasonable reliance
on the law in place at the time of the lawyer's undertaking.
370
Opinion of GINSBURG, J.
through to conclusion all matters undertaken for a client.").
Counsel's actions before and after that date are thus
"inextricab[ly] part of a course of conduct initiated prior to the
law."
Inmates of D. C.
Jail v.
Jackson,
158 F.3d
1357, 1362
(CADC 1998) (Wald, J., dissenting).
While the injustice in applying the fee limitations to pending
actions may be more readily apparent regarding work performed
before the PLRA's effective date, application of the statute to
work performed thereafter in pending cases also frustrates
reasonable reliance on prior law and courtapproved market rates.
Consider, for example, two attorneys who filed similar prison
reform lawsuits at the same time, pre-PLRA. Both attorneys
initiated their lawsuits in the expectation that, if they
prevailed, they would earn the market rate anticipated by pre-PLRA
law. In one case, the lawsuit progressed swiftly, and
labor-intensive pretrial discovery was completed before April 26,
1996. In the other, the suit lagged through no fault of plaintiff's
counsel, pending the court's disposition of threshold motions, and
the attorney was unable to pursue discovery until after April 26,
1996.3 Both attorneys have prosecuted their claims with due
diligence; both were obliged, having accepted the representations,
to perform the work for which they seek compensation. There is
scarcely greater injustice in denying pre-PLRA compensation for
pretrial discovery in the one case than the other. Nor is there any
reason to think that Congress intended these similarly situated
attorneys to be treated differently.
The Court avoids a conclusion of retroactivity by dismissing as
an unsupported assumption the attorneys' assertion of an obligation
to continue their representations through to
3 If counsel's conduct caused delay or protraction, the court
could properly exercise discretion to deny or reduce the attorney's
fee. See 42 U. S. C. § 1988(b) (1994 ed., Supp. III) ("[T]he court,
in its discretion, may allow ... a reasonable attorney's
fee.").
371
final disposition. See
ante, at 361. It seems to me,
however, that the assertion has secure support.
Like the ABA's Model Rules, the Michigan Rules of Professional
Conduct (1999), which apply to counsel in both
Hadix and
Glover, see Rule 83.20(j), provide that absent good cause
for terminating a representation, "a lawyer should carry through to
conclusion all matters undertaken for a client." Rule 1.3, Comment.
It is true that withdrawal may be permitted where "the
representation will result in an unreasonable financial burden on
the lawyer," Rule 1.16(b)(5), but explanatory comments suggest that
this exception is designed for situations in which "the client
refuses to abide by the terms of an agreement relating to the
representation, such as an agreement concerning fees," Rule 1.16,
Comment. Consistent with the Michigan Rules, counsel for
petitioners affirmed at oral argument their ethical obligation to
continue these representations to a natural conclusion. See Tr. of
Oral Arg. 43 ("[Continuing the representation] does involve ethical
concerns certainly, especially in the[se] circumstance[s]."). There
is no reason to think counsel ethically could have abandoned these
representations in response to the PLRA fee limitation, nor any
basis to believe the trial court would have permitted counsel to
withdraw. See Rule 1.16(c) ("When ordered to do so by a tribunal, a
lawyer shall continue representation."). As I see it, the
attorneys' pre-PLRA pursuit of the civil rights claims thus created
an obligation, enduring post-PLRA, to continue to provide effective
representation.
Accordingly, I conclude that the Sixth Circuit soundly resisted
the "sophisticated construction," 143 F.3d, at 252, that would
split apart, for fee award purposes, a constant course of
representation. "[T]he triggering event for retroactivity
purposes," I am persuaded, "is when the lawyer undertakes to
litigate the civil rights action on behalf of the client."
Inmates of D. C.
Jail, 158 F. 3d, at 1362 (Wald, J.,
dissenting).
372
Opinion of GINSBURG, J.
***
Landgrafs lesson is that Congress must speak clearly when
it wants new rules to govern pending cases. Because § 803(d)
contains no clear statement on its temporal reach, and because the
provision would operate retroactively as applied to lawsuits
pending on the Act's effective date, I would hold that the fee
limitation applies only to cases commenced after April 26,
1996.
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