Taylor v. W.L. Sterrett Reply Brief for Plaintiffs-Cross-Appellants

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
No. 79-3851

JOSEPH TAYLOR, ET AL.,

VS .
Plaintiffs - Cross-Appellants.

W. L. STERRETT, ET AL.,
Defendants - Cross-Appellees.

On Appeal from the United States District Court 
for the Northern District of Texas 

Dallas Division

REPLY BRIEF FOR PLAINTIFFS - CROSS-APPELLANTS

JACK GREENBERG 
JAMES M. NABRIT, III 
JOEL BERGER
CHARLES STEPHEN RALSTON 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

ATTORNEYSFOR PLAINTIFFS - 
CROSS -APPELLANTS



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
No. 79-3851

JOSEPH TAYLOR, ET AL . ,
Plaintiffs - Cross-Appellants.

VS .
W. L. STERRETT, ET AL. ,

Defendants - Cross-Appellees.

On Appeal from the United States District Court 
for the Northern District of Texas 

Dallas Division

REPLY BRIEF FOR PLAINTIFFS - CROSS-APPELLANTS

Cross-appellees argue that because the proceedings 
pending in this case on the effective date of 42 U.S.C. §1988 
were relief proceedings, the Legal Defense Fund is not en­
titled to attorney's fees for work done earlier in the case. 
Brief for cross-appellees, p. 11. This position is patently 
contrary to §1988 and the purposes underlying its passage.

The Civil Rights Attorney's FeesAct of 1976 authorizes 
fees "[i]n any action or proceeding," and is fully retro­
active to cases "pending" on the date of its enactment.
Rainey v. Jackson State College, 551 F.2d 672, 675 (5th Cir.
1977); Corpus v. Estelle, 605 F.2d 175, 177 & n.2 (5th Cir.



1979), cert, denied, ___ U.S. ___, 48 U.S.L.W. 3569
(March 3, 1980). As this Court recently noted in Corpus, 
a primary objective of the statute's retroactivity was to 
"encourage continued active representation on the part of those 
attorneys engaged in protracted civil rights litigation pending 
at the time of enactment." Corpus v. Estelle, supra, 605 F.2d 
at 178 n .4 (5th Cir. 1979). The Act did not bifurcate civil 
rights cases into 1) initial proceedings and 2) relief pro­
ceedings for purposes of determining pendency, and neither 
did any of the legislative reports accompanying its passage.

This case was most definitely pending on October 19, 1976, 
the date the Act took effect. Indeed, it was actively pending 
and had been so for several months. For example, on April 12, 
1976, the district court ordered defendants to file a progress 
report by September 1, 1976 (R.1014). On July 15, 1976, the
court ordered that several additional parties be joined as 
defendants (R.1081). Once the September 1st progress report 
had been filed (R.1154-1254), the court on September 29th 
conducted a hearing concerning its contents (R. Vol. XIV).
On October 4, 1976, the court ordered that an additional 
report be filed by February 1, 1977, and cautioned that 
"[ujnless definite plans have been made and implementation 
begun by February 1, 1977, the jail will be closed to addi­
tional inmates" (R. 1272)- Additional interim reports were
filed on December 1, 1976 (R. 1289-99), and on December 2nd 
the court entered another order —  from which defendants 
did not appeal —  providing further relief (R. 1301-04).

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The reports required to be filed by February 1, 1977 were 
submitted on that date (R. 1307-37), and on February 8, 1977, 
the court appointed a special master (R. 1341).

Thus, throughout the period surrounding passage of the
Act this case was in active litigation, with continued pres-

1/sure being exerted to secure the objectives of the lawsuit.
Such a case may not be dichotomized into "initial" and "relief" 
proceedings to defeat the express intent of Congress to re­
troactively compensate civil rights attorneys for earlier work 
done in cases pending when the Act was passed.

In Corpus v. Estelle, supra, this Court affirmed an award 
of attorney's fees for successful representation of plaintiffs 
in both the initial case, which ran from 1968-71, and in the 
subsequent relief proceedings "to enforce this Court's [1971] 
decision," which ran from 1972-77. 605 F.2d at 176. The
Court hardly denied fees for the period from 1968-71 merely 
because the proceeding pending when the Act was passed sought 
enforcement of constitutional rights rather than their initial 
declaration. Indeed, more than half the hours awarded in 
Corpus were for the 1968-71 litigation of the initial case, 
litigation which had long terminated by the time the Act was

1/ The proceedings described above are but a fraction of the 
overall activity taking place in this case around the time the 
Act took effect. For a more complete summary of this period see 
the district court docket sheet, pp. 7, 7A, 8, 8A, 9 and 9A.

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passed.
Similarly, in Brown v. Culpepper, 559 F.2d 274 (5th Cir.

1977), judgment on the merits had been determined by an order
entered on July 27, 1975, and the only subject outstanding at
the time the Act took effect was defendants' compliance. Indeed,
there was no enforcement activity at all from August-December of
1976; and in January of 1977 defendants merely filed a compliance
report, which was approved by the district court. Nonetheless,
this Court held that plaintiffs' motion for attorney's fees
—  a motion seeking fees primarily for the proceedings on the

1/merits in June and July of 1975 —  should have been granted.
Cross-appellees' claim that Escamilla v. Santos. 591 F.2d 

1086 (5th Cir. 1979), reached a contrary result is unfounded.
In Escamilla, the district court had already entered a final 
judgment denying attorney's fees prior to passage of 42 U.S.C.

2/

2/ Plaintiffs in Corpus sought fees for 460.1 hours, of which 
279.8 covered the 1968-71 proceeding. See Exhibit C to affi­
davit of William Bennett Turner in support of the motion for 
attorney's fees in Corpus (S.D. Tex., Houston Div., Civil 
Action No. 68-H-348). The district court allowed fees for all 
of the hours claimed by Mr. Turner, and this Court affirmed.
605 F .2d at 180-81 n. 10.
3/ The relevant dates in Brown, set forth in appellants' brief 
before this Court in that case (No. 77-1652), pp. 2-7, are as 
follows: June 23, 1976: complaint filed; July 27, 1976: order
entered ruling on the merits; October 19, 1976: effective date
of 42 U.S.C. §1988; December 20, 1976: motion for attorney's
fees pursuant to the Act filed; January 17, 1977: defendants'
compliance report filed; January 24, 1977: injunction of
July 27th dissolved in view of defendants' compliance; March 2, 
1977: attorney's fees denied by the district court.

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§1988, and the plaintiffs had not appealed from that judgment. 
Additionally, the case had been dormant since the summer of 
1976 and had not been revived until an application concerning 
relief was filed only 18 days prior to the effective date of 
the Act —  at a time when it was widely known that the bill 
in Congress was about to become law. Under these unique cir­
cumstances, the Escamilla court obviously believed that to 
declare the case revived for purposes of the Act would be un­
just. Escamilla hardly stands for the proposition that in 
every civil rights case with active and hard-fought relief 
proceedings ongoing as of October 19, 1976, plaintiffs must 
be denied attorney's fees for all work done before the case 
entered the relief stage.

As this Court has noted, the Civil Rights Attorney's 
FeesAct of 1976 was made retroactive because its express pur­
pose was remedial. See Corpus v. Estelle, supra, 605 F.2d 
at 178 n. 4. Prior to Alyeska Pipeline Service Company v. 
Wilderness Society, 421 U.S. 240 (1975), plaintiffs clearly
could have recovered attorney's fees in this Circuit under

4/
the "private attorney general" doctrine for the protracted 
litigation that resulted following the district court's initial 
decision in 1972. Alyeska created a gap in our civil rights

4/ See, e.g., Cornist v. Richland Parish School Board, 495 
F.2d 189, 192 (5th Cir. 1974); Fairley v. Patterson, 493 F.2d 
598 (5th Cir. 1974); Cooper v. Allen. 467 F.2d 836 (5th Cir. 
1972); Lee v. Southern Home Sites Corp., 444 F.2d 143 (5th 
Cir. 1971).

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laws; the Act was passed and made retroactive to remedy that 
gap. Where a case was in active litigation on the date of 
passage of the Act, the prevailing party's attorneys must be 
compensated for the hours spent in prior years which led to 
their clients' success on the merits.

Respectfully submitted,

JACK GREENBERG 
JAMES M. NABRIT, III 
JOEL BERGER
CHARLES STEPHEN RALSTON 
Suite 2030 
10 Columbus Circle 
New York, New York 10019

ATTORNEYS FOR PLAINTIFFS - 
CROSS-APPELLANTS

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CERTIFICATE OF SERVICE

I, JOEL BERGER, hereby certify that on April 29, 1980,
I served a copy of the within reply brief for plaintiffs - 
cross-appellants upon counsel for defendants - cross-appellees 
by depositing same in the United States mail, first class 
mail, postage prepaid, addressed as follows: Earl Luna, Esq.
and Thomas V. Murto, III, Esq., Luna & Murto, 2416 LTV Tower, 
1525 Elm Street, Dallas, Texas 75201.