Appeal from the United States District Court for the Northern District of California Claudia Wilken, District Judge, Presiding D.C. No. 4:07-cv-02058-CW.
The opinion of the court was delivered by: O'scannlain, Circuit Judge
Argued and Submitted December 10, 2009 -- San Francisco, California.
Before: Diarmuid F. O'Scannlain, Robert E. Cowen,*fn1 and Johnnie B. Rawlinson, Circuit Judges.
We must decide whether, and to what extent, the publisher of a monthly prison news magazine may recover attorneys' fees from the State of California and various of its officers for monitoring their compliance with a settlement agreement resolving claims about prison conditions.
Prison Legal News ("PLN") is a nonprofit charitable organization based in Seattle, Washington. PLN publishes Prison Legal News, a monthly magazine containing news and analysis relating to the legal rights of prisoners. It also distributes prisoner-oriented books.
In September 2005, PLN contacted the California Department of Corrections and Rehabilitation ("CDCR") with concerns about the delivery of its materials to prisoners in the CDCR's custody. PLN complained that some CDCR institutions refused to deliver Prison Legal News to prisoners housed in particular units, while other CDCR institutions disallowed delivery of the magazine altogether on the ground that PLN was not an "approved vendor." PLN also complained about bans on its hardcover books. In PLN's view, these and other CDCR policies violated PLN's First Amendment right to free speech and Fourteenth Amendment right to due process of law.
On December 11, 2006, after a year of negotiation, PLN and the CDCR entered into "an agreement to settle specific claims . . . alleging that the CDCR, or CDCR employees, censored PLN publications." The agreement was signed on behalf of the CDCR by James E. Tilton, Secretary of the CDCR, and Michael W. Jorgenson, Deputy Attorney General of the State of California. The parties agreed, among other things, that "[t]he practice by CDCR adult institutions of requiring publishers such as PLN to obtain approved vendor status shall cease"; that "[t]he practice by CDCR adult institutions of banning hardcover publications shall cease"; that "when CDCR adult institutions disallow books, magazines, newspapers, or periodicals, the adult institutions shall notify the inmate that it is disallowed and will notify the publisher in compliance with due process requirements"; and that "CDCR will develop a centralized list of disapproved magazines or publications that are prohibited as offensive, threatening, contain security concerns, or obscene."
The CDCR also agreed to pay PLN $65,100 for "alleged violations of constitutional and statutory rights under federal and state law," and to pay PLN's counsel "reasonable attorneys' fees, costs and expenses until the time that this Settlement Agreement is signed by the parties." In addition, paragraph 7(b) of the agreement provided:
PLN and its attorneys expressly reserve their rights to pursue claims for attorneys' fees, costs and expenses for work performed after the time the Settlement Agreement is signed by all parties, including for work spent on substantive issues related to this Agreement and/or work spent securing their fees for fees and collecting any and all fees, costs and expenses that are due to them. The CDCR expressly reserves its right to oppose any such claim.
Finally, the parties agreed that PLN would file a complaint in federal district court within 150 days of the signing of the agreement, alleging the claims that the agreement "resolved." The parties stipulated that the agreement "shall accompany the complaint," and that following dismissal of PLN's claims, "the Court will retain jurisdiction to enforce the Settlement ...