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Tenth Circuit Orders Attorney Fee Do-Over in PLRA Settlement

March 28, 2024 | Posted in : Fee Issues on Appeal

A recent Law 360 story by Ryan Harroff, “10th Circ. Orders Atty Fee Redo in Excessive Force Settlement”, reports that a Tenth Circuit panel has ruled that attorney fees prisoners can recover are not capped by federal law, saying that a Kansas prisoner should have gotten more money in his excessive force settlement with the state's highway patrol.

According to the three-judge panel's Tuesday opinion, the Kansas Highway Patrol officers and the other affiliated law enforcement officials named in Samuel Lee Dartez II's excessive force suit failed to establish that their offer of judgment did not waive the Prisoner Litigation Reform Act's limits on hourly attorney fee rates or the total value of fee awards in prisoner suits. The officers similarly did not establish that their offer waived the law's mandate that Dartez contribute to his lawyers' fees himself.

The panel affirmed two aspects of the lower court's ruling and reversed the imposition of the hourly rate cap, stating that all statutory obligations and limits for the fee award had been waived by the parties.

The majority said the officers' offer of judgment was ambiguous as to whether it waived the PLRA's effect on the fee award, which totaled more than $576,000 in the end. The majority said ambiguity in the offer of judgment must cut against the law enforcement officials because they were the ones who put it together.

U.S. Circuit Court Judge Allison H. Eid wrote a separate concurring opinion stating that she agreed with affirming the lower court's determinations that the statutory ceiling on Dartez's fee award and his obligation to contribute do not apply under the offer of judgment. She also agreed with reversing the imposition of an hourly rate cap on his fee calculation. But she disagreed with the majority that the offer of judgment was ambiguous.

According to Judge Eid, the offer of judgment did not actually waive the PLRA. The lower court's decision should be affirmed in part while reversing the portion that imposed the hourly rate cap, she said, as the officers failed to properly argue for their interpretation of the offer of judgment's wording.

Central to the dispute is the phrase "fees and costs," according to the panel. The offer of judgment states Dartez will get $60,000 "plus reasonable attorneys' fees and costs allowed by law, if any," and whether the words "allowed by law" apply to both the fees and the costs or just the costs is the major sticking point that led Judge Eid to disagree with the majority.

The majority said that the lower court relied on what is called the "last-antecedent rule," invoked by the U.S. Supreme Court's 2003 ruling in Barnhart v. Thomas , which reversed a Third Circuit ruling for misreading part of the Social Security Act to stretch certain requirements for benefit claimants beyond their intended scope. By that standard, the majority said "allowed by law" only applies to costs for Dartez's case, not both the fees and the costs.

Judge Eid said the last-antecedent rule does not work that way for the offer of judgment because "fees and costs" is generally understood to refer to both fees and costs together when used in a legal context. She stated that the majority and the district court were wrong to say that the offer of judgment can be read as honoring legal limits on Dartez's costs while waiving those limits on his fees.

"The phrase 'fees and costs' is best understood as a unified phrase, not as two items in a short list," Judge Eid said. "It is so ubiquitous a phrase that it scarcely warrants citation."

All three judges agreed that whether fees and costs are separate or joined does not actually weigh on their decision in Dartez's case, however, because the officers did not actually argue with the lower court's reading of the phrase.

David Seely, counsel for Dartez, told Law360 Wednesday that he was "very pleased to get that ruling," and he thought both opinions served as an "interesting grammar lesson." Overall, he said he hopes the Tenth Circuit's ruling will push government entities to more directly spell out their intentions in the future.

"If lawyers representing a governmental entity want to have the restrictions contained in the Prisoner Litigation Reform Act apply to an offer of judgment, they need to be very clear about that and do so expressly rather than relying on what are, at best, vague and ambiguous terms and then coming in and saying that the PLRA precludes the recovery of the attorneys fees that are referred to in the offer of judgment," Seely said.