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 .,

Plaintiffs - Cross-Appellants.

VS .

W. L. STERRETT, ET A L .,

Defendants - Cross-Appellees.

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

Dallas Division

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

ATTORNEYS FOR PLAINTIFFS - 
CROSS-APPELLANTS



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

No. 79-3851

JOSEPH TAYLOR, ET A L .,
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

CERTIFICATE OF INTERESTED PERSONS

The undersigned, counsel of record for plaintiffs - 
cross-appellants, certifies that the following listed per­

sons have an interest in the outcome of this case. These 
representations are made in order that the Judges of this 
Court may evaluate possible disqualification or recusal 

pursuant to Local Rule 13.6.1.

1. The four named plaintiffs who commenced this class 

action in 1971: Joseph Taylor, James Douglas Thompson,

l



Charles William Bruce, and John Henry Woods, Jr.

2. The plaintiff class, consisting of all persons in­
carcerated in the Dallas County Jail.

3. The NAACP Legal Defense and Educational Fund, Inc., 

which seeks attorney's fees on this cross-appeal.
4. The Dallas Legal Services Foundation, Inc., which 

also seeks attorney's fees on a separate cross-appeal.
5. John F. Jordan, who was awarded attorney's fees by 

the district court and is counsel for plaintiffs-appellees on 

defendants' appeal contesting that award.
6 . The defendants in this action, consisting of:

a) Dallas County, Texas
b) Commissioners Court of Dallas County, Texas

c) County
d) County

e) County
f) County
g) County

Judge Garry Weber 
Commissioner Jim Jackson 

Commissioner Nancy Judy 
Commissioner Jim Tyson 
Commissioner Roy Orr

^f5EL BERGER ^
Counsel for Plaintiffs 
Cross-Appellants

- ii -



STATEMENT URGING DISPOSITION 
OF THIS APPEAL THROUGH SUMMARY 
CALENDAR

In accordance with Local Rule 18, cross-appellants urge 
the Court to dispose of this appeal summarily without oral 
argument.

This appeal does not raise any complex or novel question 
that requires elucidation by oral argument. Where attorney's 

fees have been denied to counsel for the prevailing party in 

a civil rights action, and there are no special circumstances 

justifying the denial of attorney's fees, it has been this 
Court's practice to reverse summarily. See, e.g., Criterion 

Club of Albany v. Board of Commissioners, 594 F.2d 118 (5th 
Cir. 1979); Bunn v . Central Realty of Louisiana, 592 F.2d 891 
(5th Cir. 1979); Brown v. Culpepper, 559 F.2d 274 (5th Cir. 

1977).

- iii -



TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS .....................  i

STATEMENT URGING DISPOSITION OF THIS APPEAL THROUGH
SUMMARY CALENDAR ..................................  iii

TABLE OF AUTHORITIES ...................................  v

ISSUE PRESENTED .........................................  1
f

STATEMENT OF THE CASE ..................................  1
A. Course of Prior Proceedings ...................  1

B. Statement of Facts .............................  3

SUMMARY OF ARGUMENT ....................................  5
ARGUMENT

THE DISTRICT COURT ERRED IN DENYING ATTORNEY'S 
FEES AND COSTS TO THE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC., FOR ITS REPRESENTATION 
OF THE PREVAILING PARTY IN THIS ACTION .......... 6

CONCLUSION .............................................  10

PAGE

IV



TABLE OF AUTHORITIES

Brown v. Culpepper, 559 F.2d 274 (5th Cir.
1977) ...........................................  6,7,9,11

Bunn v. Central Realty of Louisiana, 592
F .2d 891 (5th Cir. 1979) ....................... 6

Corpus v. Estelle, 605 F.2d 175 (5th Cir.
1979), cert. denied,   U.S.  , 48
U.S.L.W. 3569 (March 3, 1980) .................  8,9,11

Criterion Club of Albany v. Board of Commis­
sioners, 594 F.2d 118 (5th Cir. 1979) ........  7,11

Crowe v. Lucas, 595 F.2d 985 (5th Cir. 1979) ......  6

Davis v. Board of School Commissioners of
Mobile County, 526 F.2d 865 (5th Cir. 1976) ... 9

Fairley v. Patterson, 493 F.2d 598 (5th Cir.
1974) ...........................................  9

Gates v. Collier, 559 F.2d 241 (5th Cir. 1977) ....  9
Gore v. Turner, 563 F.2d 159 (5th Cir. 1977) ......  6,9
Harkless v. Sweeny Independent School District,

608 F .2d 594 (5th Cir. 1979) ..................  6,9,11

Hodge v. Seiler, 558 F.2d 284 (5th Cir. 1977) .....  9

Hutto v. Finney, 437 U.S. 678 (1978) ...............  8

Miller v. Amusement Enterprises, Inc., 426 F.2d
534 (5th Cir. 1970) ............................  9

Miller v. Carson, 563 F.2d 741 (5th Cir. 1977) ....  9
Morrow v. Dillard, 580 F.2d 1284 (5th Cir. 1978) ... 6,9
Northcross v. Board of Education of Memphis 

City Schools, 611 F.2d 624 (6th Cir.
1979)   10

Rainey v. Jackson State College, 551 F.2d 672
(5th Cir. 1977) ................................  8

GASES: PAGE

v



CASES

Reynolds v. Coomey, 567 F.2d 1166 (1st
Cir. 1978) ...............................

Taylor v. Sterrett, 344 F.Supp. 411 (N.D.
Tex. 1972), aff'd in part and vacated 
in part. 499 F.2d 367 (5th Cir. 1974), 
cert. denied. 420 U.S. 983 (1975) ......

Taylor v. Sterrett, 527 F.2d 856 (5th Cir.
1976) ....................................

Taylor v. Sterrett, 532 F.2d 462 (5th Cir.
1976) ....................................

Taylor v. Sterrett, 600 F.2d 1135 (5th Cir.
1979) ....................................

Thompson v. Madison County Board of Education, 
496 F .2d 682 (5th Cir. 1974) ............

OTHER AUTHORITY:

House Report No. 94-1558, 94th Cong. 2d Sess. 
(Sept. 15, 1976) ........................

10

1.2.3.4.6.7

2

2.7 

2,7,8 

9

9

PAGE

vi



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 

No. 79-3851

JOSEPH TAYLOR, ET A L .,

Plaintiffs - Cross-Appellants.
VS .

W. L. STERRETT, ET A L .,

Defendants - Cross-Appellees.

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

Dallas Division

BRIEF FOR PLAINTIFFS - CROSS-APPELLANTS

ISSUE PRESENTED

Whether the district court erred in denying attorney's 
fees and costs to the NAACP Legal Defense and Educational 

Fund, Inc., for its representation of the prevailing party 
in this action.

STATEMENT OF THE CASE

A . Course of Prior Proceedings

In Taylor v. Sterrett. 344 F.Supp. 411 (N.D. Tex. 1972), 

the district court (Hon. Sarah T. Hughes) held that numerous 

conditions and practices at the Dallas County Jail violated



the constitutional and statutory rights of the plaintiff class. 
This Court affirmed in part, vacated in part, and remanded for 

further proceedings. 499 F.2d 367 (5th Cir. 1974), cert, denied, 
420 U.S. 983 (1975). A subsequent appeal by defendants from one 
of the district court's remedial orders was dismissed, 527 F.2d 

856 (5th Cir. 1976). In still another appeal by defendants, 
challenging other remedial provisions with respect to the jail's 
correspondence and visitation regulations, this Court affirmed 
and modified in part, and vacated and remanded in part. 532 F.2d 

462 (5th Cir. 1976). Remedial proceedings in the district court 
continued through 1976 and 1977, culminating in Judge Hughes' 

appointment of a Special Master and her entry of two additional 
remedial decrees on April 25 and May 12, 1977. On August 16, 
1979, this Court held that the district court's role in the case 

"is now complete," vacated the 1977 remedial decrees, and di­
rected the district court to discontinue further exercise -of 
its retained jurisdiction. 600 F.2d 1135, 1141, 1145 (5th Cir. 
1979) .

On July 3, 1979, plaintiffs filed an amended motion for
1/

attorney's fees in the district court, seeking fees and costs 
for the attorneys who had represented plaintiffs throughout the

1/ A prior motion for attorney's fees, filed on August 15, 1974, 
had not been ruled upon. See district court record, p. 498.

2



course of the litigation. On October 23, 1979, the district 

court granted $26,417.50 to one of plaintiffs' attorneys 

(John F. Jordan) but totally denied fees for the work of 

two other attorneys, Elizabeth Julian of the Dallas Legal 

Services Foundation and Stanley A. Bass of the NAACP Legal 
Defense and Educational Fund, Inc. (hereinafter "Legal Defense 
Fund"). This appeal is taken from the district court's de­

termination to deny fees for the time expended by Mr. Bass 
and the costs incurred by the Legal Defense Fund.
B . Statement of Facts

Mr. Bass' affidavit of June 2, 1977, annexed to plaintiffs'
2/

amended motion for attorneys fees, R. 1919-16, details the 
hours he spent on this case and the out-of-pocket expenses 
incurred by the Legal Defense Fund.

Mr. Bass, an attorney since 1963 and a nationally recog­
nized specialist in prisoners' rights litigation, R. 1910, 1911, 
1913-15, was one of plaintiffs' attorneys from the commencement 

of this action in 1971. His principal role was at the appellate 
level. Mr. Bass participated in all phases of defendants' first 

appeal to this Court, including all briefing and stay applications, 
and presented oral argument for plaintiffs in New Orleans in 

March of 1973. R. 1916. Following this Court's decision (499

2/ Number preceded by "R." refer to pages of the record on 
appeal of this Court.

3



F.2d 367), Mr. Bass wrote the brief in opposition to defen­
dants' certiorari petition (denied at 420 U.S. 983). Ibid.

Mr. Bass also drafted portions of plaintiffs' briefs in 
response to the next two appeals brought by defendants in this 
Court, as well as working with plaintiffs' Dallas attorneys on 
various aspects of the remedial proceedings in the district 

court. R. 1916. His total time spent on the case amounted 

to 70.6 hours. At a rate of $75 per hour, Mr. Bass requested 

attorneys fees totalling $5,295. R. 1912, 1916.
Mr. Bass also requested reimbursement of the Legal Defense 

Fund's costs, consisting primarily of the airplane fare and 
incidental expenses of his trip to New Orleans to argue the 

first appeal, and sums advanced to one of his associates 
(Robert Byrd, Esq., of San Antonio) for three trips to Dallas 
in connection with the drafting of the first appellate brief. 

Total costs requested were $511.03. R. 1911.
Defendants' papers in oppostion to plaintiffs' motion

for attorney's fees did not contest Mr. Bass' calculation
of the hours spent on the case, the hourly rate requested
or the bill of costs. Instead, defendants argued only that
organizations such as the Legal Defense Fund

... make competent counsel 
available funded by government 
funds or private donations.
There is no need to award 
attorneys' fees to such entities 
in order to make competent counsel 
available and such an award would 
prove to be a windfall to such 
entity.

R. 1934.
4



On October 23, 1979, the district court entered an order 

denying attorney's fees and costs to the Legal Defense Fund. 
Judge Hughes' order does not state any reasons for her de- 

c is ion. R . 1937 .

SUMMARY OF ARGUMENT

The prevailing party in a civil rights action is entitled 

to attorney's fees under 42 U.S.C. §1988 unless there are special 
circumstances that would render such an award unjust. Plain­
tiffs obviously were the prevailing party in this action. This 

Court's August 1979 determination that sufficient progress had 

been made for the district court to relinquish jurisdiction does 
nothing to alter plaintiffs' status as the prevailing party.

There are no special circumstances in the record justifying 

the denial of attorney's fees and costs to the Legal Defense Fund 
for its substantial role in securing the relief obtained by 
plaintiffs in this action. Accordingly, the district court 
erred in denying the Legal Defense Fund's application for the 

sum of $5,806.03.

5



ARGUMENT

THE DISTRICT COURT ERRED 
IN DENYING ATTORNEY'S FEES 
AND COSTS TO THE NAACP 
LEGAL DEFENSE AND EDUCATIONAL 
FUND, INC., FOR ITS REPRESEN­
TATION OF THE PREVAILING PARTY 
IN THIS ACTION

It is by now the settled law of this Circuit that a pre­
vailing party should ordinarily recover attorney's fees under 

the Civil Rights Attorney's Fees Awards Act of 1976 (42 U.S.C. 
§1988) unless special circumstances would render such an award 
unjust. See Brown v. Culpepper, 559 F.2d 274, 277-78 (5th Cir. 

1977); Gore v. Turner, 563 F.2d 159, 163 (5th Cir. 1977); Morrow 

v. Dillard, 580 F.2d 1284, 1300 (5th Cir. 1978); Bunn v. Central 

Realty of Louisiana, 592 F.2d 891 (5th Cir. 1979); Crowe v. Lucas, 
595 F.2d 985, 993 (5th Cir. 1979); Harkless v. Sweeny Independent 
School District. 608 F.2d 594 (5th Cir. 1979). Plaintiffs are 

clearly the prevailing party in this action, and the district 
court has found no special circumstances which would render un­

just the granting of attorney's fees to the Legal Defense Fund 

for its role in the representation of plaintiffs. Accordingly, 
the district court's order denying fees to the Legal Defense 
Fund must be reversed.

A.

Plaintiffs' status as the prevailing party is obvious from 

a reading of the prior opinions in this case. Taylor v. Sterrett. 
344 F.Supp. 411 (N.D. Tex. 1972), aff'd in part and vacated in

6



part, 499 F.2d 367 (5th Cir. 1974), cert, denied, 420 U.S.

983 (1975); Taylor v. Sterrett, 532 F.2d 462 (5th Cir. 1976).

Defendants' claim that this Court's most recent Taylor de- 
cision (600 F.2d 1135) designates them as the prevailing 
party in the post-Act period, advanced in their brief on appeal 
from the award of attorney's fees to Mr. Jordan, is simply con­
trary to the law of this Circuit. Parties are entitled to fees 

if they have vindicated rights through the litigation, even if 

no formal relief was obtained. Brown v. Culpepper, supra, 559 
F.2d at 277 (5th Cir. 1977) ; Criterion Club of Albany v. Board 

of Commissioners, 594 F.2d 118, 120 (5th Cir. 1979). In this 
case enforcement of the formal relief awarded in the early 1970's 
extended well beyond the October 1976 amendment of 42 U.S.C.
§1988, and was of substantial benefit to plaintiffs. For example, 

the bond issue to finance construction of a new jail, cited by 

this Court as the principal remedy to the overcrowding problem 
(600 F.2d at 1141), passed in November of 1977. This Court's 

decision of August 16, 1979, far from designating defendants 

as the prevailing party in the post-Act period, merely recog­

nizes that
... the district court's 
role in the process of 
improving the jail is now 
complete. The objects 
sought to be accomplished 
in the original suit have 
been accomplished. That 
which was sought to be 
remedied has now been re­
medied .

600 F .2d at 1141.

7



In any event, plaintiffs' attorneys are entitled to fees 
for relief obtained in the pre-Act period so long as the case 
was properly pending on October 19, 1976, the date the Act took 

effect. Hutto v. Finney, 437 U.S. 678, 694 n. 23 (1978); Rainey 
v. Jackson State College, 551 F.2d 672, 675 & n. 4 (5th Cir.

1977). It was not until April 25, 1977, six months after passage 
of the Act, that defendants requested the district court to re­

linquish jurisdiction (600 F.2d at 1139). Accordingly, there 
can be no dispute about plaintiffs' right to attorney's fees for 
work performed prior to that date. As Mr. Bass' affidavit

clearly reflects, he did no work on this case subsequent to
1/

April of 1977. R. 1916.
B.

Since plaintiffs are the prevailing party, the only question 
remaining is whether there are any special circumstances rendering 

an award of fees to the Legal Defense Fund unjust. The district 

court found no such circumstances, and in fact there are none.
The Legal Defense Fund's status as a privately funded civil 
rights organization, relied upon by defendants below, is ob-

3/ The pendency of plaintiffs' 1974 motion for attorney's fees 
at the time of passage of the Act also entitles them to fees for 
the vindication of their rights in the pre-Act period. Because 
Congress intended the Act to be remedial in nature, it is fully 
retroactive to cases pending on the date it took effect even if 
all enforcement proceedings had terminated by that date and the 
only issue pending was the award of attorney's fees. Rainey v. 
Jackson State College, supra, 551 F.2d at 675-76 (5th Cir. 1977); 
see also Corpus v. Estelle, 605 F.2d 175, 177 (5th Cir. 1979),
cert. denied. ___ U.S. ___, 48 U.S.L.W. 3569 (March 3, 1980),
and cases cited therein.

8



viously irrelevant and has been so in this Circuit for many 

years. Thompson v. Madison County Board of Education. 496 F.2d 
682, 689 (5th Cir. 1974); Fairley v. Patterson. 493 F.2d 598,
606 (5th Cir. 1974); Miller v. Amusement Enterprises. Inc.. 426 
F.2d 534, 538-39 (5th Cir. 1970). Furthermore, Congress expressly 

intended the 1976 Act to apply to such organizations. See House 
Report No. 94-1558, 94th Cong. 2d Sess. (Sept. 15, 1976) at 8 

n. 16. in recent years this Court has upheld the granting of 
attorney's fees to the Legal Defense Fund in Harkless v. Sweeny

Independent School District, supra. and Corpus v. Estelle. 605
F.2d 175 (5th Cir. 1979), cert. denied, ___ U.S. ___ , 48 U.S.L.W.
3569 (March 3, 1870); and it has made such awards itself in 
Brown v . Culpepper. supra, and Davis v . Board of School 
Commissioners of Mobile County. 526 F.2d 865, 869 (5th Cir.
1976) .

The fact that the Legal Defense Fund's role was primarily 
at the appellate level is also of no consequence, since this 

Court has repeatedly held that the prevailing party is entitled 

to fees for appeals. Morrow v. Dillard, supra. 580 F.2d at 

1300 (5th Cir. 1978); Miller v. Carson. 563 F.2d 741, 756 (5th 

Cir. 1977); Gore v. Turner. supra, 563 F.2d at 163 (5th Cir.
1977) ; Gates v. Collier, 559 F.2d 241 (5th Cir. 1977); Hodge 

v. Seiler, 558 F.2d 284 (5th Cir. 1977). See also Harkless 

v. Sweeny Independent School District, supra, 608 F.2d at 596 

(5th Cir. 1979); Davis v. Board of School Commissioners of 

Mobile County, supra, 526 F.2d at 869 (5th Cir. 1976). And

9



the fact that other attorneys were involved in the represen­
tation of plaintiffs is similarly uncontrolling, for "where 

more than one attorney represents the prevailing party, the 
contribution of all attorneys must be taken into consideration 

and the fees awarded should reflect the efforts of all ..." 
Reynolds v. Coomey, 567 F.2d 1166, 1167 (1st Cir. 1978). A 
district court may not "eliminate wholesale" the services of 
civil rights specialists brought into the case by local counsel 

to provide expertise at the appellate levels. Northcross v.

Board of Education of Memphis City Schools, 611 F.2d 624, 637
1/

(6th Cir. 1979) .
CONCLUSION

This Court should reverse the district court's order of 

October 23, 1979, and should award the Legal Defense Fund the

4/ Mr. Jordan noted in argument before the district court 
that Mr. Bass was asked to play an active role on the first 
appeal because "Mr. Bass had a much greater amount of appellate 
experience that Mr. Byrd and me." Record at Volume XVI, p. 18. 
Again, in opposing defendants' certiorari petitition, "Mr. Bass 
had more experience before the United States Supreme Court and 
we felt like the issues that were at hand he would be more ap­
propriate to respond to it and probably he responded to it in 
a much briefer amount of time than Mr. Byrd or I would have if 
we had done this." Ibid. As the Court noted in Northcross v. 
Board of Education of Memphis City Schools, supra, 611 F.2d 
at 637 (6th Cir. 1979), it is especially inappropriate to deny 
fees to civil rights specialists where their broad experience 
"undoubtedly meant that their time was far more productive in 
this area than would be that of a local attorney with less 
expert ise."

10



the sum of $5,806.03 denied by the district court. See

Brown v. Culpepper, supra, 559 F.2d at 278 (5th Cir. 1977).
5/

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 - 
CROS S -APPELLANTS

5/ At the conclusion of this appeal, the Legal Defense Fund 
will submit to this Court an accounting of the additional 
attorney's fees and costs incurred on this appeal. Should the 
Court remand to the district court for the setting of fees, it 
is respectfully requested that the district court be instructed 
to include fees for the prosecution of this appeal. See Criterion 
Club of Albany v. Board of Commissioners, supra, 594 F.2d at 121 
(5th Cir. 1979); Corpus v. Estelle, supra. 605 F.2d at 177, 180- 
81 (5th Cir. 1979) ; Harkless v. Sweeny Independent School District. 
supra. 608 F.2d at 596 (5th Cir. 1979).

11



CERTIFICATE OF SERVICE

I, JOEL BERGER, hereby certify that on March 27, 1980,

I served a copy of the within 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, 2415 LTV Tower, 
1525 Elm Street, Dallas, Texas 75201.



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