Victor Parsons v. Charles Ryan ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VICTOR ANTONIO PARSONS; SHAWN No. 18-16358
JENSEN; STEPHEN SWARTZ; SONIA
RODRIGUEZ; CHRISTINA VERDUZCO; D.C. No.
JACKIE THOMAS; JEREMY SMITH; 2:12-cv-00601-
ROBERT CARRASCO GAMEZ, JR.; ROS
MARYANNE CHISHOLM; DESIREE
LICCI; JOSEPH HEFNER; JOSHUA
POLSON; ARIZONA CENTER FOR
DISABILITY LAW; CHARLOTTE
WELLS, on behalf of themselves and
all others similarly situated,
Plaintiffs-Appellees,
v.
CHARLES L. RYAN, Director, Arizona
Department of Corrections;
RICHARD PRATT, Interim
Division Director, Division of Health
Services, Arizona Department of
Corrections,
Defendants-Appellants.
2 PARSONS V. RYAN
VICTOR ANTONIO PARSONS; SHAWN Nos. 18-16365
JENSEN; STEPHEN SWARTZ; SONIA 18-16368
RODRIGUEZ; CHRISTINA VERDUZCO;
JACKIE THOMAS; JEREMY SMITH; D.C. No.
ROBERT CARRASCO GAMEZ, JR.; 2:12-cv-00601-
MARYANNE CHISHOLM; DESIREE ROS
LICCI; JOSEPH HEFNER; JOSHUA
POLSON; CHARLOTTE WELLS, on
behalf of themselves and all others
similarly situated; ARIZONA CENTER
FOR DISABILITY LAW,
Plaintiffs-Appellees,
v.
CHARLES L. RYAN, Director, Arizona
Department of Corrections; RICHARD
PRATT, Interim Division Director,
Division of Health Services, Arizona
Department of Corrections,
Defendants-Appellants.
PARSONS V. RYAN 3
VICTOR ANTONIO PARSONS; SHAWN No. 18-16424
JENSEN; STEPHEN SWARTZ; SONIA
RODRIGUEZ; CHRISTINA VERDUZCO; D.C. No.
JACKIE THOMAS; JEREMY SMITH; 2:12-cv-00601-
ROBERT CARRASCO GAMEZ, JR.; ROS
MARYANNE CHISHOLM; DESIREE
LICCI; JOSEPH HEFNER; JOSHUA
POLSON; CHARLOTTE WELLS, on OPINION
behalf of themselves and all others
similarly situated,
Plaintiffs-Appellants,
and
ARIZONA CENTER FOR DISABILITY
LAW,
Plaintiff,
v.
CHARLES L. RYAN, Director, Arizona
Department of Corrections; RICHARD
PRATT, Interim Division Director,
Division of Health Services, Arizona
Department of Corrections,
Defendants-Appellees.
4 PARSONS V. RYAN
Appeal from the United States District Court
for the District of Arizona
Roslyn Silver, District Judge, and David K. Duncan,
Magistrate Judge, Presiding *
Argued and Submitted September 24, 2019
San Francisco, California
Filed January 29, 2020
Before: Sidney R. Thomas, Chief Judge, and J. Clifford
Wallace and Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Wallace
*
Magistrate Judge Duncan retired on June 22, 2018, and the case
was reassigned to District Court Judge Roslyn O. Silver.
PARSONS V. RYAN 5
SUMMARY **
Prisoner Class Action
The panel affirmed in part, reversed in part, and
dismissed in part, in consolidated appeals in a comeback
case involving eleven district court orders, arising from a
class action by Arizona state prisoners against Defendant
Arizona Department of Corrections (ADC) senior officials,
challenging the ADC’s provision of healthcare.
The parties entered into a Stipulation in which
Defendants agreed to comply with Performance Measures
designed to improve the healthcare system at ten ADC-
operated prisons. The Stipulation provided the process by
which the parties must resolve disputes over compliance.
The panel affirmed the district court’s order holding the
Defendants in contempt; affirmed in part and reversed in part
the order awarding Plaintiffs’ attorneys’ fees for work
performed post-stipulation; affirmed the order partially
granting and partially denying Defendants’ motion to
terminate the monitoring of certain Performance Measures;
affirmed the order requiring Defendants to reinstall Health
Needs Request boxes for prisoners to submit forms
requesting medical assistance; and dismissed the remainder
of the medical needs appeal for lack of jurisdiction.
Concerning the contempt order, the panel rejected
Defendants’ contention that the district court lacked the
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
6 PARSONS V. RYAN
power to hold them in contempt; and held that the district
court acted within its authority in issuing the order to show
cause, and thus Defendants’ noncompliance with that order
properly served as the basis for the contempt order. The
panel further held that because the contempt order was
coercive and compensatory, it was civil in nature, and thus
Defendants were not entitled to criminal due process
protections. As a result, Defendants did not establish that
the district court deprived them of due process. The panel
also held that the contempt order was sufficiently detailed to
justify the $1,000 sanction per violation, and therefore
remand was not required. The panel also held that any error
committed by the district court in interpreting the Stipulation
to require 100% compliance had no impact on the contempt
order, and would therefore not be grounds for reversing that
order. Finally, the panel rejected Defendants’ contention that
the district court improperly modified the Stipulation.
Concerning the parties’ cross-appeals from the
attorneys’ fees order, the panel held that Plaintiffs’ time
entries were sufficient for the district court to make a
reasonable attorneys’ fees award, and thus the district court
did not abuse its discretion in relying on them. The panel
also held that the district court erroneously set Plaintiffs’
attorneys’ base hourly rate higher than the rate permitted by
the Stipulation, but disagreed with the alternative rate
proposed by Defendants. Specifically, the panel held that
the hourly rate under 42 U.S.C. § 1997e(d)(3) was the
amount the Judicial Conference of the United States
authorized and requested from Congress, and the district
court did not err in consulting the Congressional Budget
Summary to derive the rate. The panel vacated the
attorneys’ fees order, and remanded to the district court to
recalculate the fee award by determining the correct rates for
each year and applying these rates to Plaintiffs’ time-entries.
PARSONS V. RYAN 7
The panel rejected Defendants’ argument that the district
court erred in applying San Francisco Bay Area and
Washington, D.C. paralegal market rates instead of the
market rate in Phoenix. The panel held that the district court
did not err in applying the Prison Litigation Reform Act
(“PLRA”) maximum rate to the paralegal work performed in
the San Francisco Bay Area, but the correct maximum rate
was the amount the Judicial Conference authorized and
requested from Congress. The panel reversed and remanded
with instructions for the district court to re-calculate the fees
awarded for paralegal work in light of the correct rates.
Finally, the panel rejected Defendants’ contentions that the
Stipulation did not allow for a multiplier and the PLRA did
not allow for a multiplier, but agreed that the district court
abused its discretion by concluding a multiplier was
appropriate here. The panel vacated the attorneys’ fees
order, and remanded for the district court to reweigh whether
an enhancement was appropriate.
Concerning Plaintiffs’ contention on cross-appeal that
the district court misinterpreted the law by denying Plaintiffs
compensation for law clerk time, the panel held that
compensation for unpaid law clerks was permissible under
42 U.S.C. § 1988. The panel held, however, that Plaintiffs
incorrectly assumed that the district court ruled that it could
not award compensation for unpaid law clerk time, when it
actually ruled that it would not. The panel denied Plaintiffs’
cross-appeal.
Concerning the medical needs appeal, the panel affirmed
the district court’s termination order, which denied
Defendants’ request to terminate certain Performance
Measures. The panel rejected Defendants’ argument that the
district court erred in finding that ADC’s monitoring system
was unreliable. The panel also rejected Defendants’
8 PARSONS V. RYAN
challenge to the district court’s legal interpretation of the
Stipulation, and Defendants’ argument that the district court
exceeded its authority in appointing a doctor to investigate
ADC’s monitoring program. The panel affirmed the district
court’s HNR-Box order, in which it ordered Defendants to
reinstall HNR boxes in the same number and approximate
locations as before the HNR-Box system was discontinued.
The panel rejected Defendants’ three arguments challenging
the HNR-Box order. The panel held that it lacked
jurisdiction over the district court’s seven expert orders
because they were neither final orders nor appealable
collateral orders. The panel dismissed the appeal to the
extent it concerned those orders.
COUNSEL
Timothy J. Berg (argued), Todd Kartchner, Courtney R.
Beller, and Shannon McKeon, Fennemore Craig P.C.,
Phoenix, Arizona; Nicholas D. Acedo (argued), Daniel P.
Struck, and Rachel Love, Struck Love Bojanowski & Acedo
PLC, Chandler, Arizona; for Defendants-Appellants/Cross-
Appellees.
Corene T. Kendrick (argued), Donald Specter, and Rita K.
Lomio, Prison Law Office, Berkeley, California; David C.
Fathi, Amy Fettig, and Jennifer Wedekind, ACLU National
Prison Project, Washington, D.C.; Maya S. Abela and Rose
A. Daly-Rooney, Arizona Center for Disability Law,
Tucson, Arizona; for Plaintiffs-Appellees/Cross-Appellants.
PARSONS V. RYAN 9
OPINION
WALLACE, Circuit Judge:
The consolidated appeals in this comeback case arise
from a class-action by prisoners in the custody of the
Arizona Department of Corrections (ADC) against senior
ADC officials (Defendants), in which certain prisoners
(Plaintiffs) challenged ADC’s provision of healthcare.
Defendants appeal from eleven district court orders
imposing contempt sanctions, awarding attorneys’ fees to
Plaintiffs, appointing expert witnesses, and otherwise
enforcing obligations under a settlement agreement
Defendants entered into with Plaintiffs. Plaintiffs cross-
appeal from the attorneys’ fees order. We affirm in part,
reverse in part, dismiss in part, and remand.
I.
In 2012, Plaintiffs brought a class action alleging, in
relevant part, that Defendants were deliberately indifferent
to the substantial risk of serious harm that ADC’s healthcare
delivery policies and practices posed to Plaintiffs. On the eve
of trial, the parties settled and entered into an agreement (the
Stipulation), in which Defendants agreed to comply with 103
“Performance Measures” designed to improve the healthcare
system at ten ADC-operated prisons.
The Stipulation provides the process by which the parties
must resolve disputes over compliance. In the event
Plaintiffs believe Defendants are in non-compliance with
one or more of the Performance Measures, the Stipulation
requires Plaintiffs to first provide Defendants a written
statement describing the alleged non-compliance, to which
Defendants must provide a written response. Plaintiffs and
Defendants must then meet and confer in an attempt to
10 PARSONS V. RYAN
resolve the dispute informally and, if informal efforts fail,
participate in formal mediation. If the dispute is not resolved
through formal mediation, either party may file a motion to
enforce the Stipulation in the district court. If the district
court “finds that Defendants have not complied with the
Stipulation, it shall in the first instance require Defendants
to submit a plan approved by the Court to remedy the
deficiencies identified by the Court.”
If “the Court subsequently determines that the
Defendants’ plan did not remedy the deficiencies, the Court
shall retain the power to enforce the Stipulation through all
remedies provided by law.” However, “the Court shall not
have the authority to order Defendants to construct a new
prison or to hire a specific number or type of staff unless
Defendants propose to do so as part of a plan to remedy a
failure to comply with any provision of this Stipulation.” The
Stipulation also provides for attorneys’ fees and costs for
Plaintiffs’ successful enforcement efforts.
Since executing the Stipulation, the parties have engaged
in multiple disputes stemming from Defendants’ alleged
non-compliance with some of the Performance Measures.
We addressed a number of these disputes in our prior
decision, Parsons v. Ryan, 912 F.3d 486 (9th Cir. 2018)
(Parsons I). Because the facts and procedural history of this
case were detailed in that decision, we discuss them here
only as necessary to explain our decision in the consolidated
appeals currently before us.
On October 10, 2017, the district court issued an order
(the Order to Show Cause), in which it explained that,
although Defendants had been given “wide latitude to revise
their remediation plans over the last two years,” for “a subset
of performance measures, these remediation plans have
failed.” The district court ordered that “effective
PARSONS V. RYAN 11
immediately, Defendants shall comply with” eleven
specified Performance Measures “for every class member”
at specified prisons. The district court also ordered
Defendants to “file a list of every instance of non-
compliance with this Order during December 2017,” and
ordered Defendants to “show cause why the Court should
not impose a civil contempt sanction of $1,000 per incident
of non-compliance commencing the month of December
2017.”
Following hearings on Defendants’ compliance with the
Order to Show Cause, the district court determined that
Defendants had not taken all reasonable steps to comply with
the Order to Show Cause and their compliance remained
below 85% for certain of the Performance Measures listed in
that order.
Accordingly, on June 22, 2018, the district court issued
an order holding Defendants in contempt (the Contempt
Order). The district court imposed “a financial penalty of
$1,000 per failed instance” for each Performance Measure
listed in the Order to Show Cause “that fell below the
Stipulation’s threshold of 85%.” Cataloguing 1,445 such
violations, the district court ordered Defendants to pay
$1,445,000 “to be kept in the Registry until further order of
the Court.” The district court entered final judgment against
Defendants the same day.
Also on that same day the district court issued the
following orders: an order awarding Plaintiffs attorneys’
fees for work performed post-Stipulation in the amount of
$1,259,991.98 (the Attorneys’ Fees Order); an order
partially granting and partially denying Defendants’ motion
to terminate the monitoring of certain Performance
Measures (the Termination Order); an order requiring
Defendants to reinstall Health Needs Request boxes (HNR-
12 PARSONS V. RYAN
boxes) for prisoners to submit forms requesting medical
assistance (the HNR-Box Order); an order requiring
Defendants to file a plan to implement the recommendations
made by BJ Millar of Advisory Board Consulting (the
Millar-Plan Order); 1 and an order requiring the parties to
submit proposed experts to analyze “why deficiencies persist
and to opine as to the policies and procedures necessary to
compel compliance with the Stipulation” (the Compliance-
Expert Order).
On December 11, 2018, the district court appointed
Dr. Marc Stern as a Rule 706 expert to provide remediation
plans and to review ADC’s monitoring process, and it
ordered the parties to confer regarding the scope of
Dr. Stern’s engagement (Stern-Appointment Order). On
January 31, 2019, the district court issued an order accepting
Dr. Stern’s engagement as agreed to by the parties in a joint
submission, and resolved some disputes regarding the scope
of Dr. Stern’s engagement (Stern-Terms of Engagement
Order). On April 30, 2019, upon a request from Dr. Stern,
the district court again clarified the scope of Dr. Stern’s work
(Stern-Standard of Care Order). On May 30, 2019, the
district court—in response to an additional issue raised by
Dr. Stern concerning his ability to assess mental health
delivery—appointed Dr. Bart Abplanalp as a Rule 706
expert (Abplanalp-Appointment Order) focusing on mental
health.
In this opinion, we address four consolidated appeals.
First, Defendants appeal from the Contempt Order (the
Contempt Appeal, No. 18-16358). Second, Defendants and
1
The district court previously appointed Mr. Millar as a Rule 706
expert to make recommendations regarding enforcement of the
Stipulation (the Millar-Appointment Order).
PARSONS V. RYAN 13
Plaintiffs cross-appeal from the Attorneys’ Fees Order (the
Attorneys’ Fees Appeals, Nos. 18-16365 & 18-16424).
Finally, Defendants appeal from the following orders related
to the ongoing enforcement of the Stipulation (the Medical
Needs Appeal, No. 18-16368): the Termination Order, the
HNR-Box Order, the Millar-Plan Order, the Millar-
Appointment Order, the Compliance-Expert Order, the
Stern-Appointment Order, the Stern-Terms of Engagement
Order, the Stern-Standard of Care Order, and the Abplanalp-
Appointment Order.
For the reasons set forth below, we affirm the Contempt
Order, affirm in part and reverse and remand in part the
Attorneys’ Fees Order, affirm the Termination Order and the
HNR-Box Order, and dismiss the remainder of the Medical
Needs Appeal for lack of jurisdiction.
II.
We review the district court’s enforcement of a
settlement agreement for an abuse of discretion. Wilcox v.
Arpaio, 753 F.3d 872, 875 (9th Cir. 2014). Therefore, we
will reverse only if the district court made an error of law or
reached a result that was illogical, implausible, or without
support in the record. See United States v. Hinkson, 585 F.3d
1247, 1261–63 (9th Cir. 2009). “[W]e defer to any factual
findings made by the district court in interpreting the
settlement agreement unless they are clearly erroneous.”
City of Emeryville v. Robinson, 621 F.3d 1251, 1261 (9th
Cir. 2010). However, we review de novo the district court’s
interpretation of a stipulation of settlement. See Jeff D. v.
Andrus, 899 F.2d 753, 759 (9th Cir. 1989).
“An appellate court reviews an award of attorney’s fees
and costs for an abuse of discretion.” Barjon v. Dalton,
132 F.3d 496, 500 (9th Cir. 1997) (citations omitted). “A
14 PARSONS V. RYAN
district court abuses its discretion if its fee award is based on
an inaccurate view of the law or a clearly erroneous finding
of fact.” Id.
III.
Defendants challenge the Contempt Order on the
grounds that (A) the district court lacked the power to hold
them in contempt; (B) the district court imposed criminal
contempt sanctions without affording them adequate due
process; (C) the amount of the sanctions was excessive;
(D) the district court improperly modified the Stipulation to
require 100% compliance; and (E) the district court
improperly modified the Stipulation by requiring reporting
on all instances of non-compliance. We address these
arguments in turn.
A.
We begin with Defendants’ argument that the district
court lacked the power to hold them in contempt. Defendants
provide two reasons why the district court supposedly lacked
this power.
First, Defendants argue that the Stipulation is a private
settlement agreement, and as such, it is not enforceable via
the district court’s contempt powers. Defendants are correct,
as a legal matter, that contempt is only available when the
district court finds by clear and convincing evidence that a
party “violated a specific and definite order of the court.”
Stone v. City and Cty. of San Francisco, 968 F.2d 850, 856
n.9 (9th Cir. 1992).
However, this principle is unhelpful to Defendants
because the Contempt Order was not based on violations of
the Stipulation—but rather, it was explicitly based on
PARSONS V. RYAN 15
violations of the Order to Show Cause. The Contempt Order
requires Defendants to pay a “financial penalty” as “a result”
of their failure to “take all reasonable steps to comply with
the Court’s [Order to Show Cause],” in light of Defendants’
“knowledge” of the Order to Show Cause and the fact that
Defendants had an “opportunity to be heard about their non-
compliance.” Moreover, the Contempt Order exclusively
imposed penalties for Defendants’ failure to comply with
some of the 11 Performance Measures outlined in the Order
to Show Cause—not for a failure to comply with any of the
other 92 Performance Measures outlined in the Stipulation.
Compare Order to Show Cause (ordering Defendants to
comply with Performance Measures 11, 35, 39, 44, 46, 47,
50, 51, 52, 54, 66), with Contempt Order (holding
Defendants in contempt for violating Performance Measures
35, 44, 46, 47, 50, 51, 52, 54, 66).
Second, Defendants argue that their noncompliance with
the Order to Show Cause cannot be the basis for the
Contempt Order because the Order to Show Cause is, itself,
void. According to Defendants, an order to show cause is
“merely a vehicle for enforcing a court’s prior order”—not
for enforcing a private agreement like the Stipulation. While
Defendants are correct that the Order to Show Cause did not
assert that any past violation of the district court’s orders had
occurred, we disagree that it is void.
The Stipulation provides the district court the authority
to “enforce this Stipulation through all remedies provided by
law,” subject to a few limitations. Ordering Defendants to
comply with a specific subset of the Performance Measures
they agreed to in the Stipulation is one such “remed[y]
provided by law,” namely, an injunction requiring specific
performance. We have previously upheld the district court’s
power to issue such injunctions to enforce the Stipulation in
16 PARSONS V. RYAN
this case. See Parsons I, 912 F.3d at 499–501 (upholding the
Outside Provider Order, which required Defendants to “use
all available community healthcare services” to ensure
compliance with certain Performance Measures).
Moreover, “the Stipulation is clear on the limits of the
district court’s authority to enforce the Stipulation.” Parsons
I, 912 F.3d at 497. One of those limitations deprives the
district court of “the authority to order Defendants to
construct a new prison or to hire a specific number or type
of staff unless Defendants propose to do so as part of a plan
to remedy a failure to comply with any provision of this
Stipulation.” This limitation would be superfluous if the
district court lacked injunctive powers generally. “It is a
cardinal rule of the construction of contracts that some effect
is to be given, if possible, to every part thereof.” Aldous v.
Intermountain Bldg. & Loan Ass’n of Ariz., 284 P. 353, 355
(Ariz. 1930). Although the district court’s enforcement
authority is limited by the terms of the Stipulation,
Defendants have not shown that the Order to Show Cause
exceeds those limitations or is otherwise inconsistent with
other terms of the Stipulation. Cf., e.g., Parsons I, 912 F.3d
at 503 (“The parties set the benchmark for inclusion in the
subclass at 14 hours; the district court cannot unilaterally
move that benchmark to 15.5 hours”).
We conclude that the district court acted within its
authority in issuing the Order to Show Cause, and thus
Defendants’ noncompliance with that order may properly
serve as the basis for the Contempt Order. See Spallone v.
United States, 493 U.S. 265, 276 (1990) (explaining that
federal courts have inherent power to enforce their lawful
orders through contempt).
PARSONS V. RYAN 17
B.
Defendants next argue that the Contempt Order must be
vacated because it imposed criminal sanctions on
Defendants without affording them due process. 2 Plaintiffs
concede that criminal due process protections (such as a jury
trial) were not observed, but contend that the Contempt
Order was civil in nature. Thus, the relevant question is
whether the Contempt Order was criminal or civil.
To determine whether contempt sanctions are civil or
criminal, we examine “the character of the relief itself.” Int’l
Union, United Mine Workers of Am. v. Bagwell, 512 U.S.
821, 828 (1994). A “sanction generally is civil if it coerces
compliance with a court order or is a remedial sanction
meant to compensate the complainant for actual losses.”
Ahearn ex rel. N.L.R.B. v. Int’l Longshore & Warehouse
Union, Locals 21 & 4, 721 F.3d 1122, 1129 (9th Cir. 2013),
citing Bagwell, 512 U.S. at 829. “A criminal sanction, in
contrast, generally seeks to punish a ‘completed act of
disobedience.’” Id., quoting Bagwell, 512 U.S. at 829.
Here, the “character” of the sanction was primarily
coercive. The district court explicitly stated that the purpose
of holding Defendants in contempt was to “compel
compliance” because the “mere threat of monetary
sanctions” in the Order to Show Cause was “not sufficient.”
Moreover, the district court utilized the paradigmatic
coercive contempt sanction of prospective, conditional fines
2
Defendants argue in a footnote that, “[e]ven if this Court finds that
the Sanctions Order was civil in nature, a heightened standard of due
process was still required.” Defendants do not elaborate on what this
heightened standard is or how the district court failed to provide it. This
argument is therefore forfeited due to inadequate briefing. See
Greenwood v. F.A.A., 28 F.3d 971, 977 (9th Cir. 1994).
18 PARSONS V. RYAN
outlined in the Order to Show Cause and ordered Defendants
to continue filing monthly reports regarding their
compliance. See Shell Offshore Inc. v. Greenpeace, Inc.,
815 F.3d 623, 629 (9th Cir. 2016) (“coercive civil sanctions,
intended to deter, generally take the form of conditional
fines”).
The sanction was also compensatory. The district court
concluded that “civil contempt sanctions against
Defendants” were warranted “to address Plaintiffs’ injuries
resulting from [Defendants’] noncompliance.” To that end,
the district court ruled that it would use the funds for the
benefit of the class “to further compliance with the
healthcare requirements of the Stipulation,” and it ordered
the parties to provide proposals for how best to do so. Cf.
Shell Offshore, 815 F.3d at 629 n.4 (“Whether fines are
payable to the opposing party or to the court may also be a
factor in deciding whether they are coercive or
compensatory”). Furthermore, Defendants could not purge
the fines after the violations occurred, which indicates that
the harm suffered by Plaintiffs in those months needed to be
redressed. See id. at 629 (“Because civil compensatory
sanctions are remedial, they typically take the form of
unconditional monetary sanctions”).
Although the “line between civil and criminal contempt”
can become “blurred” in cases where “noncompensatory
sanctions” are predicated on “out-of-court disobedience to
complex injunctions,” no such blurriness exists here
because, as explained above, the sanction in the Contempt
Order was also compensatory. Ahearn, 721 F.3d at 1129.
The Supreme Court’s decision in Bagwell “leaves unaltered
the longstanding authority of judges . . . to enter broad
compensatory awards for all contempts through civil
proceedings.” Id. at 1130, citing Bagwell, 512 U.S. at 838.
PARSONS V. RYAN 19
Finally, nothing in the record suggests that the sanctions
were punitive. Prospective, conditional fine schedules do not
bear any of the hallmarks of punitive contempt, such as
retroactivity and determinacy. See Bagwell, 512 U.S. at 828–
30. The fact that Defendants had no purge option after
December 2017 does not necessarily reflect that the
sanctions were imposed as punishment because Defendants
were able to avoid the sanctions by complying with the
October 2017 Order to Show Cause before the December
2017 reporting period. See CBS v. FilmOn.com, Inc.,
814 F.3d 91, 102 (2d Cir. 2016) (“[A] court’s sanction does
not become criminal even if the court does not afford the
party an additional opportunity to purge because the
sanctions were prompted by the party’s previous failure to
purge”). Defendants’ complaints about the district court’s
oral remarks alluding to punishment do not alter our
conclusion because subjective intent is not the applicable
standard for determining whether contempt is criminal. See
Bagwell, 512 U.S. at 828; see also Nat’l Abortion Fed’n v.
Ctr. for Med. Progress, 926 F.3d 534 (9th Cir. 2019)
(rejecting the “misguided” argument that sanctions “must be
deemed criminal in nature because the district court stated
that it was imposing the sanctions in part to deter future
violations of the preliminary injunction”).
Because the Contempt Order was coercive and
compensatory, we hold that it was civil in nature, and thus,
Defendants were not entitled to criminal due process
protections. As a result, Defendants have not established that
the district court deprived them of due process.
C.
Defendants next argue that remand of the Contempt
Order is required because the district court failed to make the
requisite findings to justify a $1,000 sanction per violation.
20 PARSONS V. RYAN
Defendants’ sole authority for this point is Shuffler v.
Heritage Bank, 720 F.2d 1141, 1148 (9th Cir. 1983).
As we explained above, the Contempt Order here was
coercive and compensatory. Coercive sanctions may only be
imposed “after a reasoned consideration” of “the character
and magnitude of the harm threatened by the continued
contumacy, and the probable effectiveness of any suggested
sanction in bringing about the result desired.” Shuffler,
720 F.2d at 1148. Similarly, compensatory fines “must be
based on” the “actual losses sustained as a result of
contumacy.” Id.
The instant case is distinguishable from Shuffler. In that
case, we vacated contempt sanctions because the district
court made “no written statement of the purpose or purposes
underlying its imposition of a $500 daily fine” and the
appellee “ha[d] not pointed to any portion of the record
demonstrating that the district court imposed the fine after a
reasoned consideration of these criteria.” Id. at 1147–48.
Here, by contrast, the district court explained why it was
holding Defendants in contempt and why it selected the
prospective fine schedule. For example, in the Order to
Show Cause, when establishing a prospective and
conditional fine schedule, the district court wrote:
Any exercise of the Court’s contempt
authority in this matter would be intended to
spur Defendants’ compliance with the
performance measures that they have
contractually agreed to perform. Shell
Offshore Inc. v. Greenpeace, Inc., 815 F.3d
623, 629 (9th Cir. 2016) (describing coercive
civil contempt). When Defendants provide
the health care required by the Stipulation,
the contempt will purge. Int’l Union, UMWA
PARSONS V. RYAN 21
v. Bagwell, 512 U.S. 821, 829 (1994). The
power of economic carrots and sticks is
clearly understood by Defendants. (Doc.
2295; Doc. 2330 at 195–197) Accordingly,
the Court expects this to be an effective and
short-lived tool that creates compliance with
the Stipulation.
This reasoning demonstrates that the district court gave
“reasoned consideration” to “the probable effectiveness of
any suggested sanction in bringing about the result desired.”
Shuffler, 720 F.2d at 1148.
Similarly, in the Contempt Order, the district court
extensively documented Defendants’ failures to comply
with the district court’s Performance Measures and
explained that the sanctions were warranted to “address
Plaintiffs’ injuries resulting from [Defendants’]
noncompliance.” This explanation demonstrates that the
district court gave “reasoned consideration” to “the character
and magnitude of the harm” and to “actual losses sustained
as a result of contumacy.” Shuffler, 720 F.2d at 1148.
Based on the reasoning in the district court’s orders, we
conclude that such orders were sufficiently detailed and
therefore remand is not required.
D.
We turn now to Defendants’ argument that the district
court improperly modified the Stipulation by requiring
100% compliance with the Performance Measures. The
Stipulation defines “substantial compliance” during the
22 PARSONS V. RYAN
relevant timeframe 3 as “meeting or exceeding an eighty-five
percent (85%) threshold for the particular Performance
Measure that applies to a specific complex.” In the Contempt
Order, the district court interpreted the Stipulation’s 85%
threshold as “simply a triggering point for the Court’s
intervention,” and stated that the “Stipulation requires 100%
compliance with each of its Performance Measures.”
Defendants argue that the district court improperly modified
the Stipulation by requiring 100% compliance with the
Performance Measures.
We have already rejected an analogous argument from
Defendants concerning the Outside Provider Order (OPO) in
Parsons I, 912 F.3d at 500. The OPO required Defendants to
use outside medical providers to treat prisoners whom
Defendants had failed to treat within the time-frame detailed
in Performance Measures “immediately after the expiration”
of that time-frame. Id. at 499–500. Defendants objected to
the OPO on the grounds that it “effectively re-writes the
Stipulation to require 100 percent compliance with the
performance measures, rather than 80 percent.” Id.
In rejecting this argument, we held that “[a]lthough the
OPO requires Defendants to use outside providers if
Defendants cannot otherwise treat inmates within the
prescribed time frame, it does not, in fact change the
threshold for substantial compliance,” which was 80% at
that time. Id. at 500. As we explained:
3
The Contempt Order was based on Defendants’ noncompliance in
December 2017. The Stipulation provides an 85% threshold for
substantial compliance “[a]fter the first twenty four months after the
effective date of this Stipulation,” which was February 25, 2015.
PARSONS V. RYAN 23
[T]he OPO is simply a remedy to address
Defendants’ non-compliance, it does not
change what constitutes compliance for
purposes of avoiding judicial enforcement.
So long as Defendants meet or exceed the
80 percent benchmark provided in the
Stipulation, the OPO has no effect.
Therefore, we disagree with the notion that
the OPO effectively requires 100 percent
compliance.
Parsons I, 912 F.3d at 500.
The same reasoning applies here. The district court
determined that the Stipulation requires 100% compliance
once a Performance Measure falls below the 85% threshold,
which serves as a “triggering point for the Court’s
intervention.” The district court imposed sanctions only for
Performance Measures that “have remained below the
Stipulation’s 85% threshold.” Thus, as with the OPO, “the
[contempt order] is simply a remedy to address Defendants’
non-compliance, it does not change what constitutes
compliance for purposes of avoiding judicial enforcement.”
Parsons I, 912 F.3d at 500. “So long as Defendants meet or
exceed the [85] percent benchmark provided in the
Stipulation, the [Contempt Order] has no effect.” Id.
Simply put, the district court did not exercise its
discretion to impose contempt sanctions based on its legal
conclusion that “[t]he Stipulation requires 100% compliance
with each of its Performance Measures.” Therefore, any
error committed by the district court in interpreting the
Stipulation to require 100% compliance had no impact on
the Contempt Order, and would therefore not be grounds for
reversing that order.
24 PARSONS V. RYAN
E.
Finally, Defendants seek reversal of the Contempt Order
on the grounds that the district court purportedly modified
the Stipulation by ordering Defendants to “file monthly
reports reflecting every instance of noncompliance” for
certain Performance Measures “that are at less than 85%
compliance.” As Defendants point out, compliance under the
Stipulation “shall be measured and reported monthly at each
of ADC’s ten (10) complexes [based on] . . . a protocol to be
used for each performance measure, attached as Exhibit C.”
Exhibit C establishes the measuring protocol for each
Performance Measure, and the most common method is
through a random sampling of 10 records each month.
Defendants contend that, because the Stipulation sets forth a
random sampling process for measuring compliance, the
Stipulation prohibits the district court from ordering
comprehensive reporting.
We start with the premise that the district court “cannot
unilaterally” alter the terms of the Stipulation. Parsons I,
912 F.3d at 503; see also Isaak v. Mass. Indem. Life Ins. Co.,
623 P.2d 11, 14 (Ariz. 1981) (“It is not within the power of
[a] court to ‘revise, modify, alter, extend, or remake’ a
contract to include terms not agreed upon by the parties”).
However, this principle does not resolve the dispute here
because the Stipulation also authorizes the district court to
remedy “deficiencies” via “all remedies provided by law”
(with a few exceptions that do not apply here), and
Defendants do not argue that ordering monthly reports to
PARSONS V. RYAN 25
ascertain compliance with a court-approved plan is not a
remedy at law. 4
Instead, Defendants appear to conflate the fact that the
Stipulation requires a random sampling to measure
compliance with the fact that the Contempt Order requires
comprehensive reporting. However, the two requirements
are distinct and not necessarily inconsistent. While ordering
comprehensive reporting of noncompliance falls within the
district court’s authority under the Stipulation pursuant to the
“all remedies provided by law” clause, the district court may
not measure noncompliance using comprehensive monthly
reporting because the Stipulation expressly sets forth
random sampling protocols for measuring compliance. Cf.
Parsons I, 912 F.3d at 503 (“The parties set the benchmark
for inclusion in the subclass at 14 hours; the district court
cannot unilaterally move that benchmark to 15.5 hours”).
Although somewhat unclear, the record suggests the
district court measured compliance pursuant to the random
sampling protocols set forth in the Stipulation. In the
Contempt Order, the district court determined that certain
Performance Measures were below the 85% substantial
compliance threshold by reviewing Defendants’ Notice
Relating to Performance Measures for the May 9, 2018
Status Hearing (Dist. Dkt. No. 2801-1). That document,
unfortunately, does not indicate how Defendants measured
compliance. However, given Defendants’ litigation position
in this case—namely that comprehensive manual reporting
is an “impossible task” which contravenes the agreed-upon
4
Nor could they; district courts routinely issue such orders. See, e.g.,
Coleman v. Brown, No. CIV. S-90-520 LKK, 2014 WL 1091864, at *3
(E.D. Cal. Mar. 18, 2014) (ordering “monthly reports as to whether the
project has been or can be accelerated”).
26 PARSONS V. RYAN
method in the Stipulation—it seems almost certain that
Defendants calculated their substantial compliance based on
the Stipulation’s random sampling protocols. Defendants’
failure to argue otherwise in their briefs further suggests that
they measured compliance pursuant to the random sampling
method provided by the Stipulation. On this record, we do
not conclude that the district court based its Contempt Order
on comprehensive measurements, and thus there was no
reversible error.
In sum, we conclude the district court did not abuse its
discretion in issuing the Contempt Order.
IV.
We turn now to the parties’ cross-appeals from the
Attorneys’ Fees Order, in which the district court awarded
fees pursuant to Paragraph 43 of the Stipulation. That
paragraph provides for attorneys’ fees and costs as follows:
In the event that Plaintiffs move to enforce
any aspect of this Stipulation and the
Plaintiffs are the prevailing party with respect
to the dispute, the Defendants agree that they
will pay reasonable attorneys’ fees and costs,
including expert costs, to be determined by
the Court. The parties agree that the hourly
rate of attorneys’ fees is governed by
42 U.S.C. § 1997e(d).
In the Attorneys’ Fees Order, the district court awarded
Plaintiffs attorneys’ fees for work performed post-
PARSONS V. RYAN 27
Stipulation,5 holding that such fees were compensable under
the Stipulation because that work was “driven by Plaintiffs’
attempts to enforce the Stipulation.” The district court set the
hourly rate for each year at Plaintiffs’ suggested base rate,
and applied a 2X fee enhancement. The district court also
granted Plaintiffs copying costs but denied them unpaid law
clerk time. The district court calculated the award at
$1,259,991.98 and subsequently entered judgment against
Defendants for that amount.
A.
Defendants argue that the Attorneys’ Fees Order should
be reversed because the district court erroneously
(1) awarded fees and costs in excess of the fees authorized
by the Stipulation; (2) set the base hourly rate too high;
(3) set the paralegal based hourly rate based on the wrong
geographic market; and (4) improperly enhanced the fee
award by a 2X multiplier. We address these arguments in
turn.
1.
Defendants contend that Paragraph 43 only permits an
award of fees and costs for work that was directly related to
a successful motion to enforce a provision in the Stipulation
that “expressly requires Defendants to do some act.” The
district court rejected this interpretation as “inappropriately
narrow” because activities other than motion practice were
also “driven by Plaintiffs’ attempts to enforce the
stipulation.” Defendants argue that the district court’s
5
Attorneys’ fees prior to the Stipulation were negotiated separately
and are not at issue here.
28 PARSONS V. RYAN
interpretation of the Stipulation is erroneous in light of the
“move to enforce” language in Paragraph 43.
Reviewing the district court’s legal interpretation de
novo, 6 Andrus, 899 F.2d at 759, we agree with the district
court. We reject Defendants’ contention that Paragraph 43
only applies to time spent related to documents bearing the
title “Motion to Enforce.” While Paragraph 43 does contain
the phrase “move to enforce,” we decline to interpret the
Stipulation as only providing fees and costs for work
pertaining to motions.
The term “move” is somewhat ambiguous because it
“may be susceptible to multiple interpretations,” Taylor v.
State Farm Mut. Auto. Ins. Co., 854 P.2d 1134, 1140 (Ariz.
1993). Considering “the plain meaning of the words as
viewed in the context of the contract as a whole,” Earle Invs.,
LLC v. S. Desert Med. Ctr. Partners, 394 P.3d 1089, 1092
(Ariz. Ct. App. 2017), we construe the term to mean “to
prompt or rouse to the doing of something”—which, in this
case, refers to the process the Stipulation requires Plaintiffs
to engage in to “prompt” Defendants or the Court to enforce
the Stipulation. See Move, Merriam-
Webster Dictionary (11th ed. 2019), https://www.merriam-
webster.com/dictionary/move; see also id. (defining “move”
as “a step taken especially to gain an objective”). This
interpretation is compelling when viewing the Stipulation
6
Plaintiffs argue that we should give deference to the district court’s
interpretation of the Stipulation in light of the district court’s extensive
oversight of the enforcement process. However, Plaintiffs’ cited
authority only supports the proposition that a court of appeals may give
deference to a district court’s interpretation of a consent decree. Because
we affirm without providing such deference, we do not reach the
question of whether such deference extends to the district court’s
interpretation of the Stipulation.
PARSONS V. RYAN 29
“as a whole” because the Stipulation expressly requires that
Plaintiffs’ enforcement efforts begin with providing
Defendants written notice of non-compliance, followed by
meeting and conferring with Defendants to resolve disputes
informally, which, if necessary, is followed by mediation,
and finally—if all of those steps do not “prompt” Defendants
to change course—Plaintiff may file a motion before the
district court. Thus, any enforcement motions filed in court
are merely the proverbial tip of the iceberg for the
enforcement process required by the Stipulation. In light of
these requirements, we conclude it would be unreasonable
and defy the expectations of the parties to limit
reimbursements only to work related to documents bearing
the moniker “motion to enforce.” See Bryceland v. Northey,
772 P.2d 36, 39 (Ariz. Ct. App. 1989) (“We will interpret a
contract in a manner which gives a reasonable meaning to
the manifested intent of the parties rather than an
interpretation that would render the contract unreasonable”).
We also reject Defendants’ contention that Paragraph 43
only applies to the enforcement of “provision[s] in the
Stipulation that expressly require[] Defendants to do some
act.” The plain language of the Stipulation supports an award
of fees for enforcement of “any aspect” of the Stipulation in
which Plaintiffs “are the prevailing party with respect to the
dispute.” Plaintiffs have repeatedly prevailed in disputes to
enforce aspects of the Stipulation separate and apart from
provisions directly requiring Defendants to act. For example,
despite the fact that the Stipulation defined being “seen” by
a mental health professional as “an encounter that takes
place in a confidential setting outside the prisoner’s cell,
unless the prisoner refuses to exit his or her cell for the
encounter,” Defendants unilaterally implemented a new
definition of being “seen” to include non-confidential group
and cell-front encounters (where the prisoner is not allowed
30 PARSONS V. RYAN
to leave the cell). Had Plaintiffs not successfully enforced
the definition of being “seen,” Defendants’ interpretation
would have inflated Defendants’ compliance scores for
various Performance Measures pertaining to mental health,
and effectively stifled the enforcement of the Stipulation.
Denying Plaintiffs fees and costs for work relating to this
interpretative dispute merely because it did not directly
enforce a provision that “expressly requires Defendants to
do some act” contravenes the plain language of Paragraph
43, which provides an award of fees for enforcement of “any
aspect” of the Stipulation.
Finally, Defendants argue that Plaintiffs’ time entries
failed to establish their entitlement to fees and costs under
Paragraph 43 because those entries did not contain sufficient
details identifying a specific successful motion to enforce.
The district court concluded that “[a]ll of these matters are
before the Court because Defendants have not satisfied their
obligations under the Stipulation thereby requiring Plaintiffs
to move to enforce it.” We review the district court’s award
for abuse of discretion, under which a “district court abuses
its discretion if its fee award is based on an inaccurate view
of the law or a clearly erroneous finding of fact.” Barjon,
132 F.3d at 500.
Defendants fail to establish that the district court based
its award on an inaccurate view of the law: as we explained
above, the Stipulation does not limit reimbursements to
time-entries relating to a successful motion to enforce.
Moreover, attorneys “need only ‘keep records in sufficient
detail that a neutral judge can make a fair evaluation of the
time expended, the nature and need for the service, and the
reasonable fees to be allowed.’” United Steelworkers of Am.
v. Retirement Income Plan for Hourly-Rated Emps. of
ASARCO, Inc., 512 F.3d 555, 565 (9th Cir. 2008) (citations
PARSONS V. RYAN 31
omitted). A review of the billing entries flagged by
Defendants does not suggest that the court committed legal
error under this standard. 7
We evaluate under the “clearly erroneous” standard the
district court’s factual finding that the activities for which
Plaintiffs sought compensation were eligible enforcement
activities. Barjon, 132 F.3d at 500. In doing so, we are
mindful that the determination of fees “should not result in a
second major litigation,” and “trial courts need not, and
indeed should not, become green-eyeshade accountants.”
Fox v. Vice, 563 U.S. 826, 838 (2011). Rather, the “essential
goal in shifting fees (to either party) is to do rough justice,
not to achieve auditing perfection.” Id. “So trial courts may
take into account their overall sense of [an action], and may
use estimates in calculating and allocating an attorney’s
time” and “appellate courts must give substantial deference
to these determinations, in light of the district court’s
superior understanding of the litigation.” Id. As the Supreme
Court declared, “[w]e can hardly think of a sphere of judicial
decision-making in which appellate micromanagement has
less to recommend it.” Id.
The parties agree that the district court erroneously
awarded fees for certain activities that the district court had
7
In fact, some of the entries flagged by Defendants appear to meet
even the more demanding standard Defendants proffered. For example,
two entries at the end of March 2016 provide that one attorney
“restructured and drafted Motion to Enforce” and another “[e]dit[ed]
motion to enforce.” A review of the docket leads to the reasonable
conclusion that these entries pertain to the motion to enforce filed on
April 11, 2016.
32 PARSONS V. RYAN
previously ruled were prohibited. 8 However, apart from
these entries, Defendants fail to establish that the district
court’s factual findings were “clearly erroneous,” Barjon,
132 F.3d at 500. By lodging blanket objections against
nearly all of Plaintiffs’ entries, Defendants invite the exact
type of “appellate micromanagement” the Supreme Court
cautioned against in Fox. We conclude that Plaintiffs’ time
entries were sufficient for the district court to make a
reasonable attorneys’ fees award, and thus the district court
did not abuse its discretion in relying on them.
2.
Defendants next argue that that the district court
erroneously set Plaintiffs’ attorneys’ base hourly rate higher
than the rate permitted by the Stipulation. For the reasons set
forth below, we agree that the district court erroneously set
the rate higher than permitted under the Stipulation, but
disagree with the alternative rate proposed by Defendants.
The Stipulation provides that “the hourly rate of
attorneys’ fees is governed by 42 U.S.C. § 1997e(d).”
Section 1997e(d) provides: “No award of attorney’s fees . . .
shall be based on an hourly rate greater than 150 percent of
the hourly rate established under section 3006A of Title 18
for payment of court-appointed counsel.” See 42 U.S.C.
§ 1997e(d)(3). Section 3006A, which codifies the Criminal
Justice Act (CJA), requires that the Judicial Conference of
the United States “develop guidelines for determining the
8
As outlined in the parties’ briefs, these hours include: 2.9 hours
related to correspondence with the media and appellate matters and
8.1 hours for maximum-custody Performance Measures. As explained
below, we remand the Attorneys’ Fees Order for other reasons. On
remand, the district court should modify its order to exclude these entries
from any fees award.
PARSONS V. RYAN 33
maximum hourly rates for each circuit” and authorizes the
Judicial Conference of the United States to “raise the
maximum hourly rates . . . at intervals of not less than 1 year
each,” subject to certain limits not relevant here. See
18 U.S.C. § 3006A(d)(1).
The district court determined that the Judicial
Conference set this rate at $146 an hour for 2017 based on a
document prepared by the Administrative Office of the U.S.
Courts called the “Judiciary Fiscal Year 2017 Congressional
Budget Summary” (“Congressional Budget Summary”). It
then multiplied this $146 rate by 150% and arrived at the rate
of $219 per hour for fiscal year 2017. The district court
appears to have undertaken the same analysis in setting
Plaintiffs’ rates at $216 per hour for work performed in
2016, and at $213 per hour for work performed in 2015.
While Plaintiffs essentially defend the district court’s
decision, 9 Defendants argue that the district court erred in
two ways. First, Defendants argue that the district court erred
by consulting the Congressional Budget Summary in order
to derive the base hourly rate. Instead, according to
Defendants, the district court should have derived the rate
from Volume 7 of the Guide to Judiciary Policy (the Guide).
Second, Defendants contend that the $146 figure that the
district court derived from the Congressional Budget
Summary does not reflect the amount that the Judicial
Conference set, and instead, that rate merely represents the
9
Plaintiffs also argue that Defendants forfeited this argument by
failing to raise it to the district court. We disagree. Defendants raised this
argument clearly and distinctly in their objection to Plaintiffs’ second
request for attorneys’ fees. While the district court appears to have
disregarded this filing, the argument was nonetheless made and the issue
was preserved for appeal.
34 PARSONS V. RYAN
“maximum rate authorized in statute” according to the
Congressional Budget Summary’s own description.
We review the district court’s interpretation of the
Stipulation and the relevant statutes de novo. See P.N. v.
Seattle Sch. Dist. No. 1, 474 F.3d 1165, 1168 (9th Cir. 2007)
(“any elements of legal analysis and statutory interpretation
underlying the district court’s attorneys’ fees decision are
reviewed de novo”). While we disagree with Defendants that
the district court erred by consulting the Congressional
Budget Summary, we hold that the district court erred by
relying on the $146 figure in the Congressional Budget
Summary.
As stated above, the Stipulation provides that “the hourly
rate of attorneys’ fees is governed by 42 U.S.C. § 1997e(d).”
We begin by examining the plain language of that statute,
which is a component of the Prison Litigation Reform Act
(PLRA). See Republic of Ecuador v. Mackay, 742 F.3d 860,
864 (9th Cir. 2014). Section 1997e(d) provides: “No award
of attorney’s fees . . . shall be based on an hourly rate greater
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)(3). In other words, Section 1997e(d)
provides the district court the “authority to award attorney’s
fees up to 150 percent of the hourly rate for counsel
established in the Criminal Justice Act, 18 U.S.C. § 3006A.”
Perez v. Cate, 632 F.3d 553, 555 (9th Cir. 2011).
Section 3006A, in turn, requires that the Judicial
Conference “develop guidelines for determining the
maximum hourly rates for each circuit” and authorizes the
Judicial Conference of the United States to “raise the
maximum hourly rates . . . at intervals of not less than 1 year
each,” subject to certain limits not relevant here. See
18 U.S.C. § 3006A(d)(1). Thus, the relevant question is
PARSONS V. RYAN 35
what source definitively reflects the “raise[s]” authorized by
the Judicial Conference.
Defendants assert that we must consult the Guide
because it constitutes the “guidelines of the Judicial
Conference of the United States for the administration and
operation of the Criminal Justice Act,” 10 and because it
explicitly sets forth maximum hourly rates. 11 Defendants
also cite four cases from district courts in the Eastern District
of California and Northern District of California applying
the rates set forth in the Guide.
However, we previously rejected this argument. See
Perez, 632 F.3d at 558. In rejecting other prison officials’
emphasis on the “direction in 18 U.S.C. § 3006A to develop
guidelines for determining the maximum hourly rates for
attorney’s fees,” we explicitly held that these “guidelines are
not binding on a court tasked with determining the maximum
allowable hourly rate under the PLRA, because such
guidelines do not themselves constitute the Judicial
Conference’s determination of the rate that is justified for a
circuit or district.” Id. We concluded that the “calculation
required by the PLRA is not limited by the hourly rates
10
Defendants quote the website hosting the Criminal Justice Act
(CJA) Guidelines, https://www.uscourts.gov/rules-policies/judiciary-
policies/criminal-justice-act-cja-guidelines (last visited Jan. 14, 2020).
11
See Guide to Judiciary Policy, Vol 7 Defender Services, Part A
Guidelines for Administering the CJA and Related Statutes, Chapter 2:
Appointment and Payment of Counsel § 230.16(a), https://www.uscour
ts.gov/rules-policies/judiciary-policies/cja-guidelines/chapter-2-ss-230-
compensation-and-expenses#a230_16 (last visited Jan. 14, 2020)
(“Except in federal capital prosecutions and in death penalty federal
habeas corpus proceedings, compensation paid to appointed counsel for
time expended in court or out of court or before a U.S. magistrate judge
may not exceed the rates in the following table”).
36 PARSONS V. RYAN
suggested by the Judicial Conference” in the Guide. Id.
at 557–58.
Instead, in order to determine the maximum hourly rates
set by the Judicial Conference, we reviewed the
Congressional Budget Summary, which revealed that the
Judicial Conference’s budgetary request to Congress
incorporated a $113 rate. Id. at 555–56, citing Admin. Office
of the U.S. Courts, Fiscal Year 2002 Congressional Budget
Summary 6.13 (Feb. 2001). We also cited the Report of the
Proceedings of the Judicial Conference of the United States,
which explained that the Judicial Conference ratified the
Defender Services Committees’ recommended rate of $113
and modified its budget request accordingly. Id. at 556 n.1,
citing Report of the Proceedings of the Judicial Conference
of the United States (Sept. 19, 2000) at 44–45,
https://www.uscourts.gov/sites/default/files/2000-09.pdf
(last visited Jan. 14, 2020).
Therefore, Perez instructs us that the relevant rate under
Section 3006A is the one that the Judicial Conference
authorized and requested as evidenced by the Congressional
Budget Summary and the Report of the Proceedings of the
Judicial Conference of the United States—not what
Congress ultimately allocated as evidenced by the Guide.
This instruction is consistent with our conclusion in Webb v.
Ada County that “the amount actually paid to CJA counsel”
due to “lack of congressional funding” is irrelevant to the
rate determination under Section 3006A. 285 F.3d 829, 839
(9th Cir. 2002). It is also consistent with the conclusion of
our sister circuit that, because Section 3006A “contains no
reference to congressional appropriations,” the “language of
the statute indicates that Congress intended the PLRA rate to
be determined by the Judicial Conference” alone. Hadix v.
Johnson, 398 F.3d 863, 867–68 (6th Cir. 2005); see also id.
PARSONS V. RYAN 37
(“the maximum allowable attorney fees under the PLRA
should be based on the amount authorized by the Judicial
Conference, not the amount actually paid to court-appointed
counsel under the CJA”).
In light of this precedent, we hold that the “hourly rate
established under section 3006A” within the meaning of
42 U.S.C. § 1997e(d)(3) is the amount the Judicial
Conference authorized and requested from Congress. We
further hold that the district court did not err in consulting
the Congressional Budget Summary to derive this rate. 12
However, the district court’s selection of $146 as the
relevant rate within the Congressional Budget Summary
merits further scrutiny. The Congressional Budget Summary
for Fiscal Year 2017 provides:
The requested funding supports a $6 hourly
rate increase above inflation from $131 to
$137 per hour for non-capital cases in FY
2017 (the maximum rate authorized in statute
is $146 per hour). The judiciary assumes that
there will be a $2 cost-of living adjustment in
FY 2017, raising the CJA base rate from $129
per hour to $131 per hour for FY 2017. The
$6 rate increase is needed to ensure that
courts retain and recruit qualified and
experienced criminal defense practitioners
12
The other source we consulted in Perez—the Report of the
Proceedings of the Judicial Conference of the United States—is silent as
to what rate the Judicial Conference authorized and requested for Fiscal
Year 2017. See Report of the Proceedings of the Judicial Conference of
the United States (Sept. 17, 2015), https://www.uscourts.gov/sites/default/
files/2015-09-17_0.pdf.
38 PARSONS V. RYAN
for their CJA panels. The annualized cost of
this increase is $15.1 million.
Following Perez, we conclude that the $146 base rate
employed by the district court is incorrect because it merely
represents the “maximum rate authorized in statute”—not
the amount authorized and requested by the Judicial
Conference. Instead, the correct CJA panel rate here is $137
per hour for Fiscal Year 2017, 150% of which is $205.50 per
hour.
We vacate the Attorneys’ Fees Order and remand to the
district court with instructions to recalculate the fee award
consistent with this Opinion by determining the correct rates
for each year and applying these rates to Plaintiffs’ time-
entries. As we explained above, however, the district court
should exclude from any fee award the 11 hours erroneously
included, see fn. 8, supra. Finally, we agree with the parties
that the district court should modify the costs award down
by $1,285.79 in light of the district court’s failure to reflect
the downward adjustments in its prior order.
3.
Defendants next argue that the district court erred by
setting the paralegal rate at $219 per hour (the amount the
district court determined to be the maximum rate under the
PLRA) for paralegal work performed in the San Francisco
Bay Area, and at $160 per hour for paralegal work
performed in Washington, D.C. According to Defendants,
the district court should have applied a $125 rate—the rate
for paralegal work in Phoenix, Arizona—for all paralegal
work even though Plaintiffs’ paralegals actually worked in
the San Francisco Bay Area and Washington D.C.
PARSONS V. RYAN 39
We reject Defendants’ argument that the district court
erred in applying Bay Area and D.C. paralegal market rates
and instead of the market rate in Phoenix. “[R]ates, other
than those of the forum, may be employed if local counsel
was unavailable, either because they are unwilling or unable
to perform because they lack the degree of experience,
expertise, or specialization required to handle properly the
case.” Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir.
1992). Plaintiffs have submitted uncontroverted evidence
regarding the unavailability of local counsel to handle
complicated and low-paying prison cases such as this one.
There is thus a factual and legal basis for the district court to
award fees based on rates outside Phoenix. 13
We also reject Defendants’ challenge to the district
court’s assignment of the PLRA maximum rate to the
paralegal work performed in the San Francisco Bay Area. As
we explained in Perez, paralegals are entitled to the PLRA’s
maximum hourly rate if the paralegal market rate exceeds
that cap. 632 F.3d at 557. Defendants do not contest
Plaintiffs’ evidence indicating that the prevailing market rate
for paralegal work was $250 per hour in the San Francisco
Bay Area—which exceeds the PLRA rate. Accordingly,
district court did not err in applying the PLRA maximum rate
to the paralegal work performed in the San Francisco Bay
Area.
However, as we explained above, the correct maximum
rate is the amount the Judicial Conference authorized and
13
Defendants assert that local counsel must have been available
because local law firms are co-counsel for Plaintiffs. However, the
availability of local counsel to handle ancillary matters like meeting with
clients and touring prisons does not imply that such counsel could have
handled the case in its entirety. See Gates, 987 F.2d at 1405.
40 PARSONS V. RYAN
requested from Congress, which can be found in the
Congressional Budget Summary. See Section IV.A.2, supra.
The 2017 maximum rate is $205.50 per hour, id.—not $219.
Accordingly, we reverse and remand with instructions for
the district court to re-calculate the fees awarded for
paralegal work in light of the correct rates.
4.
Finally, Defendants argue that the district court erred by
enhancing the fee award with a double multiplier.
Defendants contend that the Stipulation does not allow for a
multiplier, the PLRA does not allow for a multiplier, and,
even if a multiplier were permissible, the district court
abused its discretion by concluding one was appropriate
here. We reject Defendants’ first two contentions, but agree
with the last.
The Stipulation explicitly incorporates the PLRA’s rules
for determining “reasonable attorneys’ fees and costs,”
because it provides that the hourly rate is “governed by
42 U.S.C. § 1997e(d)”—which codifies the PLRA. The
PLRA, in turn, authorizes multipliers to the base hourly rate
above the cap set by 42 U.S.C. § 1997e(d)(1). See Kelly v.
Wengler, 822 F.3d 1085, 1100 (9th Cir. 2016). 14
14
Defendants argue that we should overrule Kelly because it is
inconsistent with intervening Supreme Court decision Murphy v. Smith,
138 S. Ct. 784 (2018). Under the law of this circuit, panel decisions are
binding on future panels unless the Supreme Court (or our en banc court)
has “undercut the theory or reasoning underlying the prior circuit
precedent in such a way that the cases are clearly irreconcilable.” Miller
v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). That is not the
case here. Murphy concerned only the interpretation of 42 U.S.C.
§ 1997e(d)(2), and it did not disapprove the lodestar method or fee
PARSONS V. RYAN 41
However, the district court abused its discretion by
enhancing the fee award. “A strong presumption exists that
the lodestar figure represents a reasonable fee,” and the
district court must “decide whether to enhance or reduce the
lodestar figure based on an evaluation” of the factors listed
in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir.
1975), “that are not already subsumed in the initial lodestar
calculation.” Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1119
& n.4 (9th Cir. 2000) (citations and internal quotation marks
omitted). “[A]ny reliance on factors that have been held to
be subsumed in the lodestar determination will be considered
an abuse of the trial court’s discretion.” Cunningham v. Cty.
of Los Angeles, 879 F.2d 481, 487 (9th Cir. 1988).
The district court violated this rule when it decided to
“evaluate the applicability of all the Kerr factors to
determine whether an enhancement is appropriate.” The
district court reasoned that it could do so because “there is
no true lodestar analysis here” in light of the fact that the
“Stipulation set the hourly rate . . . .” This was error because
the Stipulation applies the PLRA rate, which already
“subsumes the [Kerr] factors relevant to the determination
of a reasonable attorney’s fee, including the novelty and
complexity of the case and the quality of the attorney’s
performance.” Kelly, 822 F.3d at 1103. Accordingly, the
district court’s reliance on several of the Kerr factors to
justify an enhancement effectively double-counted certain
factors and constituted an abuse of discretion. See
Cunningham, 879 F.2d at 487.
enhancements in any way, despite explicitly discussing both the overall
“surrounding statutory structure of § 1997e(d)” and the lodestar method
in particular. See 138 S. Ct. at 789–90.
42 PARSONS V. RYAN
We therefore vacate the Attorneys’ Fees Order and
remand for the district court to reweigh whether an
enhancement was appropriate.
B.
Plaintiffs’ sole argument on cross-appeal is that the
district court misinterpreted the law by denying Plaintiffs
compensation for law clerk time, which, Plaintiffs assert, is
reimbursable.
As a legal matter, Plaintiffs are correct that
compensation for unpaid law clerks is permissible under
42 U.S.C. § 1988. See Missouri v. Jenkins ex rel. Agyei,
491 U.S. 274, 286 (1989) (rejecting argument that award
“should be based on cost” and instead should be “calculated
according to the prevailing market rates” (internal quotation
marks and citations omitted)); see also, e.g., Rosenfeld v.
U.S. Dep’t of Justice, 904 F. Supp. 2d 988, 1006 (N.D. Cal.
2012) (“That those law students and interns worked without
pay is of no consequence so long as the rates for which their
work was billed is ‘consistent with market rates and
practices.’” (quoting Jenkins, 491 U.S. at 286)). Plaintiffs
are also correct that Section 1988 is applicable here because
the Stipulation provides that “the hourly rate of attorneys’
fees is governed by 42 U.S.C. § 1997e(d),” and that statute,
in turn, authorizes fees under Section 1988. See 42 U.S.C.
§ 1997e(d)(1).
However, Plaintiffs incorrectly assume that the district
court ruled that it could not award compensation for unpaid
law clerk time, when it actually ruled that it would not. The
relevant language from the district court’s decision provides:
“The Court will not authorize reimbursement for a cost
without any evidence that a cost was, in fact, incurred.”
Although Plaintiffs assume that this language reflects legal
PARSONS V. RYAN 43
error, the better interpretation of the district court’s order is
that the district court believed it was unreasonable to award
fees for law clerk time when Plaintiffs’ law clerks were not
paid. Plaintiffs have not provided any arguments for why this
determination was so unreasonable as to be an abuse of
discretion. Cf. Blackburn v. Goettel-Blanton, 898 F.2d 95,
97 (9th Cir. 1990) (“We review the reasonableness of the
district court’s award of fees for abuse of discretion”). We
therefore consider the argument waived. See Edwards v.
Marin Park, Inc., 356 F.3d 1058, 1066 (9th Cir. 2004)
(“[W]e ordinarily will not consider matters on appeal that are
not specifically and distinctly argued in an appellant’s
opening brief” (alteration in original) (citation omitted)).
Accordingly, Plaintiffs’ cross-appeal is denied.
V.
We turn now to the Medical Needs Appeal, in which
Defendants appeal from (A) the Termination Order, (B) the
HNR-Box Order, and (C) seven orders concerning court-
appointed experts tasked with assisting the district court in
enforcing the Stipulation (collectively, the Expert Orders). 15
For the reasons set forth below, we affirm the Termination
Order and the HNR-Box Order, and dismiss the Expert
Orders for lack of jurisdiction.
A.
The Stipulation provides, in relevant part, that
Defendants’ “duty to measure and report on a particular
performance measure . . . terminates if” two conditions are
15
The Expert Orders are comprised of the Millar-Plan Order, the
Millar-Appointment Order, the Compliance-Expert Order, the Stern-
Appointment Order, the Stern-Terms of Engagement Order, the Stern-
Standard of Care Order, and the Abplanalp-Appointment Order.
44 PARSONS V. RYAN
satisfied. First, the “particular performance measure that
applies to a specific complex” must be “in compliance” for
“eighteen months out of a twenty-four month period.”
Second, the “particular performance measure” to be
terminated must not have “been out of compliance” for
“three or more consecutive months within the past 18-month
period.” Otherwise, Defendants’ “duty to measure and report
on any performance measure for a given complex shall
continue for the life of this Stipulation . . . .”
On August 25, 2017, Defendants filed a motion to
terminate the monitoring of certain Performance Measures.
On June 22, 2018 the district court issued the Termination
Order, in which it granted Defendants’ motion in part, and
ordered the parties to submit names of proposed Rule 706
experts to review the monitoring process.
The district court denied Defendants’ request to
terminate certain Performance Measures on two independent
grounds. First, the district court interpreted the Stipulation to
require compliance—as measured by specific reporting
procedures it previously ordered—in 18 of the 24 months
preceding Defendants’ motion to terminate. The district
court determined that some of the Performance Measures
failed under these criteria.
Second, the district court determined that Defendants’
monitoring system was unreliable and held that it could not
terminate monitoring of Performance Measures “without
confirmation that a compliant CGAR 16 is a valid, reliable,
and accurate indicator that Defendants have provided Class
16
“CGAR” (short for “Compliance Green Amber Red”) is used to
evaluate and report Defendants’ monthly performance on the
Performance Measures in the Stipulation.
PARSONS V. RYAN 45
Members the care required by the Stipulation.” The district
court evaluated Defendants’ data integrity and determined
that it “cannot be confident that the CGARs demonstrate
compliance with the Stipulation” because “there are
profound and systemic concerns with the monitoring process
at every stage of the process.”
Defendants argue that the Termination Order should be
vacated for three reasons. 17 We discuss each argument in
turn.
1.
We begin with Defendants’ argument that the district
court erred by finding that ADC’s monitoring system was
unreliable. Defendants argue that the district court erred in
finding system-wide unreliability based on supposedly
isolated incidents by challenging several of the district
court’s inferences from the testimony presented in
evidentiary hearings and citing additional evidence that the
district court declined to credit. 18
17
Additionally, in their opening brief, Defendants originally argued
that no termination motion was required, but abandoned that argument
in their reply.
18
Defendants also cursorily argue that Plaintiffs should have been
estopped from raising their challenges about Defendants’ monitoring
when they did before the district court. However, Defendants provide no
analysis of why Plaintiffs should have been estopped or what type of
estoppel should have applied, nor did they do so in the district court. This
argument is therefore forfeited. See Greenwood, 28 F.3d at 977 (“We
will not manufacture arguments for an appellant, and a bare assertion
does not preserve a claim, particularly when, as here, a host of other
issues are presented for review”).
46 PARSONS V. RYAN
Because Defendants challenge the factual findings of the
district court, to which we defer unless they are clearly
erroneous, Parsons I, 912 F.3d at 495, Defendants must
show that the findings are “illogical, implausible, or without
support in inferences that may be drawn from the record.”
United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir.
2009) (en banc). Defendants have failed to meet this heavy
burden.
Defendants list several instances where they disagree
with the inferences the district court drew from the examples
it provided. However, Defendants do not argue that any of
the examples cited by the district court did not factually
occur. “Where more than one inference can be drawn from
the evidence presented, the inference relied upon by the
district court will not be set aside unless unreasonable as a
matter of law.” Fenton v. Freedman, 748 F.2d 1358, 1361
(9th Cir. 1984). Because Defendants failed to establish that
the district court’s inferences that Defendants failed to
demonstrate the integrity of its CGAR scores were illogical,
implausible, or without support, we conclude that those
findings are not clearly erroneous.
2.
Defendants also challenge the district court’s legal
interpretation of the Stipulation, arguing that, contrary to the
district court’s decision, the Stipulation does not require
compliance in 18 of the 24 months preceding Defendants’
motion to terminate and does not require monitoring to
comply with the “Final Monitoring Guide.”
Even if these interpretations were erroneous, however,
such error would have been harmless because both of these
supposed errors only related to the first of the two
independently-sufficient grounds for the district court’s
PARSONS V. RYAN 47
decision to deny the termination of the Performance
Measures. As we explained above, the district court’s second
ground adequately supports its decision not to terminate
monitoring. As such, these alleged interpretive errors do not
justify vacating the Termination Order.
3.
Defendants also argue that the district court exceeded its
authority in appointing Dr. Stern to investigate ADC’s
monitoring program. This argument is factually challenged:
at the time of the Termination Order Dr. Stern had not been
appointed; the district court only ordered the parties to
submit the names of proposed experts. Simply put, there is
no basis for reversing the Termination Order—which dealt
almost exclusively with interpreting the Stipulation and
making findings of fact about the reliability of ADC’s
monitoring—based on the appointment of an expert five
months later. Accordingly, we reject Defendants’ last
argument and affirm the Termination Order.
B.
When the Stipulation was entered into, healthcare was
provided through an “HNR-Box” system, where prisoners
placed health needs request forms into designated boxes,
nursing staff triaged the forms, and prisoners were provided
care based on the requests. After entering the Stipulation,
ADC discontinued the HNR-Box system and transitioned to
an “Open-Clinic” system, where prisoners would bring
completed health needs request forms to a health unit and be
seen on a first-come, first-served basis. After ADC notified
Plaintiffs’ counsel about this change, Plaintiffs objected to
ADC’s discontinuation of the HNR-Box System.
48 PARSONS V. RYAN
Ultimately, the district court issued the HNR-Box Order,
in which it ordered Defendants to reinstall HNR boxes in the
same number and approximate locations as before the HNR-
Box system was discontinued. The district court ruled that,
“[b]ecause the parties identified the HNR boxes as the
triggering event with some of the performance measures,
this practice cannot be abandoned without proof that it
would have no effect on the measurement of Defendants’
compliance with the Stipulation.” The district court found
that “HNRs are now only tracked when an inmate sees a
health care provider” and that ADC “does not have any
mechanism to track inmates who attempted to attend an open
clinic and does not log when inmates arrived at the open
clinic.” Accordingly, the district court concluded that the
Open-Clinic system could “impermissibly constrict the
numbers of HNRs submitted for measurement and so [ADC]
cannot replace the HNR Boxes for purposes of measuring
compliance with the Stipulation.” The district court
permitted ADC to continue using the Open-Clinic process in
tandem with the HNR-Box System, if it wished.
Defendants argue that the district court erred by ordering
them to resume the HNR-Box System for three reasons.
1.
Defendants first argue that the district court exceeded its
remedial authority under the Stipulation by ordering ADC to
resume the HNR-Box system because the Stipulation does
not require Defendants to collect health needs request forms
in any particular manner. We disagree.
The Stipulation grants the district court the power to
enforce non-compliance through “all remedies provided by
law.” To come within this enforcement authority, the district
court’s order must be (1) a remedy recognized by the law,
PARSONS V. RYAN 49
and (2) consistent with the remainder of the Stipulation.
Parsons I, 912 F.3d at 497–98. Both requirements are met
here. First, the HNR-Box Order is a recognized remedy—an
injunction. We have previously upheld the power of the
district court to issue injunctions in this case. See Parsons I,
912 F.3d at 499–501 (upholding the OPO, which required
Defendants to “use all available community healthcare
services” to ensure compliance with certain Performance
Measures). Second, the HNR-Box Order is consistent with
the remainder of the Stipulation.
Although the Stipulation does not specifically define the
way health-needs request forms must be collected, the only
fair reading of the Stipulation is that the HNR-Box system
was a mutually understood assumption on which the contract
was based. See, e.g., Stip. ¶ 13 (“Defendants . . . will . . .
train dental assistants at ADC facilities about how to triage
HNRs into routine or urgent care lines”); Exh. B,
Performance Measure #36 (“A LPN or RN will screen HNRs
within 24 hours of receipt”); Exh. B, Performance Measure
#37 (“Sick call inmates will be seen by an RN within 24
hours after an HNR is received”); Exh. B, Performance
Measure # 98 (“Mental health HNRs shall be responded to
within the timeframes set forth in the Mental Health
Technical Manual”); Exh. B, Performance Measure #102
(“Routine dental health care wait times will be no more than
90 days from the date the HNR was received”); Exh. B,
Performance Measure #103 (“Urgent dental care wait times,
as determined by the contracted vendor, shall be no more
than 72 hours from the date the HNR was received”).
We conclude the district court did not err by determining
it could enforce the Stipulation to comply with that mutual
understanding. See Bryceland, 772 P.2d 36, 39 (“We will
interpret a contract in a manner which gives a reasonable
50 PARSONS V. RYAN
meaning to the manifested intent of the parties rather than an
interpretation that would render the contract
unreasonable”). 19
2.
Defendants next argue that the district court improperly
placed the burden of proof on Defendants to show that the
Open-Clinic system did not affect compliance-monitoring.
Defendants contend that the Stipulation places the burden of
proving non-compliance on Plaintiffs, and thus Defendants
should not have been forced to prove their own compliance.
Plaintiffs argue that it was reasonable to place the burden on
Defendants because they changed the status quo by
eliminating the HNR-Box system, and that if there was error,
it was harmless in light of the district court’s findings.
We agree that the district court erred by placing the
burden of proof on Defendants. The Stipulation
contemplates the activation of the district court’s remedial
powers only after a motion to enforce, and in this case,
Plaintiffs were the ones who sought to enforce the
Stipulation by moving the court for the HNR-Box Order.
Plaintiffs have not provided a persuasive reason why we
should deviate from the general axiom that “the burden of
proof rests with the moving party,” McDonald v. Harding,
57 F.2d 119, 124 (9th Cir. 1932). Thus, we hold that the
burden of proof properly rested with Plaintiffs as the party
seeking to demonstrate Defendants’ non-compliance.
19
We also reject Defendants’ arguments concerning deference to
prison administrators: the district court afforded any deference due when
it enabled ADC to continue the “open-clinic” system alongside the HNR-
Box system (which ADC had previously employed for years).
PARSONS V. RYAN 51
Nevertheless, we conclude that the district court’s legal
error was harmless. As we discussed in the previous section,
the issue here is whether the district court could order
Defendants to resume the HNR-Box system. The district
court correctly determined that it could so order “[b]ecause
the parties identified the HNR boxes as the triggering event
with some of the performance measures.” The district court
then supported that determination by finding that “the
modified open clinic HNR process may impermissibly
constrict the numbers of HNRs submitted for measurement.”
That factual finding is unchallenged by Defendants on
appeal and is sufficient to support the district court’s order
regardless of which party had the burden of proof regarding
compliance.
3.
Finally, Defendants take issue with a portion of the
HNR-Box Order, in which the district court found “it is
likely that some class members would not be able to brave
the gauntlet of making it to a nurse at the open clinic.”
Defendants contend that this factual finding is clearly
erroneous.
However, even assuming that this statement was clearly
erroneous, such error was harmless. The complete sentence
reads: “Not only have Defendants failed to meet this burden
of proof but the Court is satisfied that it is likely that some
class members would not be able to brave the gauntlet of
making it to a nurse at the open clinic.” We conclude that
this statement was an aside in the HNR-Box Order and did
not factor into the legal issue of whether the Stipulation
permitted Defendants to abandon the HNR-Box system.
Accordingly, we reject Defendants’ last argument and
affirm the HNR-Box Order.
52 PARSONS V. RYAN
C.
We now turn to Defendants’ appeals from the seven
Expert Orders. For the reasons below, we conclude that we
lack jurisdiction over the Expert Orders and dismiss the
Medical Needs Appeal to the extent it pertains to those
orders.
We generally have jurisdiction only over final decisions
of the district courts. See 28 U.S.C. § 1291. A “final
decision” is typically “one which ends the litigation on the
merits and leaves nothing for the court to do but execute the
judgment.” United States v. Washington, 761 F.2d 1404,
1406 (9th Cir. 1985) (citation omitted). In this post-
settlement case, there is no final judgment from which to
appeal. However, this panel previously held that it had
jurisdiction to review the certain enforcement orders
pursuant to 28 U.S.C. § 1291 under the collateral order
doctrine. Parsons I, 912 F.3d at 502–03.
As we explained in Parsons I, an “order that does not
strictly end the litigation may nonetheless be considered
sufficiently final when it is ‘too important to be denied
review and too independent of the merits of the case to
require deferral of review.’” 912 F.3d at 502, quoting Plata
v. Brown, 754 F.3d 1070, 1075 (9th Cir. 2014). “To warrant
review under the collateral order doctrine, the order must
‘(1) conclusively determine the disputed question,
(2) resolve an important issue completely separate from the
merits of the action, and (3) be effectively unreviewable on
appeal from a final judgment.’” Id. at 502. None of the
Expert Orders satisfy these criteria.
In five of the Expert Orders—the Millar-Appointment
Order, the Stern-Appointment Order, the Abplanalp-
Appointment Order, the Stern-Standard of Care Order, and
PARSONS V. RYAN 53
the Stern-Terms of Engagement Order—the district court
merely appointed experts and clarified the scope of those
experts’ duties. The issues presented in appointing, and
assigning duties to, experts are not “effectively
unreviewable,” id., because Defendants will be able to raise
any issues regarding their findings, testimony, or
recommendations in an appeal from a subsequent order
relying on those findings or implementing those
recommendations (if and when such an order is issued).
Accordingly, these orders are neither final orders nor
appealable collateral orders.
In the Compliance-Expert Order, the district court
required the parties to submit briefing regarding what
procedures were necessary to compel compliance with the
Stipulation. Similarly, in the Millar-Plan Order, the district
court required Defendants to file a plan to implement the
recommendations made by an expert.
We lack jurisdiction under 28 U.S.C. § 1291 over these
orders because they do not qualify as either a final order or
an appealable collateral order. An order requiring a prison to
submit a plan is not a final order under § 1291. See Balla v.
Idaho State Bd. of Corrs., 869 F.2d 461, 464–65 (9th Cir.
1989) (joining other courts of appeals in holding that orders
requiring the “submission of detailed plans are not final
orders appealable under 28 U.S.C. § 1291”). Moreover,
Defendants will be able to raise any issues regarding any
operational modifications in an appeal from the district
court’s implementation order (if and when one is issued).
Thus, the issues raised here are not “effectively
unreviewable,” and the collateral order doctrine does not
apply. See Parsons I, 912 F.3d at 502.
We also lack jurisdiction under 28 U.S.C. § 1292
because an “order requiring submission of a remedial plan is
54 PARSONS V. RYAN
generally not an injunction reviewable interlocutorily under
§ 1292(a)(1).” Armstrong v. Wilson, 124 F.3d 1019, 1021–
22 (9th Cir. 1997). There is a narrow exception for timely
appeals that pose a “purely legal question,” such as when
“the order sufficiently specifies the content of the plan to be
submitted,” or when “the exact specifications of the plan
would not alter in a material manner the issues that would be
presented to the court of appeals.” Id. (internal quotation
marks and citations omitted).
Here, however, neither order “specifies the content of the
plan to be submitted” such that the “content and scope of the
remedial scheme” is “sufficiently clear to enable appellate
review” concerning the issues Defendants raise. Id. at 1022.
The district court has not yet ordered the appointment of a
specific type and number of staff, nor did it order Defendants
to submit a plan that adopts verbatim an expert’s specific
staffing recommendations. Without knowing how, or
whether, the district court will do so in the future, “important
issues regarding the nature and extent of the relief still
remain to be resolved and are dependent on the particular
circumstances of the case as it w[ill] develop in the
proceedings subsequent to the entry of the order.” Id.
(alteration and citation omitted). Accordingly, Defendants’
appeal of these orders is premature and we lack jurisdiction
over it.
Consistent with our “strong policy against piecemeal
appeals,” we conclude that we lack jurisdiction over
Defendants’ Medical Needs Appeal to the extent it concerns
the Expert Orders. See Citibank, N.A. v. Oxford Properties
& Fin. Ltd., 688 F.2d 1259, 1261 (9th Cir. 1982).
Accordingly, we cannot address the merits of Defendants’
arguments concerning propriety of any of these orders at this
PARSONS V. RYAN 55
juncture and must dismiss the appeal to the extent it concerns
those orders.
VI.
For the foregoing reasons, we affirm the Contempt
Order, the Termination Order, and the HNR-Box Order; we
vacate the Attorneys’ Fees Order and Judgement, and
remand with instructions to (a) recalculate the fee award by
determining the correct hourly rates for each year consistent
with the process outlined in this Opinion, (b) exclude from
any fee award the 11 hours erroneously included; (c) modify
the costs award down by $1,285.79 in light of the district
court’s failure to reflect the downward adjustments in its
prior order; and (d) reweigh whether a fee enhancement was
appropriate without double-counting the Kerr factors. The
remainder of the Medical Needs Appeal is dismissed for lack
of jurisdiction.
The parties shall bear their own costs on appeal. Any
pending motions are DENIED.
AFFIRMED in part, REVERSED in part,
DISMISSED in part, and REMANDED.