Earnest Woods, II v. Santos Cervantes, et al

Filing

Filed opinion (STEPHEN R. REINHARDT, JOHN T. NOONAN and MARY H. MURGUIA) We hold that the fee cap in (d)(2) does not apply to attorney s fees earned in conjunction with an appeal in which prison officials seek unsuccessfully to reverse a verdict obtained by the prisoner before the district court. We grant Woods motion for attorney s fees on appeal and refer this matter to the Appellate Commissioner to determine the amount of such fees, as well as the amount of reimbursable costs. Motion GRANTED. MURGUIA, Circuit Judge, dissenting: . [8706792] [09-16113, 09-15548]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

EARNEST CASSELL WOODS, II,
Plaintiff-Appellee,

No. 09-16113

v.

D.C. No.
2:04-cv-01225LKK-GGH

TOM L. CAREY , Warden; T.
DICKENSON ,
Defendants,

OPINION

and
SANTOS CERVANTES,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, Senior District Judge, Presiding
Argued and Submitted
April 18, 2012—San Francisco, California
Filed July 17, 2013
Before: Stephen Reinhardt, John T. Noonan,
and Mary H. Murguia, Circuit Judges.
Opinion by Judge Reinhardt;
Dissent by Judge Murguia

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SUMMARY*

Prisoner Civil Rights/Attorney’s Fees
Granting a prisoner’s motion for attorney’s fees on
appeal, the panel held that the 150 percent cap on attorney’s
fees set forth in the Prison Litigation Reform Act, 42 U.S.C.
§ 1997e(d)(2), does not apply to fees incurred on appeal by a
prisoner who successfully defends the verdict that he obtained
in the district court.
Judge Murguia dissented, stating that the majority
decision runs counter to the plain meaning of 42 U.S.C.
§ 1997e(d)’s text, and that the opinion has created a circuit
split. See Riley v. Kurtz, 361 F.3d 906, 916–18 (6th Cir.
2004) (holding § 1997e(d)(2)’s 150% cap includes any
attorney’s fees a prisoner incurs defending a monetary
judgment on appeal).

COUNSEL
Jeffrey T. Renz, Montana Defender Project, University of
Montana School of Law, Missoula, Montana, for PlaintiffAppellee.
Jennifer Marquez, Longyear, O’Dea & Lavra, LLP,
Sacramento, California, for Defendant-Appellant.

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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OPINION
REINHARDT, Circuit Judge:
In civil rights cases, our normal rule provides for an
award of appellate attorney’s fees to a prevailing party who
successfully defends a verdict won in the district court. Hutto
v. Finney, 437 U.S. 678, 693–98 (1978); Corder v. Gates,
104 F.3d 247, 249 (9th Cir. 1996). The plaintiff-appellee in
this case, Earnest Cassell Woods II, qualifies as a prevailing
party who would ordinarily be entitled to an award of
attorney’s fees from a defendant who unsuccessfully appealed
such a verdict. Because Woods is a prisoner, however, his
award is subject to any applicable limiting provisions of the
Prison Litigation Reform Act (“PLRA”), 42 U.S.C.
§ 1997e(d).
The defendant-appellant, Santos Cervantes, argues that
Woods’ request for attorney’s fees is limited by § 1997e(d)(2)
(hereinafter “§ (d)(2)”) of the PLRA. This provision imposes
a cap on the amount of attorney’s fees that a prisoner can
recover from defendant prison officials in certain
circumstances. The cap is 150 percent of the monetary
judgment. The cap applies to attorney’s fees incurred in
conjunction with obtaining the award of a monetary
judgment. We have held that it does not apply to attorney’s
fees incurred in obtaining injunctive (or other non-monetary)
relief. Dannenberg v. Valadez, 338 F.3d 1070, 1074–75 (9th
Cir. 2003). In Dannenberg, we held that the fee cap applied
only to “the portion of total fees that was incurred solely in
order to obtain money damages.” Id. at 1074. Here, we
follow Dannenberg and hold that the cap in § (d)(2) does not
apply to fees incurred on appeal by a prisoner who
successfully defends the verdict that he obtained in the

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district court. In other words, the § (d)(2) cap applies only to
fees incurred in securing the judgment in the district court
and not to fees incurred in defending the judgment on appeal.
BACKGROUND
Recently, we affirmed a jury verdict awarding Woods
$1,500 in compensatory and punitive damages against
Cervantes, an Appeals Coordinator at the California State
Prison, Solano. The jury had found that Cervantes violated
Woods’ Eighth Amendment right to be free from cruel and
unusual punishment by repeatedly screening out Woods’
medical grievances, causing him to undergo pain and
suffering for more than a year as the result of his inability to
obtain dental care necessary to fix his broken partial dentures.
Cervantes appealed, arguing that the district court had erred
in denying him qualified immunity. Cervantes also asked this
Court to set aside the $1,000 punitive damages award because
it was “unsupported by a showing of evil motive or intent.”
We rejected both of Cervantes’ arguments and affirmed the
judgment in a memorandum disposition. Woods v. Carey,
488 F. App’x 194, 196 (9th Cir. 2012).
Because Woods was pro se before the district court, no
attorney’s fees were sought in connection with the award of
judgment. On appeal, Woods was represented by counsel.
After we rejected Cervantes’ challenge to the verdict, Woods
filed a timely motion for attorney’s fees on appeal under
42 U.S.C. § 1988(b). He requested $16,800 in attorney’s fees
and $521.09 in costs.1 Section 1988(b) provides that, “[i]n

1

Costs are also in dispute. Cervantes argues that W oods cannot recover
costs because he failed to file a bill of costs in compliance with Ninth
Circuit Rule 39 and 28 U.S.C. § 1920. W oods, however, is not requesting

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any action or proceeding to enforce a provision of section[]
[1983] . . . the court, in its discretion, may allow the
prevailing party [] a reasonable attorney’s fee as part of the
costs.” 42 U.S.C. § 1988(b). Cervantes concedes that Woods
qualifies as a prevailing party. Cervantes argues, however,
that he need pay only $2,250 (150 percent of the judgment)
of Woods’ attorney’s fees because the PLRA fee cap
provision applies to fees incurred defending a monetary
judgment on appeal.2 § 1997e(d)(2).
The PLRA attorney’s fees provisions provide, in relevant
part:
(d) Attorney’s fees
(1) In any action brought by a prisoner who is
confined to any jail, prison, or other correctional
taxable costs under § 1920 and therefore did not need to file a bill of costs.
He requests fees and expenses under 42 U.S.C. § 1988, which allows for
recovery of reasonable out-of-pocket expenses that “would normally be
charged to a fee paying client.” Harris v. Marhoefer, 24 F.3d 16, 19 (9th
Cir. 1994) (quoting Chalmers v. City of Los Angeles, 796 F.2d 1205, 1216
n.7 (9th Cir. 1986)). Expenses normally charged to fee-paying clients
include “photocopying, paralegal expenses, and travel and telephone
costs.” Thornberry v. Delta Air Lines Inc., 676 F.2d 1240, 1244 (9th Cir.
1982). Accordingly, W oods can recover any such funds he may have
reasonably expended. W e refer this matter to the Appellate Commissioner
to calculate the amount of costs that should be awarded.
2

Cervantes argues that a lodestar analysis is unnecessary because the
award is capped so low. However, he requests that the panel allow him
to file supplemental briefing on the lodestar analysis in the event it decides
that the fee cap does not apply. Because we decide only the legal question
and refer the calculation of the appropriate award of attorney’s fees to the
Appellate Commissioner, Cervantes may brief the lodestar analysis
question before the Commissioner. See Ninth Circuit Rule 27-7.

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facility, in which attorney’s fees are authorized [],
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.

42 U.S.C. § 1997e(d)(1)–(2).
Although our prior decision in Dannenberg v. Valadez,
explained that § (d)(2) was limited to those fees “incurred for
the sole purpose of securing the monetary judgment,”
338 F.3d 1070, 1075 (9th Cir. 2003), we have not previously
decided whether attorney’s fees on appeal incurred in order

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to preserve a district court’s award of damages against a
prison official are subject to the 150 percent statutory cap.
DISCUSSION
I.
Woods and Cervantes dispute whether § (d)(2) limits the
amount that Woods may recover from the defendant for
attorney’s fees incurred in defending his judgment on appeal
to 150 percent of the monetary relief awarded to him at trial.3
We begin our analysis as one of statutory interpretation.
Even so, because this is not the first time our court has been
asked to determine the scope of § (d)(2), our analysis must
also take into account our prior decision in Dannenberg.
If “the statutory language provide[d] a clear answer,” our
task would come to an end. United States v. Harrell,
637 F.3d 1008, 1010 (9th Cir. 2011) (quoting Hughes Aircraft
Co. v. Jacobson, 525 U.S. 432, 438 (1999)). “If the statute’s
terms are ambiguous, [however,] we may use canons of
construction, legislative history, and the statute’s overall
purpose to illuminate Congress’s intent.” Jonah R. v.
Carmona, 446 F.3d 1000, 1005 (9th Cir. 2006). “A statute is
ambiguous if it ‘gives rise to more than one reasonable
interpretation.’” DeGeorge v. U.S. Dist. Ct. for Cent. Dist. of

3

W oods argues in the alternative that if the PLRA does limit the amount
of attorney’s fees that can be assessed against Cervantes in this case, it
violates the Equal Protection Clause because there is no rational basis that
justifies preventing prisoner-appellees, like W oods, from obtaining full
appellate attorney’s fees. W e do not reach the constitutional argument
because we hold that § (d)(2) does not apply to W oods’ appellate
attorney’s fees as a matter of statutory interpretation.

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Cal., 219 F.3d 930, 939 (9th Cir. 2000) (quoting A–Z Int’l v.
Phillips, 179 F.3d 1187, 1192 (9th Cir. 1999)).
The language used in § (d)(2) is ambiguous with respect
to the circumstances under which the fee cap is applicable.
The section states: “Whenever a monetary judgment is
awarded in an action [the fee cap shall be applicable].” This
section could be interpreted to mean either (1) the fee cap
applies to attorney’s fees awarded only in conjunction with
the obtaining of a monetary judgment—an award that occurs
only once in the course of an action, following summary
judgment or trial before the district court, or (2) the fee cap
applies to any attorney’s fees that are awarded for any reason
during the course of an action in which a monetary judgment
has been awarded by the district court.4 Woods urges the
former construction of the statute; Cervantes, the latter. Both
are “reasonable interpretation[s]” of the statutory language.
DeGeorge, 219 F.3d at 939 (citations omitted).
II.
In Dannenberg v. Valadez, we rejected the defendant’s
interpretations of § (d)(2)—that is, we rejected the application
of the fee cap to fees awarded for any reason during the
course of an action in which a monetary judgment has been
awarded. 338 F.3d 1070 (9th Cir. 2003). Instead, we limited
4

T he dissent would adopt this latter interpretation with one
adjustment— the addition of the word only following “in which.” This
addition is apparently necessary to make the dissent’s construction of
§ (d)(2) consistent with Dannenberg v. Valadez, 338 F.3d 1070 (9th Cir.
2003), discussed below. Nothing in the statute, however, supports the
limitation that the dissent urges— to cases in which only monetary relief
is awarded in the district court. Nor does anything in Dannenberg support
such an interpretation.

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the applicability of the fee cap to those fees awarded only in
conjunction with the obtaining of a monetary judgment. Id.
at 1074–75. We held that the fee cap does not apply to
attorney’s fees incurred in securing non-monetary relief when
a prisoner is awarded both a monetary judgment and a
declaratory judgment or an injunction in the same proceeding.
Id.
In so holding, we looked to the whole of § 1997e(d) and
construed § (d)(2) in a manner that would be consistent with
§ (d)(1). Id. at 1074 (citing United States v. Fiorillo,
186 F.3d 1136, 1153 (9th Cir. 1999) (“statutes are to be
interpreted as a whole” and “[o]ne provision of a statute
should not be interpreted in a manner that renders other
sections of the same statute ‘inconsistent, meaningless or
superfluous.’”) (citation omitted)). We reasoned that in a
case in which the court ordered both monetary and nonmonetary relief, it would be inconsistent with § (d)(1), which
provides for an amount of attorney’s fees “proportionately
related to the court-ordered relief,” to essentially ignore the
attorney’s efforts in pursuing the non-monetary relief by
limiting the fee award to 150% of the monetary judgment.
Dannenberg, 338 F.3d at 1074. Thus, we held that the fee
cap applied only to those fees “incurred for the sole purpose
of securing the monetary judgment.” Id. at 1075.
Our conclusion in Dannenberg, that § (d)(2) applies only
to those fees “incurred for the sole purpose of securing the
monetary judgment,” is the proper interpretation of that
provision and one we must follow here. Just as Dannenberg
held that it would be inconsistent with § (d)(1) to apply the
fee cap to attorney’s fees incurred for securing non-monetary
relief, it would likewise be inconsistent with § (d)(1) to apply
the fee cap to attorney’s fees that are awarded, not in

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connection with securing the monetary judgment, but for
services performed in the court of appeals to defeat the
defendant’s attempt to overturn the district court’s verdict.
Not only does this interpretation follow from
Dannenberg, but it is also the more logical of the two
proposed readings of the statutory text. Throughout the
course of an action, courts may award fees on multiple
occasions, but only the district court awards “a monetary
judgment” and then only on one occasion—either after
summary judgment or after a verdict in the prisoner’s favor.
§ 1997e(d)(2). Furthermore, the statute uses the present
tense—“[w]henever a monetary judgment is awarded”—
meaning the point in the course of an action at which the
monetary judgment is awarded, rather than in any case in
which a monetary judgment has been awarded. Id. Thus,
§ (d)(2), applies to the limited circumstance of attorney’s fees
awarded in conjunction with securing “a monetary
judgment,” not to fees for services performed in the court of
appeals.
III.
The holding we reach here furthers the purposes of the
PLRA as intended by Congress. First, it ensures that
prisoners who have prevailed on a constitutional claim before
the district court will not lose the relief that they have been
awarded because they cannot secure counsel on appeal.
Congress enacted the PLRA to deter frivolous prisoner
lawsuits that needlessly wasted judicial resources and to
provide for their dismissal at an early stage. Madrid v.
Gomez, 190 F.3d 990, 996 (9th Cir. 1999); 141 Cong. Rec.
S14413 (daily ed. Sept. 27, 1995). It did so in part by seeking
to limit the number of prisoner claims that are filed. “A

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substantial portion of the judiciary’s costs related to these
types of cases is incurred in the initial filing and review stage
prior to any dismissal.” Judicial Impact Office, Violent
Criminal Incarceration Act of 1995, H.R. 667 (1995).
Congress, therefore, sought to have frivolous prisoner actions
dismissed “at an earlier part in the process” and enacted
disincentives to litigating frivolous claims, such as filing fees
and caps on attorney’s fees, that would “affect a prisoner’s
decision to file the action” in the first place. Id.
Congress did not, however, intend to discourage the
collection of awards in those comparatively few meritorious
cases in which the district court had found that the prisoner’s
constitutional rights had been violated and that the prisoner
was entitled to collect damages for that violation.5 The
majority of these actions result in low-damage awards for the
prisoner,6 but can affect substantial change in the prison
conditions or prisoner treatment. If a prison official appeals
a verdict in the prisoner’s favor, the prisoner must be able to
defend the appeal in order to collect the damages he was

5

The category of cases to which our holding applies is an extremely
small percentage of the total number of prisoner suits filed. For example,
out of the 55,376 prisoner suits that ended in 2000, only 10.5% went to
trial, and of those, a total of 77 resulted in victories for the prisoner.
Margo Schlanger, Inmate Litigation, 116 H ARV . L. R EV . 1555, 1706 n.158
(2003). That is a success rate of 0.1% of the total number of suits filed
and a victory rate of 13% for those prisoner suits ending in trial. See id.
6

“[T]he mean damages for cases won at trial by inmate civil rights
plaintiffs was $18,800, and the median was a mere $1000.” Schlanger,
supra note 4, at 1603. The cause of such low damage awards is not that
the constitutional violations suffered are not egregious, but rather
explained by traditional tort principles because prisoners are incarcerated
they have “no (or very low) lost wages and no medical expenses.” Id. at
1622.

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awarded and to help remedy the unconstitutional practices.
Unlike the filing of new cases, the appeal is not initiated by
the prisoner. The appeal is brought by the prison official and
the prisoner finds himself in the position of being required to
defend the verdict to which the district court found that he
was entitled. Although a huge volume of prisoner cases is
filed, a volume that Congress sought to diminish, prisoners
obtain an award of monetary damages in relatively few cases.
Thus, the number of prison official appeals is small. While
Congress meant to discourage the filing of § 1983 claims by
prisoners because there were so many unmeritorious cases, it
did not seek to compel those comparatively few prisoners
with meritorious claims to forfeit their monetary awards by
rendering the prisoners unable to secure counsel to defend the
judgment to which the district court found them to be entitled.
The second way in which our holding furthers the purpose
of the PLRA is that it promotes judicial economy. The
availability of attorney’s fees on appeal will save judicial
resources by discouraging defendants from frivolously
appealing judgments in prisoners’ cases. If we were to hold
to the contrary, defendants would always have an incentive to
appeal monetary judgments in the prisoners’ favor—no
matter how small—because they would not stand to lose
anything except the time of staff attorneys who are employed
by the state for the purpose of handling lawsuits against
them.7 That is, if we were to hold that the fee cap applies to
appellate fees, defendants facing the choice of whether to

7
As we noted in our earlier published opinion in this case, the
defendants in prisoner litigation “are ordinarily institutional officials or
employees, and are represented by the Attorney General or other counsel
regularly retained by the governmental entitles involved.” Woods v.
Carey, 684 F.3d 934, 940 n.6 (9th Cir. 2012).

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appeal would not risk having to pay prisoners’ attorney’s
fees, and, therefore, would be more inclined to take an appeal,
no matter how small the prisoner’s monetary damage award
below. Such unnecessary appeals needlessly burden the
judicial system—the exact opposite of Congress’ goal in
enacting the PLRA.8

8

The dissent points out that our conclusion conflicts with the outcome
reached by the Sixth Circuit. The dissent fails to acknowledge, however,
that the Sixth Circuit was not bound to follow our earlier decision in
Dannenberg v. Valadez, 338 F.3d 1070 (9th Cir. 2003).
More important, although a circuit split is not desirable, we are not
required to follow the initial circuit to decide an issue if our own careful
analysis of the legal question leads us to conclude that Congress intended
the contrary result. Zimmerman v. Oregon Dep’t of Justice, 170 F.3d
1169, 1184 (9th Cir. 1999). W hen there is a “compelling reason to do so”
we do not hesitate to create a circuit split, even when several circuits have
addressed the question and all reached a result contrary to our own.
Leavitt v. Arave, 383 F.3d 809, 825 (9th Cir. 2004) (disagreeing with six
circuits to create a circuit split); see also In re Penrod, 611 F.3d 1158,
1160–61 (9th Cir. 2010) (disagreeing with eight circuits to create a circuit
split).
M oreover, this opinion decides a question of attorney’s fees. A
circuit split regarding attorney’s fees does not generate uncertainty in an
area that governs individual or corporate behavior. See Hill v. C.I.R.,
204 F.3d 1214, 1217-18 (9th Cir. 2000) (explaining that “[u]niformity
among Circuits is especially important in tax cases to ensure equal and
certain administration of the tax system”) (citations omitted); Portland 76
Auto/Truck Plaza, Inc. v. Union Oil Co. of California, 153 F.3d 938, 943
(9th Cir. 1998) (noting the “importance of predictability to commercial
relations” in influencing the decision to not create a circuit split). No one
will suffer any injustice as a result of our opinion, except, perhaps
prisoners and their attorneys in the Sixth Circuit, should our analysis fail
to persuade that Circuit to change its views.

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CONCLUSION

We hold that the fee cap in § (d)(2) does not apply to
attorney’s fees earned in conjunction with an appeal in which
prison officials seek unsuccessfully to reverse a verdict
obtained by the prisoner before the district court. We grant
Woods’ motion for attorney’s fees on appeal and refer this
matter to the Appellate Commissioner to determine the
amount of such fees, as well as the amount of reimbursable
costs.
Motion GRANTED.

MURGUIA, Circuit Judge, dissenting:
Because it runs counter to the plain meaning of 42 U.S.C.
§ 1997e(d)’s text, I respectfully dissent from the majority’s
circuit-splitting opinion. See Riley v. Kurtz, 361 F.3d 906,
916–18 (6th Cir. 2004) (holding § 1997e(d)(2)’s 150% cap
includes any attorney fees a prisoner incurs defending a
monetary judgment on appeal).
I. I begin with § 1997(d)’s text, and give its terms their
ordinary meaning. Synagogue v. United States, 482 F.3d
1058, 1061–62 (9th Cir. 2007).
Section 1997e(d)(1) provides that in “any action brought
by a prisoner . . . in which attorney’s fees are authorized,”
attorney fees “shall not” be awarded to a prevailing prisoner
unless:

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(A) the fee was directly and reasonably
incurred in proving an actual violation of the
plaintiff’s rights protected by a statute . . . and
(B)
(i) the amount of the fee is proportionately
related to the court ordered relief for the
violation . . .
The word “action” includes both a trial and the subsequent
appeal. See Resolution Trust Corp. v. Bayside Developers,
43 F.3d 1230, 1240 (9th Cir. 1994) (“An appeal is not a
‘supplementary proceeding.’ It is a continuance of the same
action.”) (emphasis added); see also, e.g., Mohamad v.
Palestinian Auth., 132 S. Ct. 1702, 1706 (2012) (“In 2005,
petitioners filed this action against respondents . . . .”)
(emphasis added); Leeson v. Transam. Disability Income
Plan, 671 F.3d 969, 970 (9th Cir. 2012) (“Plaintiff . . . filed
this action under the Employee Retirement Income Security
Act . . . .”) (emphasis added). Consequently, the limitations
in paragraph (d)(1) apply to the attorney fees Woods incurred
at trial and on appeal (i.e., in this “action”), Riley, 361 F.3d at
914, and Woods “shall not” recover any attorney fees unless
they are “proportionately related to the court ordered relief”
in this action: $1,500.
Paragraph (d)(2) then defines exactly what constitutes a
“proportionately related” attorney-fee award where a prisoner
obtains nothing but monetary relief in an action. Specifically,
it provides that “in any action described in paragraph [d](1)”
where the relief ordered for the violation of the prisoner’s
civil rights is monetary, a prisoner’s attorney-fee award may
not exceed 150% of that monetary relief. See also

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Dannenberg v. Valadez, 338 F.3d 1070, 1074–75 (9th Cir.
2003).
A straightforward application of the statute’s text requires
a rejection of Woods’s argument that (d)(2)’s 150% cap does
not include the fees he incurred defending his monetary
judgment on appeal. See Wilson v. C.I.R., 705 F.3d 980, 988
(9th Cir. 2013) (“If the plain meaning of the statute is
unambiguous, that meaning controls.”). Woods, a prisoner,
“brought” this “action” where an attorney-fee award is
authorized, so his action is “described” in paragraph (d)(1);
and because the only relief Woods obtained was monetary,
paragraph (d)(2)’s 150% cap applies to the attorney fees he
incurred at trial and on the subsequent appeal (i.e., in this
“action”).1 Accordingly, Woods may not recover more than
$2,250 in attorney fees: 150% of the relief he obtained in this
action.2
The majority injects ambiguity into the statute to avoid
this outcome by reading paragraph (d)(2) in isolation from
paragraph (d)(1), Maj. Op., at 8, a methodology it rightly
impugns several pages later, Maj. Op., at 9. But when the
statute is read in its entirety, the answer to the question here
is clear. Woods’s attorney-fee award must satisfy paragraph

1

W oods’s argument that this application of the statute violates the Equal
Protection Clause fails, as he cannot “negate every conceivable basis
which might support the legislation.” See Riley, 361 F.3d at 916–18
(explaining the rational bases for including appellate attorney fees within
(d)(2)’s 150% cap).
2

Of this $2,250 award, the statute requires that 25% be satisfied from
the monetary relief W oods obtained in his action. See 42 U.S.C.
§ 1997e(d)(2).

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(d)(1)(B)(i)’s3 requirement of being “proportionately related
to [his] court ordered relief,” because that requirement applies
in “any action brought by a prisoner.” And, as even the
majority must concede, had Cervantes not appealed, Woods’s
attorney-fee award would be capped, per paragraph (d)(2), at
$2,250, because that is 150% of the monetary judgment (i.e.,
the “relief” obtained in this “action”). It follows, then, that
Congress has explicitly defined paragraph (d)(1)’s
proportionality requirement to be 150% of the monetary
judgment when the sole “relief” obtained in an “action” (i.e.,
a trial and subsequent appeal) is monetary.
Indeed, it is the majority’s opinion that is ambiguous. As
noted, had Cervantes not appealed, the majority must concede
that Woods’s attorney-award would be capped at $2,250, the
figure that satisfies the requirements of both paragraph (d)(1)
and (d)(2). But the majority holds that Woods’s attorney-fee
award is no longer capped at $2,250 because Cervantes
appealed, even though the relief Woods obtained in this
action did not change. The outcome of the majority’s curious
reading of § 1997e(d) is that a $2,250 attorney-fee award was
proportionately related to $1,500 before Cervantes appealed,
but $2,250 stopped being proportionately related to $1,500
when Cervantes did appeal. In other words, the majority
reads paragraph (d)(1)’s proportionality requirement to mean
two different things depending on whether a losing defendant
3

Paragraph (d)(1)(B)(ii), which permits a prisoner to recover attorney
fees “incurred enforcing the relief” obtained in the action, covers efforts
a prisoner’s attorney must make to compel a non-compliant party to
adhere to the relief ordered in the action. See, e.g., Balla v. Idaho,
677 F.3d 910, 918–21 (9th Cir. 2012) (post-judgment monitoring of losing
party’s compliance with an injunction) (citing, inter alia, Webb v. Ada
Cnty., 285 F.3d 829 (9th Cir. 2002)). Accordingly, it is inapplicable in
W oods’s case.

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appeals an adverse judgment. Cf. Dannenberg, 338 F.3d at
1074 (interpreting § 1997e(d) in way that was “internally
consistent”).
II. The majority engages in a paragraph of statutory analysis,
but that also is unpersuasive. Maj. Op., at 10.
The majority proposes that paragraph (d)(2) applies only
to trial-level work, not work done on appeal, because (d)(2)
is written in the present tense and, had Congress intended
(d)(2) to cap attorney fees incurred on appeal, it would have
used the past tense. But the majority ignores that (d)(2)
applies to “an action described in paragraph[d](1)”; that
paragraph (d)(1) describes “any” action brought by a
prisoner; and that the word “action” includes a trial and
subsequent appeal. Congress did not need to use the past
tense to signal that (d)(2) applies to fees incurred on appeal:
it sent that message by stating (d)(2) applies to the entire
action brought by a prisoner.
The majority also contends that paragraph (d)(2) does not
cap appellate fees because (d)(2) only applies to awards
connected to securing a “monetary judgment,” which is only
awarded in the district court, whereas “courts may award fees
on multiple occasions.” But this argument ignores paragraph
(d)(1)(B)(i)’s limitation that an attorney-fee award is
available in an “action” governed by the PLRA only to the
extent it is proportionately related to the relief ordered “for
the violation” of the prisoner’s civil rights. Here, “the
violation” is of Woods’s rights under the Eighth Amendment,
and the court-ordered relief for that violation in this action is
$1,500. Woods’s attorney-fee award must be proportionately
related to that relief.

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III.
Recognizing that the statute does not support its
result, the majority notes that it must “take into account”
Dannenberg v. Valadez, 338 F.3d 1070 (9th Cir. 2003). Maj.
Op., at 7. It is of course true that we must follow the holdings
of prior panels, Miller v. Gammie, 335 F.3d 889, 899 (9th Cir.
2003) (en banc), but Dannenberg is not remotely dispositive
here.
As the majority explains, Dannenberg obtained injunctive
relief in addition to $9,000 in monetary relief, and also a
$57,556.25 attorney-fee award. Dannenberg, 338 F.3d at
1071. The defendants argued that Dannenberg’s attorney-fee
award ran afoul of paragraph (d)(2) by exceeding 150% of the
monetary relief Dannenberg obtained in his action. Id. at
1073. This court rejected that argument, as it disregarded
paragraph (d)(1)’s proportionality requirement: the only way
to award Dannenberg attorney fees proportionately related to
his court-ordered relief was to account for both his injunctive
and monetary relief.
It was in this context that the court wrote that “(d)(2) caps
attorneys’ fees incurred for the sole purpose of securing the
monetary judgment,” id. at 1075, and it is obvious this
language merely meant to distinguish Dannenberg’s action
from one like Woods’s, in which the “sole” relief obtained is
monetary. This “sole purpose” language says nothing about
attorney fees incurred defending a monetary judgment on
appeal, because Dannenberg had no occasion to address that
issue. Cf. Maj. Op., at 9–10. The majority’s reliance on this
half-sentence in Dannenberg, torn from context, to evade the
statute’s clear meaning is as unconvincing as its reading of
paragraph (d)(2) in isolation from paragraph (d)(1).

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To the extent Dannenberg is relevant here, it supports
capping Woods’s attorney fee-award at $2,250: the attorneyfee award that is proportionately related to the $1,500 in relief
Woods obtained in this action. Dannenberg hinged on the
proposition that a prevailing prisoner’s attorney-fee award
must satisfy paragraph (d)(1)’s proportionality requirement,
and as explained above, the majority discards (d)(1)’s
proportionality requirement when a defendant appeals an
adverse judgment.
So while purporting to rely on
Dannenberg, the majority is unfaithful to Dannenberg’s
reasoning.4
***
A court is not free “to revise the plain language of the
statute simply because [it] think[s] that an alternative
construction is more sensible.” United States v. Jensen,
705 F.3d 976, 980 (9th Cir. 2013) (internal quotation marks
omitted). The majority has created a circuit split by awarding
attorney fees the statute says “shall not” be awarded. I
respectfully dissent.

4

The majority’s suggestion that the Sixth Circuit might have decided
Riley, 361 F.3d at 916–18, differently had it needed to account for
Dannenberg is demonstrably false. See Maj. Op., at 13 n.8. Before Riley,
the Sixth Circuit held in Walker v. Bain, 257 F.3d 660, 667 n.2 (6th Cir.
2001), that paragraph (d)(2)’s cap does not apply when a prisoner obtains
more than just monetary relief in an action— precisely the holding in
Dannenberg.