Opinion-Order Denying Recovery of Wood Expenses

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United States Court of Appeals 

FIFTH CIRCUIT 

OFFICE OF THE CLERK 

  

GILBERT F. GANUCHEAU TEL. 504-589-6514 
CLERK 600 CAMP STREET 

NEW ORLEANS, LA 70130 

January 29, 1991 

MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW: 

No.90-8014 - LULAC v. Clements, etc., et al. 

(D.C. Docket No. MO-88-CA-154 ) 

Enclosed is a copy of an opinion-order this day entered by 
the court in the above referenced cause. 

Very truly yours, 

GILBERT F. GANUCHEAU, Clerk 

RONNIE 
Deputy Clerk 
  

Enclosure 

ALL COUNSELS OF RECORD 

 



  

U.S. COURT OF APPEALS 
IN THE UNITED STATES COURT OF APPEALS Fl L E D 

FOR THE FIFTH CIRCUIT 

JAN 2 9 1991   
No. 90-8014 

  

ILBE 
LEAGUE OF UNITED LATIN AMERICAN SuBLRY B SANGHA 

CITIZENS COUNCIL NO. 4434, 
Plaintiffs-Appellees, 

and 
JESSE OLIVER, ET AL., 

Intervening 
Plaintiffs-Appellees, 

versus 
WILLIAM P. CLEMENTS, ETC., ET AL., 

Defendants, 
JIM MATTOX, ET AL., 

Defendants-Appellees, 
Appellants, 

versus 
JUDGE F. HAROLD ENTZ, ETC., 

JUDGE SHAROLYN WOOD, ETC., 
and GEORGE S. BAYOUD, JR., ETC., 

Defendants-Appellants, 
and 

TOM RICKHOFF, SUSAN D. REED, JOHN 

J. SPECIA, JR., SID L. HARLE, SHARON 
MACRAE and MICHAEL P. PEDAN, Bexar 

County, Texas State District Judges, 
Appellants. 

  

AppealsFrom the United States District Court 
for the Western District of Texas 

  

( January 29, 1991 H 

  

Before CLARK, Chief Judge, 
GEE, POLITZ, KING, JOHNSON, JOLLY, HIGGINBOTHAM, DAVIS, JONES, 
SMITH, DUHE, WIENER, and BARKSDALE, Circuit Judges.” 

GEE, Circuit Judge: 

  

x Judges Williams and Garwood took no part in the Court’s deliberations or 

decision of this appeal. When this case was orally argued before and consid- 

ered by the court, Judge Reavley was in regular active service. He partici- 

pated in both the oral argument and the en banc conference. 

In United States v. American-Foreign Steamship Co., 363 U.S. 685, 80 

S.Ct. 1336, 4 L.Ed.2d 1491 (1960), the Supreme Court, interpreting 28 U.S.C. § 

371(b), decided which senior judges are eligible to participate in an en banc 

court. Compare United States v. Cocke, 399 F.2d 433, 435 n. 4 (5th Cir. 1968) 

(en banc). As Judge Reavley reads the American-Foreign Steamship Co. opinion, 

he considers himself ineligible now to participate in the decision of this 

case, and he has not therefore done so. 

 



We are asked by hindsight to treat as a plaintiff state Dis- 

trict Judge Sharolyn Wood, who originally intervened on the side 

of the named state defendant in a challenge to Texas'’s method of 

electing such judges as she and, with the underlying case decided 

in Texas's favor, to assess her attorney fees against Texas. We 

conclude that Judge Wood participated in the litigation as a 

defendant in all respects and cannot recover her expenses from 

another prevailing defendant. 

Suing Texas through its officials, LULAC and certain indi- 

viduals claimed that the election of Texas district judges 

diluted the votes of blacks and Hispanics, thus violating the 

Fourteenth and Fifteenth Amendments to the U.S. Constitution, the 

Civil Rights Act of 1864, 42 U.S.C. § 1983, and section two of 

the Voting Rights act, 42 U.S.C. § 1973. Asserting interests 

both as a Texas voter and as a sitting Texas district judge, 

Judge Sharolyn Wood moved to intervene on the side of the defen- 

dant -- the state. The court allowed her to intervene in her 

personal capacity, permitting Dallas County District Judge Harold 

Entz to do so as well. The court later held that the state’s 

county-wide district election system, although constitutional, 

diluted the votes of minorities in all challenged counties and 

thus violated § 2(b) of the Voting Rights Act. 

Judge Wood filed and was granted an interlocutory appeal 

from this order and a stay of the district court’s adopted 

interim plan. Texas also appealed the order. On appeal, a panel 

of our court reversed on reasoning which avoided prior 

controlling precedent. We later overruled the precedent in  



question and, sitting en banc, reversed on different reasoning. 

Judge Wood now asks us to award to her reasonable attorneys’ fees 

against Texas pursuant to the Civil Rights Act’s and the Voting 

Rights Act’s fee shifting provisions for prevailing parties. 42 

U.S.C. §$:1988; 42 U.S.C. § 1973 l(e).} 

Interpreting these provisions, the Supreme Court probed the 

underlying purpose of the statutes -- vindicating civil rights -- 

and distinguished between prevailing plaintiffs and prevailing 

defendants. The Court viewed plaintiffs, unlike defendants, as 

"private attorneys general" prosecuting a policy accorded the 

highest priority by Congress. The Court held that the fee- 

shifting provisions required fee awards to prevailing plaintiffs 

absent special circumstances, the expense thus falling upon the 

adjudicated violator of civil rights. Independent Federation of 

Flight Attendants v. Zipes, 109 S.Ct., 2732, 2736 (limits on 

recovery from losing defendant-intervenors); Christiansburg 

Garment: Co. 'v. EEOC, 454 U.S. 412, 417-21. Prevailing 

defendants, on the other hand, may recover fees only if the 

plaintiff's cause of action is frivolous, unreasonable, or 

without foundation. Id. 

The latter standard applies to Judge Wood, who positioned 

herself as a defendant by intervening on the side of the named 

defendant, Texas. We must decline Judge Wood's invitation to 

  

1 As a preliminary matter, Texas now attacks Judge Wood‘’s standing to 

intervene in the first place. We find she had standing as a sitting elected 

judge. See L.U.L.A.C. v. Clements, 884 F.2d 185, 188 (5th Cir. 1989); 

Williams v. State Board of Elections, 696 F.Supp. 1563, 1570-72 (N.D. Ill. 

1988).  



  

delve deeper, to distinguish defendant-intervenors from defen- 

dants, and to accord her, as an intervenor, special treatment. 

While equity considerations, particularly the difference 

between named defendants as violators of federal law and defen- 

dant-intervenors as merely interested persons asserting other 

rights, caused the Supreme Court to limit an intervenor’s liabil- 

ity regarding a prevailing party's attorney fees, the Court has 

never held or so much as insinuated that such considerations 

extend to imposing a prevailing intervenor’s expenses upon a pre- 

vailing named defendant. Zipes at 2736. 

Even assuming that there may be a factual setting in which 

equity could persuade us to look beyond the procedural posture of 

a case to a party’s actual role, this is not such a case; nor 

would such an exercise alter Judge Wood’s position.2 Given the 

  

2 For example, in section 5 declaratory judgment actions under the Voting 

Rights Act, the parties positioned as "defendants" may actually be the parties 

charging civil rights violations and seeking to assert their civil rights. 

See, e.g. Donnell v. United States, 682 F.2d 240 (D.C.Cir. 1982) (County Board 

of Supervisors sought declaratory judgment of its redistricting plan’s non- 

discriminatory purpose/effect after the United States Attorney General failed 

to approve its redistricting plan, and black voters intervened on the side of 

the United States). In Donnell, the court disregarded the case’s procedural 

posture, classified the prevailing intervenors according to their actual role, 

and remanded with instructions to consider the following factors when deter- 

mining whether to shift the intervenor’s reasonable attorney fees to the 

losing party: 

(1) whether the attorney general did not adequately 

represent the intervenor’s interest; 

(2) whether the intervenors proposed different theo- 

ries and arguments for the court’s consideration, and 

(3) whether the work the intervenor performed was of 

important value to the court. 

Id. We too have annunciated these factors in a different context. 

Posada v. Lamb County, Tex., 716 F.2d 1066, 1074-75 and n.13 (5th Cir. 

 



  

Supreme Court’s apparent rationale for applying different 

standards to plaintiffs and defendants, any such reclassification 

of a party’s role must hinge upon whether the parties in question 

acted as private attorneys general within the scope of the 

statutes under which Congress provided fee entitlement. Cf. 

Alabama Power Co. v. Goruch, 672 F.2d 1 (D.C.Cir. 1982) (denying 

intervenor on the side of the Environmental Protection Agency 

(EPA) any assessment of their attorney fees against the EPA after 

the EPA and intervenor prevailed.) Judge Wood participated in 

all ways as one defending against a civil rights claim and not as 

one seeking to establish and rectify a violation of civil 

rights.3 

If the losing plaintiff’s action were frivolous, unreason- 

able, or without foundation, and if Judge Wood qualified as a 

prevailing party aligned with the defendant, she might be 

entitled to a fee award against the losing plaintiff. We need 
  

not determine if Judge Wood otherwise qualified: She asks us to 

assess her fees, not against a losing party, but rather against 

the prevailing, named defendant. She insists the Texas attorney 

general could not have won the case without her and that he did 

not adequately defend her interests or properly perform his 

official duties. Even assuming that Judge Wood is factually 
  

1983) (whether to award fees due to pre-litigation efforts at approval proceed- 

ing before state attorney general). 

3 Judge Wood asserts that her opposition to the proposed interim plans, 

labeled by her as "patently unconstitutional," effectively cast her in the 

posture of a plaintiff because she could have elected to attack the plans 

collaterally rather than move for an injunction and appellate review of the 

district court’s opinion. We do not address the issue; she intervened prior 

to this stage, and always as one disputing claimed civil rights violations, 

not as one asserting such violations. 

 



  

correct, Texas and not Congress charges Texas's Attorney General 

with the duties which Judge Wood maintains that he failed to 

perform; her complaints do not fall under the Civil Rights Act or 

the Voting Rights Act; and she cannot use their fee-shifting 

provisions to recover against Texas for his asserted inadequacy. 

See Donnell v. United States, 682 F.2d 240 (D.C.Cir. 1982). She 

being one who occupied the position of a defendant by reason of 

her intervention, Judge Wood’s right to recover attorneys’ fees 

under these provisions cannot rise above what it would have been 

had she originally been joined as such a defendant. 

Accordingly, we must deny Judge Wood’s requests for attorney 

fees. 

DENIED.