United Steel Workers of America v. Webber Brief for Respondents

    UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

No. 80-1868

ALICIA MORALES, et al.,
Plaintiffs-Appellees, 

v.
JAMES TURMAN, et al.,

Defendants-Appellants.

On Appeal for the United States District Court 
for the Eastern District of Texas

BRIEF FOR APPELLEES

William Bennett Turner 
Donna Brorby 
354 Pine Street 
San Francisco, CA 94104
Special Counsel for 
Plaintiffs-Appellees

Peter B. Sandmann 
354 Pine Street 
San Francisco, CA 94104
Peter Bull 
Pauline H. Tesler 
National Center for Youth Law 
1663 Mission Street, 5th Floor 
San Francisco, CA 94103
Attorneys for

Plaintiffs-Appellees



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

No. 80-1868

ALICIA MORALES, et al.,
Plaintiffs-Appellees, 

v.
JAMES TURMAN, et al.,

Defendants-Appellants.

On Appeal for the United States District Court 
for the Eastern District of Texas

CERTIFICATE OF COUNSEL PURSUANT TO RULE 13.6.1

The undersigned, counsel of record for plaintiffs- 
appellees, certifies that the following listed parties have 
an interest in the outcome of this case. These representations 
are made in order that Judges of this Court may evaluate possible 
disqualification or recusal: Alicia Morales, et al., are
the plaintiffs; because this appeal involves the award of 
counsel fees, the National Center for Youth Law, Peter B.
Sandmann and William Bennett Turner have an interest in the 
outcome.

William Bennett Turner 
Attorney for Plaintiffs-Appellees

1



STATEMENT REGARDING ORAL ARGUMENT
We believe that this appeal is controlled by decisions 

of this Court and the Supreme Court. The appeal should be 
dismissed or the decision below summarily affirmed. Oral 
argument is unnecessary.

11



TABLE OF CONTENTS

CERTIFICATE OF COUNSEL PURSUANT TO RULE 13.6.1 i
STATEMENT REGARDING ORAL ARGUMENT ii
TABLE OF CONTENTS iii
TABLE OF AUTHORITIES iv
QUESTIONS PRESENTED 1
STATEMENT OF THE CASE 2
STATEMENT OF FACTS 4
SUMMARY OF ARGUMENT 7
ARGUMENT 9

I. THE APPEAL MUST BE DISMISSED 9
II. THE ACT IS NOT UNCONSTITUTIONAL AS APPLIED

TO AUTHORIZE AN AWARD FOR PRE-ACT SERVICES 12
A. Compensation for Pre-Act Services 12
B. Award Not "Manifestly Unjust" 19

III. THE DISTRICT COURT DID NOT ABUSE ITS
DISCRETION IN MAKING THE AWARD HERE 26
A. It Was Not An Abuse Of Discretion To 

Compensate Plaintiffs' Attorneys For
All Time Reasonably Spent On This Case 26

B. The District Court Did Not Abuse Its 
Discretion By Enhancing The Award To
Account For The Contingent Nature Of Any Fee 31

C. The Evidence Was Sufficient To
Support The District Court's Award 33

CONCLUSION 36

Page

iii



TABLE OF AUTHORITIES

Alyeska Pipeline Service Co. v. Wilderness Society, 
~42Tir."S'." 240 (19/5)-------  -----------------
Aware Women Clinic, Inc. v. City of Cocoa Beach,

629 F.2d 1146 (5th Cir. 1980) “
Bills v. Hodges, 628 F.2d 844 (4th Cir. 1980)
Bond v. Stanton, 555 F.2d 172 (7th Cir. 1977),

cert. denied ~438 U.S. 916 (1978)
Bradley v. Richmond School Board, 416 U.S. 696 
— 7X974) ---------------------
Brown v. Bathke, 588 F.2d 634 (8th Cir. 1978)
Carter v. Noble, 526 F.2d 677 (5th Cir. 1976)
Clark v. American Marine Corp., 437 F.2d 949 

T5th Cir. 19/I TT'aft'' g 320 F.Supp. 709 
(E.D. La. 1970)

Cooper v. Allen, 467 F.2d 836 (5th Cir. 1972)
Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978)
Cornist v. Richland Parish School Board, 495 F.2d 

189 (5th Cir"7.19 74)
Corpus v. Estelle, 605 F.2d 175 (5th Cir. 1979), 

cert. denied 445 U.S. 919 (1980)
Crain v. City of Mountain Home, 611 F.2d 726 

THTh Cir. 19/9)
Crowe v. Lucas, 595 F.2d 985 (5th Cir. 1979)
Cruz v. Beto, 603 F.2d 1178 (5th Cir. 1979)
Dean v. Gladney, 451 F.Supp. 1313 (S.D. Tex. 1978)
Dennis v. Chang, 611 F.2d 1302 (9th Cir. 1980)
Dillon v. AFBIC Development Corp., 597 F.2d 556 

TTtH Cir7" 19/9)----  --------
Doe v. Marshall, 622 F.2d 118 (5th Cir. 1980)

Cases Page
19,21

23

24
13

11,15,16,
18,21
27
21,36
24

20

9,12,31
20

12,13,14,16
17,23,25,34,36
27

12

12,34
32
24
12

30

IV



Page
Donaldson v. O'Connor, 454 F.Supp. 311 27
— (Tmrrria. vr,tei—
Ex parte Virginia, 100 U.S. 339 (1880) 16
Fairley v. Patterson, 493 F.2d 598 20,24

(5th Cir. 19/4)
Fairmont Creamery Co. v. Minnesota, 275 U.S. 70 18
— q -9'27-) ------------- -------- --------------

Firestone Tire & Rubber Co. v. Risjord, 9,10,12,31
U.S. , 49 U.S.L.W. 4089 (Jan. 13, 1981)

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) 17,18
Fox v. Parker, 626 F.2d 351 (4th Cir. 1980) 13
Fullilove v. Klutznick, 100 S.Ct. 2758 (1980) 16
Gary W. v. State of Louisiana, 429 F.Supp. 711 21-22
— TtTDT La. "TV77")------------
Gates v. Collier, 559 F.2d 241 (5th Cir. 1977) 13,19
Gore v. Turner, 563 F.2d 159 (5th Cir. 1977) 13
Guajardo v. Estelle, 580 F.2d 748 (5th Cir. 1978) 13
Hall v. Cole, 412 U.S. 1 (1973) 21
Harkless v. Sweeny Independent School District, 12,34
' 608 F. 2d 574'T5t'E "CTr l^lV)----------------
Hodge v. Seiler, 558 F.2d 284 (5th Cir. 1977) 13
Holley v. Lavine, 605 F.2d 638 (2d Cir. 1979) 13
Horton v. Lawrence County Bd. of Ed., 449 F.2d 21
— TTT~( 5th 'Cir'."T9 717 -----------
Hughes v. Repko, 578 F.2d 483 (3d Cir. 1978) 28
Hutto v. Finney, 437 U.S. 678 (1978) 13,14,15
----- ------ 17,18,23
In re Corrugated Container Antitrust Litigation, 9,12
"614 F . 2d 958 (5th "CIFTTWOl-----------------

V



Iranian Students Association v. Edwards, 30
604 FTZd 332 (5tK 'Cir. 19/9)

Jinks v. Mays, 464 F.2d 1223 (5th Cir. 1972) 21
Johnson v. Georgia Highway Express, 488 F.2d 28,31,33

/14 (5th Cir. 19/4)
Jones v. Diamond, F.2d , No. 78-1289 12,13,26

CTth Cir. Jan. ZTT1981) TsTip op., p. 37) 27,29,32
(en banc)

Jones v. Diamond, 594 F.2d 997 (5th Cir. 1979) 27
Katzenbach v. Morgan, 384 U.S. 641 (1966) 16
Keith v. Volpe, 86 F.R.D. 565 (C.D. Cal. 1980) 32,35
King v. Greenblatt, 560 F.2d 1024 (1st Cir. 1977) 21
Knighton v. Watkins, 616 F.2d 795 (5th Cir. 1980) 23,33,36
Leeds v. Watson, 630 F.2d 674 (9th Cir. 1980) 24
Lee v. Southern Home Sites Corp., 444 F.2d 143 20,24

T5th Cir. 1971)---------------
Maher v. Gagne, 100 S.Ct. 2570 (1980) 13
McNamara v. Moody, 606 F.2d 621 (5th Cir. 1979) 12
Mid-Hudson Legal Services, Inc. v. G & U, Inc., 13,19

5/8 F .2d '34 (2d Cir.' 19/8)
Miller v. Amusement Enterprises, Inc., 426 24

FTZd 534~T5'th Cir. 19/0)
Miller v. Carson, 628 F.2d 346 (5th Cir. 1980) 27,30
Miller v. Carson, 563 F.2d 741 (5th Cir. 1977) 13,36
Miller v. Carson, 401 F.Supp. 835 (M.D. Fla. 21

1975), ail'd 563 F.2d 741 (5th Cir. 1977)
Miller v. Mackey International, Inc., 515 F.2d 32

Z5T”( 5th"Cir. 1 9 / 5 ) -------------
Molina v. Richardson, 578 F.2d 846 (9th Cir. 27

T9T8") , cert, denied 439 U.S. 1048 (1978)

Page

vi



Page
Morales v. Turman, 562 F .2d 993 (5th Cir. 1977) 3,29
Morales v. Turman, 535 F.2d 864 (5th Cir. 1976), 3

rev'd 43 CUTS'."""3 2 2 (1977)
Morales v. Turman, 383 F.Supp. 53 (E.D. 3

Tex. 19 7 41
Morales v. Turman, 364 F.Supp. 166 (E.D. 2-3

Tex 7" '19731
Morales v. Turman, 326 F.Supp. 677 (E.D. 2

Tex. 19711
Morrow v. Dillard, 580 F.2d 1284 (5th Cir. 1978) 13
Nadeau v. Helgemoe, 581 F.2d 275 (1st Cir. 1978) 27
Newman v. Piggie Park Enterprises, Inc., 19

3 W  u . S . 400 (1968)
North American Acceptance Corp. v. Arnall, 12

Golden & Gregory, 593 F.2d 642 (5th Cir. 1979)
Northcross v. Board of Education, 611 F.2d 624 27,32,34

(6th Cir. 19791
Northcross v. Board of Education, 412 U.S. 427 19
— TT97T1—  ------------------
Panior v. Iberville Parish School Board, 30,36

543“F. 2d“O T 7 "75th 'Cir."T976")--------
Parker v. Califano, 443 F.Supp. 789 (D.D.C. 1978) 35
Pearson v. Western Electric, 542 F.2d 1150 27
— CTUtK Cir! 19731---------
Peeler v. Longview Independent School District, 28
'""4'8'5'"F.Supp. 117 (E.D. Tex. 19/9)------------
Perez v. Rodriguez Bou, 575 F.2d 21 13

[Tst Cir. 19/8)
Rainey v. Jackson State College, 591 F.2d 1002 12

CTth Cir."'T9"77)
Rainey v. Jackson State College, 551 F.2d 672 27
— TTtK Cir. 197/1--------------

vii



Page
Reproductive Health Services v. Freeman, 27
— BTTTTTTTTB^nTtPrcrFTTMO) -------
Robinson v. Kimbrough, 620 F.2d 468 12,30
— (”b'th "Cir. T M 1 ----
Ross v. Horn, 598 F.2d 1312 (3d Cir. 1979), 28

cert. denied 100 S.Ct. 3048 (1980)
Ruiz v. Estelle, 609 F.2d 118 (5th Cir. 1980) 7,9,10
Schneider v. City of Albany, 628 F.2d 915 32
— ('5th'"Cir. 1 M ] ----------
Seigal v. Merrick, 619 F.2d 160 (2d Cir. 1980) 27
Sims v. Amos, 340 F.Supp. 691 (M.D. Ala.), 21
aTf ' d 4T7TU.S. 942 (1972)

Smith v. Fletcher, 559 F.2d 1014 (5th Cir. 1977) 28,29
Souza v. Southworth, 564 F.2d 609 (1st Cir. 1977) 34
Supreme Court of Virginia v. Consumers Union, 13
" I'OO S . Ct'TT96'/— ,(T98'0')—  ---------------
Sweeney v. Board of Trustees, 569 F.2d 169 27

(1st Cir.T^ vacated on other grounds 
439 U.S. 24 (19/8)------------------

Thompson v. Madison County Board of Education, 24
— 496—  r.'2d 6 8 2‘" C3’th‘ "Cir."”T9 /4)---------------
Thorpe v. Housing Authority, 393 U.S. 268 (1969) 18
Universal Amusement Co. v. Vance, 587 F.2d 159 13

(5th Cir. 19/8) (en banc)
Watkins v. Mobile Housing Board, 632 F.2d 565 24,30

(5th Cir. 1980)
Wharton v. Knefel, 562 F.2d 550 (8th Cir. 1977) 13
Williams v. Alioto, 625 F.2d 845 (9th Cir. 1980) 13
Williams v. General Foods Corp., 492 F.2d 399 28
— (7th Cir. rsrrzn--------------
Wisenberger v. Huecker, 593 F.2d 49 13
— (6th Cir. 19791-----

viii



Page
Wolf v. Frank, 555 F.2d 1213 (5th Cir. 1977)

Constitutional Provisions, Statutes and Rules 
Fourteenth Amendment, Section 5 
28 U.S.C. Section 1291 
28 U.S.C. Section 1292(b)
1976 Civil Rights Attorneys Fees Awards Act 
42 U.S.C. Section 1988

Vernon's Texas Civil Statutes, Article 5069-1.05 
Vernon's Texas Civil Statutes, Article 6252-26 
Federal Rules of Civil Procedure 52(a)

Other
122 Cong. Rec. 12155, 12160 (Daily Ed.
Oct. 1, 1976)

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

Senate Report No. 94-1011, 94th Cong., 2d Sess. 
(June 29, 1976)

Berger, Court Awarded Attorneys Fees: What is
"Reasonable"?, 126 U. Pa. L. Rev." 281 "CT977")

Bureau of Economic Statistics, Inc.,
The Handbook of Basic Economic Statistics 
(December, 1980)

Turner, Establishing the Rule of Law in Prisons, 
23 Stan. L. Rev. 4 73 "(T9/l")

32,34

passim
I, 9 
9
passim

35
24
33

15

II, 14,19, 
21,24
11,18,26,
19,21
32

35

20

IX



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

No. 80-1868

ALICIA MORALES, et al.,
Plaintiffs-Appellees, 

v.
JAMES TURMAN, et al.,

Defendants-Appellants.

On Appeal for the United States District Court 
for the Eastern District of Texas

BRIEF FOR APPELLEES

QUESTIONS PRESENTED
1. Whether the interim fee award here is appealable 

as of right under 28 U.S.C. Section 1291.
2. Whether the Civil Rights Attorneys' Fees Awards 

Act of 1976, as applied to authorize fee awards for services 
rendered prior to its enactment, is unconstitutional because 
such application is beyond the power of Congress under Section 
5 of the Fourteenth Amendment.

-1-



3. Whether the district court abused its discretion 
by awarding fees for all time plaintiffs' counsel reasonably 
devoted to plaintiffs' representation.

4. Whether the district court abused its discretion 
by enhancing the award to account for the contingent nature
of any fee.

5. Whether the evidence was insufficient to support 
the district court's order.

STATEMENT OF THE CASE
This is a class action on behalf of all children 

incarcerated in Texas Youth Council ("TYC") institutions.
The issues on the merits include the procedures by which the 
juveniles become TYC wards and the conditions of their con­
finement .

Defendants' appeal is from an order granting counsel 
fees and costs pendente lite. R.Exc. 35-52.— The action 
was filed in 1971, and the six-week trial was held in 1973. 
Plaintiffs obtained substantial relief that was never appealed 
from. Thus, a preliminary injunction safeguarded plaintiffs' 
right to counsel and their access to the courts. Morales 
v. Turman, 326 F.Supp. 677 (E.D. Tex. 1971). The district 
court's Emergency Interim Relief Order, issued immediately 
following the trial, protected TYC children from the most 
serious of the many abuses revealed at trial. Morales v.

— Citations to "R.Exc. ___" refer to pages of the Record
Excerpts filed by appellants with their brief.

-2-



Turman, 364 F.Supp. 166 (E.D. Tex. 1973). An agreed upon 
declaratory judgment, reforming the juvenile justice system 
in over 250 Texas jurisdictions, was incorporated in the court's 
comprehensive memorandum decision. Morales v. Turman, 383 
F.Supp. 53, 68 (E.D. Tex. 1974).

Defendants' appeal on the merits was before this 
Court twice. See Morales v. Turman, 535 F.2d 864 (5th Cir.
1976), rev'd 430 U.S. 322 (1977); Morales v. Turman, 562 F.2d 
993 (5th Cir. 1977). In the second decision, this Court remanded 
the case to the district court to take further evidence on 
whether circumstances had changed sufficiently since the trial 
so that final injunctive relief should be denied or limited.
As a result, further discovery and trial are still pending 
below.

On June 12, 1980, the district court granted plaintiffs' 
motion for interim counsel fees and costs. R.Exc. 35-52.
A formal evidentiary hearing had been held in 1979 and the 
parties had thoroughly briefed all the issues. The court 
awarded the Youth Law Center $182,310 as fees and $16,108 
as expenses, payable immediately, and $177,500 as fees payable 
"at the time of final adjudication of this action." R.Exc.
49. The court also awarded $8,677.50 as fees and $182.55 
as expenses of special counsel for the fee litigation.

Defendants have now filed an interlocutory appeal 
of the interim counsel fee award. On December 5, 1980, a 
panel of this Court denied defendants' motion for a stay pending

-3-



appeal. The Court also ordered that plaintiffs' Motion to
Dismiss the appeal be "carried with the case." Since the 
stay was denied, defendants have paid $50,000 of the award 
and their attorney has represented that the balance will be 
paid by March 21, 1981.

STATEMENT OF FACTS
The motion for counsel fees was supported by sworn

declarations of counsel setting out, in meticulous detail,
all of the services rendered for which fees were sought.

2/ROA 2-48.— Plaintiffs' counsel deliberately underestimated 
the time devoted to this action. ROA 23; Tr. 82-83.-/ In 
addition, the court below held an evidentiary hearing at which 
documentary exhibits were introduced, plaintiffs' counsel 
testified and were cross-examined and defendants called an 
expert witness. The court also received declarations of two 
expert witnesses for plaintiffs, supporting the reasonableness 
of the time spent and rates sought. ROA 184, 235, 238.

Defendants' Statements of the Case and of Facts 
are basically correct. It is not true, however, that all 
of plaintiffs' attorneys were salaried, as defendants' brief 
indicates (p. 4). One of the attorneys was in private practice

2 /— Citations to "ROA ___" refer to pages of the Record on
Appeal.
3 /— Citations to "Tr." refer to the pages of the court reporter's 
transcript of the hearing held on May 18, 1979, filed as part
of the Record on Appeal.

-4-



at the time he worked on the case, several of the attorneys 
have been in private practice at various times during the 
litigation, and special counsel for plaintiffs has, at all 
relevant times, been in private practice. ROA 20-23, 46.

The district court's Memorandum Opinion and Order 
(R.Exc. 35-52) carefully sets forth the facts leading to the 
award from which defendants have appealed. On the issue of 
the extent to which plaintiffs have "prevailed," it is important 
that when the Supreme Court reversed and remanded the case 
to this Court, defendants urged that reforms implemented since 
trial made broad injunctive relief inappropriate. In .their 
Supplemental Brief here, defendants stated that they did not 
challenge five elements of the district court's injunction 
—  those dealing with physical abuse, use of tear gas, use 
of solitary confinement, the silence requirement and the matter 
of repetitive tasks (Supp. Brief, pp. 6-7, filed June 17,
1977). However, defendants claimed that since trial the TYC 
had undergone "vast changes . . . structural, institutional,
administrative, and personnel changes." Id. at 16. The Appendix 
to their Supplemental Brief contained a "brief overview" of 
such changes, said to evidence "a commitment on the part of 
Texas to delinquent youth." The Appendix stated that the 
following changes occurred since trial:

1. The Youth Council had been "completely 
reorganized" (A-l).

2. A Bill of Rights for all TYC youth had been 
adopted (A-l).

-5-



3. Certain training schools had been closed, and 
one had been transferred to the Department of Corrections
(A-2).

4. $932,318 was allocated to community-based halfway 
houses for 1977. Appropriations exceeding $1,000,000 were 
made for each of fiscal years 1978 and 1979 (A-4).

5. A diversion program providing "home town care" 
rather than TYC confinement cost $673,089 in 1976, with over 
$2,000,000 allocated for 1977 (A-4-5).

6. A "living, learning and working skills" program 
was claimed as a "major innovation" in a treatment program
in which TYC personnel had been trained (A-5-6).

7. The TYC claimed "massive changes in its personnel," 
including an "aggressive affirmative action program" (A-6).

8. Defendants asserted that they had "obtained 
millions of dollars in federal and private foundation grant 
funds for innovation [sic] institutional and community-based 
programs" (A-7).

9. There had been renovation of most facilities
(A-7).

10. There were "improved staff to student ratios 
in all aspects of the treatment program" (A-7).

Thus, plaintiffs in fact obtained sweeping relief 
on all their claims, including the "right to treatment" claim.

-6-



SUMMARY OF ARGUMENT
1. The interim counsel fee order here is not appealable, 

as it is effectively reviewable on appeal from the final judg­
ment. Ruiz v. Estelle, 609 F.2d 118 (5th Cir. 1980), controls 
this issue. There is no reason in this case to carve out
an exception to the rule against piecemeal appeals.

2. It is not unconstitutional to compensate counsel 
for services rendered prior to the effective date of the 1976 
Civil Rights Attorneys Fees Awards Act. At least sixteen 
decisions of this Court have applied the Act to uphold fee 
awards for services rendered prior to its enactment. Supreme 
Court and other decisions have come to the same result. No 
case has limited recovery to services performed after the
Act. Settled principles for measuring the authority of Congress 
under Section 5 of the Fourteenth Amendment make it clear 
that it was well within Congressional power to authorize fees 
for services rendered before the Act.

Nor is it "manifestly unjust" to award fees 
against defendants here. This liability was not "new and 
unanticipated." Defendants have long been on notice of potential 
fee liability; and there is no suggestion that they would 
have acted differently had statutory liability been more notorious 
at an earlier point in the litigation. Moreover, defendants 
vigorously resisted, and continue to resist, relief on the 
merits well after the Act became law. Finally, defendants 
have made no showing that the award will significantly interfere

-7-



with their budget. The award is tiny in comparison to the 
benefits this suit has brought to the Texas Youth Council.

3. The district court did not abuse its discretion 
in making the award here. It was entirely proper to compensate 
plaintiffs' attorneys for all time reasonably spent on the 
case. The court properly looked to the extent to which plaintiffs 
prevailed, rather than attempting to examine each legal "issue" 
and apportion the time for each issue.

The district court's order enhancing the award 
to account for the contingency nature of the fee is not appeal- 
able. The enhancement does not take effect until "the time 
of final adjudication of the action," so the order is plainly 
reviewable upon appeal from a final judgment. In any event, 
it was proper to enhance the award here.

Finally, the evidence was sufficient to support 
the district court's award. The court's findings of fact 
are not clearly erroneous. The court found that the time 
claimed was understated. The rates of compensation were well 
within the district court's discretion.

-8-



ARGUMENT
I. THE APPEAL MUST BE DISMISSED

As set forth in our Motion to Dismiss the appeal, 
which the Court has ordered carried with the case, the counsel 
fee order here is not appealable. Under 28 U.S.C. Section 
1291, only "final" decisions of the district courts are appeal- 
able as of right.—^

Only a "small class" of decisions are reviewable 
before final judgment, and they "must conclusively determine 
the disputed question, resolve an important issue completely 
separate from the merits of the action, and be effectively 
unreviewable on appeal from a final judgment." Firestone 
Tire & Rubber Co. v. Risjord, U.S. , 49 U.S.L.W. 4089,
4091 (Jan. 13, 1981); Coopers & Lybrand v. Livesay, 437 U.S. 
463, 468-69 (1978); In re Corrugated Container Antitrust 
Litigation, 614 F.2d 958, 960-61 (5th Cir. 1980), and cases 
cited therein.

This appeal is controlled by the Court's decision 
in Ruiz v. Estelle, 609 F.2d 118 (5th Cir. 1980), holding 
that an interim fee award was not an appealable order.—^

4/— Defendants here sought certification pursuant to Section 
1292(b), but this was denied by the district court. The court 
below explicitly found that "an interlocutory appeal would 
not materially advance the termination of the litigation," 
and that, "to the contrary, an interlocutory appeal would 
delay termination of this already protracted litigation."
Order of July 29, 1980, R.Exc. 53.
—  ̂ The Ruiz fee award was made by the same judge in a very 
similar case involving the same counsel as here.

-9-



Here, as in Ruiz, "all of the issues affecting the propriety
of the award may appropriately be reviewed after the final 
judgment is rendered." 609 F .2d at 119. Here, as in Ruiz, 
the defendants have not "alleged and proved that the mere 
payment of the fees would make them unrecoverable." Id.—^

The Court in Ruiz noted that counsel for the plaintiffs 
there had stated his willingness to provide security for the 
refund of any fees "should the court later decide that all 
or part of the amount paid was not due." Id. In fact, on 
remand there the parties entered into a stipulation in which 
counsel for the plaintiffs and a civil rights organization 
pledged to refund the fees if it was later determined that 
they should not have been paid. In the present case a sub­
stantially identical stipulation was tendered by plaintiffs.—^
It protects defendants here even more fully than the defendants 
in Ruiz: at defendants' request plaintiffs agreed to pay
interest on any amount later found to have been erroneously 

8 /paid.— This Court's disposition of Ruiz thus controls here.

6 /— In Firestone Tire & Rubber Co. v. Risjord, supra, the 
appellants' failure to demonstrate that the order was "effec­
tively unreviewable" after final judgment was decisively fatal 
to their interlocutory appeal.
—  ̂ The stipulations in Ruiz and the present case are attached 
as Exhibits C and D to our Motion to Dismiss Appeal, of which 
the Court may of course take judicial notice.
8 /— Given that plaintiffs here indisputably prevailed on several 
substantial issues on the merits (see pp. 2-3, 5-6, supra), the 
chances of there being any refund of the portion of the fees 
made payable immediately are exceedingly remote.

-10-



It must also be recognized that allowing interlocutory- 
appeals of interim fee awards would defeat the very purpose 
of such awards. The point of such awards, as recognized by 
the House and Senate reports on the 1976 amendment to 42 U.S.C. 
Section 1988, is to make it possible for counsel in civil 
rights cases, by obtaining funds on an interim basis, to carry 
protracted litigation through to conclusion. The Senate Report 
explicitly states that "in appropriate circumstances, counsel 
fees under [Section 1988] may be awarded pendente lite."
Senate Report No. 94-1011, 94th Cong., 2d Sess., p. 5 (June 
29, 1976). The Congress expressly contemplated fee awards 
before final judgment: the House Report states that "the
word 'prevailing' is not intended to require the entry of 
a final order before fees may be recovered." House Report 
No. 94-1558, 94th Cong., 2d Sess., p. 8 (September 15, 1976) 
(emphasis in original). The Report quotes with approval the 
Supreme Court's holding in Bradley v. Richmond School Board,
416 U.S. 696, 723 (1974), that "a district court must have 
discretion to award fees and costs incident to the final disposi­
tion of interim matters" (emphasis added). The House Report, 
in language directly applicable here, adds that "such awards 
pendente lite are particularly important in protracted litigation, 
where it is difficult to predict with any certainty the date 
upon which a final order will be entered." Id. Thus, inter­
locutory appeals would frustrate the Congressional purpose 
in authorizing fee awards pendente lite. The practical reality

-11-



is that, if interim awards are immediately appealable, they
are rendered useless. This is not a case for carving out
an exception to the rule against piecemeal appeals. See
Firestone Tire & Rubber Co. v. Risjord, supra; Coopers &
Lybrand v. Livesay, 437 U.S. 463 (1978); In re Corrugated
Container Antitrust Litigation, 614 F.2d 958, 960-61 (5th
Cir. 1980); North American Acceptance Corp. v. Arnall, Golden
& Gregory, 593 F.2d 642, 645 (5th Cir. 1979).
II. THE ACT IS NOT UNCONSTITUTIONAL AS APPLIED 

TO AUTHORIZE AN AWARD FOR PRE-ACT SERVICES
A . Compensation for Pre-Act Services

Defendants' principal argument is utterly frivolous.
The argument, as succinctly put in defendants' brief, is as
follows: "If construed retroactively to allow this award,
the Act is unconstitutional because it is not appropriate
legislation under Congress' Section 5 enforcement powers"
(Brief for Appellants, at pp. 5-6).

At least sixteen decisions of this Court have
applied the Act to uphold fee awards for services rendered

9 /prior to its enactment.—' Most recently, the en banc Court

9 /— Jones v. Diamond, __ F.2d _, No. 78-1289 (5th Cir. Jan.
29, 1981) (slip op., p~! 37) (en banc) ; Robinson v. Kimbrough,
620 F.2d 468 (5th Cir. 1980); Harkless v. Sweeny Independent 
School District, 608 F.2d 594 (5 th Cir. 19 /9) ; McNamara v.
Moody, 606 F.2d 621, 626 (5th Cir. 1979); Corpus v. Estelle,
6'05 E.2d 175 (5th Cir. 1979), cert, denied'445 "U.S. 9T9"Tr980) ; 
Cruz v. Beto, 603 F.2d 1178 (5th Cir~. 19 /9) ; Dillon v. AFBIC 
Development Corp., 597 F.2d 556, 564 (5th Cirl 19 /9) ; Crowe
v. Lucas, 595 F.2d 985, 993-94 (5th Cir. 1979); Rainev~--
Jackson State College, 591 F.2d 1002 (5th Cir. 1TTTT\
(Footnote 9 continued on p. 13.)

-12-



held that: "Although the Act was passed after this litigation
had commenced, its provisions embrace pending litigation and 
include compensation for services rendered in such suits prior 
to its adoption." Jones v. Diamond, F.2d , No. 78-
1289 (5th Cir. Jan. 29, 1981) (slip op., p. 37). Decisions 
in other circuits have unanimously come to the same result.—  ̂
Three plenary decisions of the Supreme Court have upheld fee 
awards for pre-Act services.—  ̂ No case has limited recovery 
to services performed after the Act.

Whether by inadvertence or otherwise, defendants 
have completely failed to mention most of the cases directly 
in point. Similarly, while they cite the decision in Corpus 
v. Estelle, 605 F.2d 175 (5th Cir. 1979), and state blandly 
that it should be "disapproved" (defendants' brief at p. 14),

9 cont./ Universal Amusement Co. v. Vance, 587 F.2d 159, 172 
(5th Cir. 1978) (en banc); Morrow v. Dillard, 580 F.2d 1284 
(5th Cir. 1978); Guajardo v7 Estelle, 580 F.2d 748 (5th Cir.
1978); Gore v. Turner, 5TT3 F . 2d 159, 163-64 (5th Cir. 1977 );
Miller vT Carson^ 563 F.2d 741, 754-56 (5th Cir. 1977); Gates 
vT Collier^ 559 F.2d 241 (5th Cir. 1977); Hodge v. Seiler7̂
558 F.2d 284, 286 (5th Cir. 1977). --- ------
—  ̂ See e.g. Fox v. Parker, 626 F.2d 351, 353-54 (4th Cir.
1980); Williams v. Alioto, 625 F.2d 845, 849 (9th Cir. 1980); 
Holley vl Lavine, 605 F.2d 638, 645-46 (2d Cir. 1979); Wisenberger 
v~. Huecker"J 593 F. 2d 49 (6th Cir. 1979 ); Mid-Hudson LegaT 
Services, Inc. v. G & U , Inc., 578 F.2d 35 (2d Cir. 19/8) ;
Perez v. Rodriguez Bou, 5/5 F.2d 21 (1st Cir. 1978); Wharton 
~  Knefel” 562 F.2d 550, 557 (8th Cir. 1977); Bond v. Stanton,
555 F.2d 172 (7th Cir. 1977), cert. denied 438 U.S. 916 (197'H’) .
—  ̂ Maher v. Gagne, 100 S.Ct. 2570 (1980); Supreme Court of 
Virginia v. Consumers Union, 100 S.Ct. 1967~ 1972 , nT 7 (T980); 
Hutto v. F inney", 43 7 U.S. 578 (1978).

-13-



they neglect to mention that their lawyers, the same Attorney
General's office as here, tendered this very issue to the
Supreme Court in Corpus, but the petition for certiorari was
denied. 445 U.S. 919 (1980).

Contrary to defendants' contention, the Supreme
Court squarely decided the issue in Hutto v. Finney, 437 U.S.
678 (1978), when it affirmed a counsel fee award under the

12 /Act for work done on appeal prior to the Act's passage.—
The Arkansas prison officials argued, as do defendants here,
that the Act should not be applied "retroactively" to compensate
services rendered prior to its enactment. But the Supreme
Court held that the legislative history and settled doctrine
"defeat this argument." 437 U.S. at 695, n. 23. The House
Report explicitly stated the Congressional intent that the
statute would govern cases pending on the date of enactment:

"In accordance with applicable decisions of 
the Supreme Court, the bill is intended to apply 
to all cases pending on the date of enactment 
. . ." House Report No. 94-1558, 94th Cong.,
2d Sess., p. 5, n. 6 (Sept. 15, 1976).

12 /—  Virtually all of the work in the Eighth Circuit in Hutto 
was done before October 19, 1976 —  all briefing was completed 
by September 17, 1976. The Court of Appeals awarded fees 
under the Act, explicitly holding that it applied to pending 
cases. Further, the petitioners' brief in Hutto specifically 
urged that because of the Eleventh Amendment the statute should 
not be applied "retroactively." Brief for Petitioners in 
No. 76-1660, pp. 9-11. And the State of Texas, represented 
by the same Attorney General's office as here, filed an amicus 
brief making the same arguments as on this appeal. See Brief 
of State of Texas as amicus curiae in No. 76-1660, at pp.
6-7. The arguments were of course rejected.

-14-



On the House floor it was twice emphasized that the statute 
would apply "retroactively" to pending cases. 122 Cong. Rec.
12155 (Daily Ed. Oct. 1, 1976) (Congressman Anderson); Id. 
at 12160 (Congressman Drinan).

Hutto also relied on Bradley v. Richmond School 
Board, 416 U.S. 696 (1974). There, the Court applied the 
school desegregation counsel fee statute retroactively to 
compensate services rendered prior to its enactment. As defendants 
here note, Bradley discussed three relevant factors: (1)
the nature of the parties, (2) the nature of the rights involved, 
and (3) the impact of the change in the law being applied.
As to the parties, the Court pointed out that the defendant 
was a "publicly funded government entity," and there was a 
great "disparity in the respective abilities of the parties 
adequately to present and protect their interests." 416 U.S. 
at 718. Here, of course, we have the relative impotence of 
incarcerated juveniles against the mighty resources of the 
State of Texas.

As to the rights involved, the Bradley decision 
noted that retroactive application of a counsel fee statute 
would not undercut any right that has "matured or become 
unconditional." I_d. at 720. The same is true here.

Finally, as to the impact of the change in law, 
the Court in Bradley found no indication that —  had the defendants 
been more conscious of fee liability —  they would have altered 
their conduct "so as to render this litigation unnecessary

-15-



Id. atand thereby preclude the incurring of such costs."
721. The same is true here. Defendants have not attempted
to demonstrate that they did (or refrained from doing) anything
in reliance on any imagined immunity from fee liability.
ROA 243 (no showing in court below); see p. 20-22, infra.

Defendants' entire Section 5 argument was
definitively put to rest by this Court in Corpus v. Estelle,
605 F.2d 175 (5th Cir. 1979), cert, denied 445 U.S. 919 (1980).
Defendants ask the Court to "disapprove" Corpus, but they
offer no plausible reason for doing so. Their argument simply
disregards the settled principles for measuring Section 5
powers. Just recently, the Supreme Court emphasized that
Section 5 is a broad grant of authority to the Congress to
deal with civil rights matters. Fullilove v. Klutznick, 100 S.Ct.
2758, 2774-75 (1980). Section 5 has always been read broadly.
In Ex parte Virginia, 100 U.S. 339 (1880), the Court said:

"Whatever legislation is appropriate, that is, 
adapted to carry out the objects the amendments 
have in view, whatever tends to enforce submission 
to the prohibitions they contain ! ! ! is brought
within the domain of Congressional power."
100 U.S. at 345-46 (emphasis added).

Katzenbach v. Morgan, 384 U.S. 641 (1966), relied upon by
defendants, gives them no support. There, the Court said:

"Section 5 is a positive grant of legislative 
power authorizing Congress to exercise its discre­
tion in determining whether and what legislation 
is needed to secure the guarantees of the 
Fourteenth Amendment * * * It was for Congress, 
as the branch that made this judgment, to assess 
and weigh the various conflicting considerations 
7 i ! it is not for us to review the Congressional 
resolution of these factors." 384 U.S. at 651,
653 (emphasis added).

-16-



To say that Section 1988 is not "appropriate
legislation" (defendants' brief, p. 14), is to ignore the
teachings of Hutto. In Hutto the Supreme Court approvingly
noted the district court's reasoning —  that a substantial
fee award "may incline the department to act in such a manner
that further protracted litigation about the prisons will
not be necessary." 437 U.S. at 691. Also, counsel fees in
equity cases like the present one are not "retroactive" in
the sense of damages or restitution. "Instead, the award
reimburses [the plaintiff] for a portion of the expenses he
incurred in seeking prospective relief." Id. at 695, n. 24
(emphasis added). In other words, a fee award in a case like
this one serves both to provide a disincentive to further
resistance to the rights of TYC wards and partially to reimburse
plaintiffs' counsel for the very substantial costs of obtaining
injunctive and declaratory relief, relief effective at present
and prospectively. Corpus v. Estelle, supra, 605 F.2d at
178, n. 4 (rationales for appropriateness of retroactive applica-

13/tion); see also Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)--

13/
In Fitzpatrick, the Court held that "Congress may, in 

determining what is 'appropriate legislation' for the purposes 
of enforcing the provisions of the Fourteenth Amendment," 
authorize private Title VII suits against states and state 
officials. 427 U.S. at 456. Surely, if Section 5 is sufficient 
authority for such suits —  overriding explicit Eleventh Amend­
ment immunity as the Court held in both Fitzpatrick and Hutto 
—  it is sufficient to make "appropriate" tee awards to parties 
who prevail in obtaining prospective relief in pending civil 
rights cases.

-17-



Given the broad authority of Congress to determine 
the means of enforcing the Fourteenth Amendment, defendants 
have presented no reason why the Court should depart from 
the "general practice" of fully applying the law in effect 
to all pending cases. Hutto v. Finney, supra, 437 U.S. at 
595, n. 23; see also Bradley v. Richmond School Board, supra,
416 U.S. at 711; Thorpe v. Housing Authority, 393 U.S. 268,
281-82 (1969).

Finally, counsel fees under the Act are awarded 
"as part of the costs." 42 U.S.C. Section 1988. The awards 
are "ancillary and incident to securing compliance" with Section 
1983. Senate Report No. 94-1011, supra, at p. 5. Cost awards 
are always "retroactive." Yet states have never enjoyed immunity 
from costs. See Hutto v. Finney, supra, 437 U.S. at 695;
Fairmont Creamery Co. v. Minnesota, 275 U.S. 70 (1927); Fitzpatrick 
v. Bitzer, supra, 427 U.S. at 460 (opinion of Stevens, J.).
Section 5 is no bar to retroactive fee awards.

-18-



B. Award Not "Manifestly Unjust"
Defendants' related argument is that the fee 

award for earlier services is "manifestly unjust." The standard 
espoused by Congress in enacting the 1976 Act is that the 
prevailing party "should ordinarily recover an attorney's 
fee unless special circumstances would render such an award 
unjust." Senate Report No. 94-1011, supra, at p. 4; House 
Report No. 94-1558, supra, at pp. 5-6. This is the standard 
established by Newman v. Piggie Park Enterprises, Inc., 390 
U.S. 400, 402 (1968), and Northcross v. Board of Education,
412 U.S. 427, 428 (1973). Defendants have the burden of proving 
any such "special circumstances." See, e.g., Mid-Hudson Legal 
Services v. G & U , Inc., 578 F.2d 34, 38 (2d Cir. 1978). 
Defendants here have failed to establish that an award of 
fees would be "manifestly unjust."

The congressional purpose in enacting the 1976 
Act was "to remedy anomolous gaps in our civil rights laws" 
created by Alyeska Pipeline Service Co. v. Wilderness Society,
421 U.S. 240 (1975). See Senate Report No. 94-1011, supra, 
at p. 3; Gates v. Collier, supra, 559 F.2d at 243. Congress 
intended to restore fees in civil rights cases in which Alyeska 
had made them "suddenly unavailable." Mid-Hudson Legal Services 
v. G & U , Inc., supra, 578 F.2d at 36, n. 2.

In short, Congress meant at least to restore 
the status quo ante the Alyeska decision. That status, in 
the Fifth Circuit as in many others, was that fees were available

-19-



under the "private attorney general" doctrine. 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). 
Under this doctrine, private parties were compensated for 
undertaking to enforce Congressional civil rights mandates. 
Assuring such compensation for cases still pending was an 
explicit purpose of the 1976 Act.

Defendants’ argument that the fee liability 
was "new and unanticipated" is not entitled to credence.
In the first place, they have long been on notice of potential 
liability under the "private attorney general" doctrine recog-

A / /
nized in the Fifth Circuit-- ' The only time they might have

14/—  Defendants assert that plaintiffs' special counsel, in 
1971, wrote that remuneration was not an incentive for this 
type of litigation, and quote from Turner, Establishing the 
Rule of Law in Prisons, 23 Stan. L. Rev. 473“ 518 (1971) . 
Defendants' Brief, pT 11, n. 4. Defendants' quotation is 
out of context. The sentences prior to the one quoted by 
defendants are as follows:

"Federal courts do have equitable jurisdiction to grant 
attorney's fees m  appropriate cases. [Citations omitted.] 
Where broad injunctive relief is obtained and redounds 
to the benefit of the members of a large class in a Rule 
23 class action, a respectable argument for an award of 
counsel fees may be made. [Citations omitted.] In prisoners' 
rights cases involving important constitutional issues, 
the rights of the class would not be vindicated except 
by the particular lawsuit. The prisoner's attorney thus 
acts as a 'private attorney general,' [citations omitted] 
and the court may be persuaded to reward the attorney 
for his efforts In the public interest." 23 Stan. CT 
Rev. at 518 (emphasis added).

(Footnote 14 continued on p. 21.)

-20-



been lulled into inattention was in the few months from the
Alyeska decision in 1975, overruling the doctrine, to October 
19, 1976, the effective date of the Act, when Congress expressly 
revalidated the doctrine. Senate Report No. 94-1011, supra, 
at p. 3; House Report No. 94-1558, supra, at p. 2. But defendants 
do not contend that a single position they took in this liti­
gation during those months would have been in any way different 
had fee liability been more clear. There is no suggestion 
that, had it been certain that fees would be recoverable, 
a different policy would have been adopted "so as to render 
this litigation unnecessary and thereby preclude the incurring 
of such costs." Bradley v. Richmond School Board, 416 U.S.
696, 721 (1974). Absent a showing that defendants relied 
to their detriment on the statutory gap —  that any action 
they took would have been different —  there is nothing "mani­
festly unjust" about awarding fees for services necessarily 
rendered. See King v. Greenblatt, 560 F.2d 1024, 1025, n.
2 (1st Cir. 1977); Gary W. v. State of Louisiana, 429 F.Supp.

------—- Besides private attorney general fee liability,
defendants were on notice that fees could be awarded for "ob­
durately obstinate" conduct. See Carter v. Noble, 526 F.2d 
677 ( 5th Cir. 1977); Jinks v. Mays" 464 F.2d 1223, 1228 (5th 
Cir. 1972); Horton v. Lawrence County Bd. of Ed., 449 F.2d 
793, 794 (5th Cir. 1971) ; Sims v. Amos, 340 F.Supp. 691, 694 
(M.D. Ala.), aff'd 409 U . S7 94(2 (19/2) ; see also Hall v. Cole, 
412 U.S. 1 (19/3) . In Miller v. Carson, 401 F.Supp. 835"] 
848-50, 853-57 (M.D. FlaT T975), aff'd '56 3 F.2d 741 (5th Cir. 
1977), jail officials ignored conditions found unconstitu­
tional, or refused to rectify them, or both. They did not 
obdurately deny their existence, as defendants here did.

-21-



711, 714 (E.D. La. 1977 ) .
Moreover, defendants conveniently overlook the 

fact that they vigorously resisted injunctive and declaratory 
relief on the merits well after the Act became law. For example, 
their Supplemental Brief in this Court was filed on June 17,
1977. And defendants have given no indication since remand 
of consent to appropriate relief on the merits. Surely, if 
the prospect of a fee award would have altered their behavior 
in any respect they would not still be denying liability.

Defendants' generalities about the impact of 
the award here on the State's budgeting process cannot be 
taken seriously. They say the award "wreaks havoc" on the 
State budget. But the award is puny in comparison to both 
the TYC budget and the significant benefits plaintiffs' suit 
has brought to the TYC system. For example, TYC budget materials 
in evidence show that from 1971, when suit was filed, until 
1979, the TYC spent more than $125,000,000 on its institutions 
alone. ROA 176-78; plaintiffs' exhibits 4, 5. In 1979, the 
figure exceeded $18,000,000. And the TYC's earlier claim 
to this Court of "significant changes" related to this suit, 
made since the 1973 trial, refers to millions of dollars of 
new programs in "community services" as alternatives to institu­
tional confinement. For example, in 1974 the TYC began "pilot 
projects" in residential contract services that, in 1979, 
were budgeted at $2,909,068; community assistance projects 
for youths diverted from commitment were begun in 1976 and

-22-



their 1979 budget was $2,604,000; halfway house budgets have 
risen from nominal amounts prior to trial to $1,402,499 in 
1979; the 1979 overall central office budget for community 
services —  not including institutional operations —  was 
$7,170,913, having risen from less than a million at the time 
of trial.

In short, the fees and costs awarded are 
insignificant when compared to the millions the TYC has spent 
on its programs related to this litigation. And even if the 
award would have some noticeable effect somewhere in the recesses 
of the TYC budget, that does not make it "manifestly unjust." 
After all, the Supreme Court in Hutto v. Finney, imposing 
a substantial award on a small prison system, was aware that 
fees "could impose a substantial burden on the State to make 
unbudgeted disbursements to satisfy obligations stemming from 
past . . . activities." 437 U.S. at 708 (Powell, J., dissenting). 
See also Knighton v. Watkins, 616 F.2d 795, 799-800 (5th Cir.
1980) (prison system's "meager" budget no defense to fee award); 
Corpus v. Estelle, supra, 605 F.2d at 180; cf. Aware Women 
Clinic, Inc. v. City of Cocoa Beach, 629 F.2d 1146, 1149-50 
(5th Cir. 1980) (financial burden on taxpayers not special 
circumstance justifying denial of fees).

The fact that plaintiffs' attorneys were mostly 
salaried employees of legal services organizations does not 
make a fee award "manifestly unjust." Whether by inadvertence 
or otherwise, defendants fail to mention the long line of

-23-



decisions in this Court holding that fees may not be denied 
or reduced because counsel is employed by a civil rights organi­
zation. See, e.g., Watkins v. Mobile Housing Board, 632 F.2d
565, 567 (5th Cir. 1980); Thompson v. Madison County 3oard 
of Education, 496 F.2d 682, 689 (5th Cir. 1974); Fairley v. 
Patterson, 493 F.2d 598, 606-07 (5th Cir. 1974); Lee v. Southern 
Home Sites Corp., 444 F.2d 143, 147, n. 3 (5th Cir. 1971),
Clark v. American Marine Corp., 437 F.2d 949 (5th Cir. 1971), 
a£f'g 320 F.Supp. 709 (E.D. La. 1970); Miller v. Amusement 
Enterprises, Inc., 426 F.2d 534, 538-39 (5th Cir. 1970); see 
also Leeds v. Watson, 630 F.2d 674 (9th Cir. 1980); Bills 
v. Hodges, 628 F.2d 844, 847 (4th Cir. 1980); Dennis v. Chang, 
611 F.2d 1302 (9th Cir. 1980). Indeed, Congress consciously 
intended the 1976 Act to authorize fees in such cases, citing 
the Court's decision in Fairley v. Patterson, supra. See 
House Report No. 94-1558, supra, at p. 8, n. 16.

Finally, contrary to defendants' protestations 
about the "manifest injustice" of a "new and unanticipated" 
award covering services rendered prior to the 1976 Act, the 
Texas Legislature in fact planned for just such an award.
In its 1977 amendments to Article 6252-26, Vernon's Texas 
Civil Statutes, the Legislature acknowledged State liability 
for awards of damages, "costs and attorney fees" against State 
officers and expressly provided that such liability covers 
not only subsequently filed cases but also "all judgments 
in cases pending or on appeal on the effective date of the

-24-



Act" (August 29, 1977) (emphasis added). In short, the Texas
Legislature contemplated payment of fee judgments in cases, 
like the present one, pending when its statute became law. 
The Texas statute is thus harmonious with the 1976 Act in 
recognizing the fee liability here. See Corpus v. Estelle, 
supra, 605 F.2d at 180, n. 9.

-25-



III. the district court did not abuse its
DISCRETION IN MAKING THE AWARD HERE

A. It Was Not An Abuse Of Discretion To 
Compensate Plaintiffs' Attorneys For 
All Time Reasonably Spent On This Case
Defendants ask the Court to hold, as a matter 

of law, that it was not within the trial court's discretion 
to award fees for all time reasonably spent by plaintiffs' 
counsel. Defendants' argument is that the Court must examine 
each legal "issue" and decide whether plaintiffs "prevailed" 
on the issue. Then, the Court must apportion the time for 
each issue, so that counsel is not entitled to compensation 
for work on issues on which the parties did not "prevail." 
Specifically, defendants assert that plaintiffs spent substantial 
time pursuing a "right to treatment" claim on which they did 
not prevail and for which their lawyers must go uncompensated.

Fortunately, this artificial, abstract and 
unworkable approach is not the law. In Jones v. Diamond,
___ F.2d ___, No. 78-1289 (5th Cir. Jan. 29, 1981) (slip op.,
p. 37-38), the Court, en banc, held that counsel for the pre­
vailing parties "should be paid, as is traditional with attorneys 
compensated by a fee-paying client, 'for all time reasonably 
expended on a matter'" (quoting from Senate Report No. 94- 
1011, supra, at 6). The Court added that "the mere fact that 
the litigants did not succeed in obtaining a judgment on all 
of the claims asserted does not mean that time spent pursuing 
these claims should automatically be disallowed." See also

-26-



Miller v. Carson, 628 F.2d 346, 348-49 (5th Cir. 1980).
The proper approach is that prevailing counsel 

is entitled to fees for all time reasonably expended in pursuit 
of the client's claims. See e.g. Seigal v. Merrick, 619 F.2d 
160, 164-65 (2d Cir. 1980); Reproductive Health Services v. 
Freeman, 614 F.2d 585 (8th Cir. 1980); Northcross v. Board 
of Education, 611 F.2d 624, 636 (6th Cir. 1979); Crain v.
City of Mountain Home, 611 F.2d 726, 729, n. 7 (8th Cir. 1979); 
Brown v. Bathke, 588 F.2d 634, 637 (8th Cir. 1978); Donaldson 
v. 0 1 Connor, 454 F.Supp. 311, 315-17 (N.D. Fla. 1978) (granting 
fees for work pursuing unsuccessful right to treatment c l a i m ) '

—  The cases cited by defendants do not support their argument. 
This Court's earlier decision in Jones v. Diamond, 594 F.2d 
997 (5th Cir. 1979), did not involve the amount of counsel 
fees as an issue in the case; the Court did not direct the 
trial court to award fees only on prevailing legal issues. 
Rather, consistent with the recent Jones v. Diamond decision, 
the Court noted that the district court on remand "should 
take into account, among other factors, the extent to which 
the plaintiffs have prevailed. . . . "  In Rainey v. Jackson 
State College, 551 F.2d 672 (5th Cir. 197777 this Court held 
that the fee award made by the lower court was inadequate-!
The apportioning of time between winning and losing legal 
issues was not in issue.

The First Circuit, in Nadeau v. Helgemoe, 581 F.2d 275 
(1978), adopted essentially the same standard as Brown v.
Bathke, 588 F.2d 634 (8th Cir. 1978): plaintiffs are entitled
to an award of fees for all time reasonably expended in pursuit 
of the ultimate result achieved. Molina v. Richardson, 578 
F. 2d 846 (9th Cir. 1978), cert, denied 439 UTSTTCM'tf (1978), 
did not involve the amount of fees; the Ninth Circuit reversed 
the trial court's denial of fees. Sweeney v. Board of Trustees, 
569 F.2d 169 (1st Cir. 1978), vacated on other grounds 439 
U.S. 24 (1978), merely affirmed the lower court's award of 
fees; contrary to defendants' representation in their brief, 
the First Circuit did not direct the lower court to do anything. 
Pearson v. Western Electric, 542 F.2d 1150 (10th Cir. 1976),
(footnote 15 continued on p. 28.)

-27-



The Court may of course exclude hours spent on frivolous or 
manufactured issues. A rule of reason should govern —  if 
plaintiffs' counsel obtained positive results, and not unrea­
sonably pursued some legal theories on which they did not 
prevail, they should be entitled to reasonable fees for all 
their services. In other words, the focus should be on the 
extent to which the plaintiffs actually prevailed in obtaining 
substantial relief, not on some mechanistic assessment of 
particular legal issues. This is simply a practical application 
of the rules of Johnson v. Georgia Highway Express, 488 F .2d 
714 (5th Cir. 1974), in which the Court directed trial courts 
to consider the "results obtained" as one factor in determining 
the amount of fees.

------- - did not involve the amount of fees or even whether
fees should be awarded, so its statement about fees being 
proportionate to success is pure dictum. Similarly, Williams 
v. General Foods Corp., 492 F.2d 399 C7th Cir. 1974), did 
not involve the amount of fees.

Hughes v. Repko, 578 F.2d 483 (3d Cir. 1978), and a district 
court decision relying on Hughes, Peeler v. Longview Independent 
School District, 485 F.Supp. 117 (E.D . Tex. 19 79 ) , 3o say 
that fees should be awarded for "hours of legal service reasonably 
supportive of [successful] claims." See 578 F.2d at 487.
(The citation to Hughes in Ross v. Horn, 598 F.2d 1312 (3d 
Cir. 1979), cert, denied 100 S.Ct. 3048 (1980), is dictum.)
The Hughes court reversed the trial court's too mechanical 
reduction of fees. The Hughes court explained that the analysis 
was based on "the recognition that legal services fairly devoted 
to successful claims are compensable even though those very 
same legal services also supported the prosecution of the 
unsuccessful claim." 578 F.2d at 487. In this case, most 
of the legal services that supported the prosecution of the 
right to treatment claim also supported plaintiffs' Eighth 
Amendment claim. See discussion of Smith v. Fletcher, at 
p. 29 , infra.

-28-



Further, as the Court explained in Jones v.
Diamond, supra:

"In fixing the fee, the district court should 
be mindful that in complex civil rights litiga­
tion, and particularly in prisoners' rights 
cases, issues are overlapping and intertwined.
In order to represent their clients adequately, 
attorneys must explore fully every aspect of 
the case, develop all of the evidence and present 
it to the court." Slip op., p. 38.

In the present case it is simply not possible to sort out
the time spent on the right to treatment issue as opposed
to the Eighth Amendment issues. The testimony was that the
issues overlapped to a very substantial degree and that services
devoted to the Eighth Amendment claim were in most respects
the same services as on the right to treatment issue. Tr.
73-77. And the "bulk of the testimony [at trial] was directed
toward Eighth Amendment violations," matters on which plaintiffs
unquestionably prevailed. Tr. 77. This case is like Smith
v. Fletcher, 559 F.2d 1014 (5th Cir. 1977), where this Court
rejected the contention that because the plaintiff won a sex
discrimination claim but lost a handicap claim she could not
be awarded fees for time her attorney spent pursuing both.
The Court said "the issues were so intertwined as to make
such a division impossible." 559 F.2d at 1018, n. 9.

Finally, despite the Court's reluctance on the
right to treatment in its earlier decision in this case, 562
F.2d 993, the fact is that plaintiffs arguably prevailed even
on this issue. This action was undoubtedly a significant

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catalyst in bringing about the TYC's complete reorganization, 
the expenditure of millions of dollars for non-institutional 
alternatives for the plaintiff class and improvements in all 
aspects of the "treatment program" (pp. 5-6, supra). When 
a lawsuit is a significant catalyst in bringing about relief 
sought by the plaintiffs, they are deemed to have "prevailed" 
for the purpose of obtaining counsel fees. See Watkins v.
Mobile Housing Board, 632 F.2d 565, 567 (5th Cir. 1980); Miller 
v. Carson, 628 F.2d 346, 348 (5th Cir. 1980); Doe v. Marshall,
622 F.2d 118, 120 (5th Cir. 1980); Robinson v. Kimbrough,
620 F.2d 468, 475-78 (5th Cir. 1980); Iranian Students 
Association v. Edwards, 604 F.2d 352 (5th Cir. 1979); cf.
Panior v. Iberville Parish School Board, 543 F.2d 1117, 1119, 
n. 4 (5th Cir. 1976) (voting rights act plaintiffs "prevailed" 
even though final plan approved over their objections).

Thus, because it was not unreasonable for plaintiffs 
to pursue the right to treatment claim, because the work on 
it substantially overlapped with issues on which plaintiffs 
indisputably prevailed, and because plaintiffs arguably prevailed 
even on the treatment issue, the court below properly awarded 
fees for all of counsel's work.

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B. The District Court Did Not Abuse Its 
Discretion By Enhancing The Award To 
Account For The Contingent Nature Of Any Fee
Applying the Johnson v. Georgia Highway Express

factor of "whether the fee is fixed or contingent," the court
below enhanced the fees awarded "by a factor of two." ROA
254. However, the court ordered immediate payment of only
the base fees, not the enhancement. ROA 256.

Defendants' contention here that the fees should
not have been enhanced vividly illustrates why an interlocutory
appeal should not be allowed. The district court did not
require defendants to pay the enhanced amount until "the time
of final adjudication of this action." ROA 256. The propriety
of the use of a multiplier will plainly be reviewable upon
appeal from a final judgment. Thus, under the authorities
in point I, supra, the order is not appealable. See e.g.
Firestone Tire & Rubber Co. v. Risjord, ___ U.S. , 49 U.S.L.W.
4089, 4091 (Jan. 13, 1981); Coopers & Lybrand v. Livesay,
437 U.S. 463, 468-69 (1978).

It is true that the court below directed defendants
to pay interest on the entire amount, including the enhancement.
But the interest is not paid periodically; it becomes payable
only after final judgment. Moreover, plaintiffs themselves
stipulated to pay interest on fees received, if it were later
determined that any fees should not have been awarded. See
p. 10 , supra; ROA 266-67.

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Finally, the case law amply supports the use 
of contingency multipliers. The purpose is to recognize that 
no fee would be paid if the case were unsuccessful; and lawyers 
"are entitled to be paid more when successful than those who 
are assured of compensation regardless of result." Jones 
v. Diamond, supra, slip, op., p. 39; see also Schneider v.
City of Albany, 628 F.2d 915, 920 (5th Cir. 1980); Knighton 
v. Watkins, 616 F.2d 795, 800-01 (5th Cir. 1980); Northcross 
v. Board of Education, 611 F.2d 624, 641 (6th Cir. 1979);
Wolf v. Frank, 555 F.2d 1213, 1218 (5th Cir. 1977); Miller 
v. Mackey International, Inc., 515 F.2d 241 (5th Cir. 1975);
Keith v. Volpe, 86 F.R.D. 565, 577 (C.D. Cal. 1980); see generally 
Berger, Court Awarded Attorneys Fees: What is "Reasonable"?,
126 U. Pa. L. Rev. 281 , 324-26 (1977).— '1 As for defendants' 
contention that no enhancement should be used when plaintiffs' 
lawyers are employed by a civil rights organization, this 
Court has uniformly adhered to the position that fees may 
not be reduced for this reason. See cases cited at p. 24, 
supra; see also Keith v. Volpe, supra (3.5 multiplier for 
public interest lawyers, making award $2,204,534.99).

16/ Defendants cite Dean v. Gladney, 451 F.Supp. 1313 (S.D. 
Tex. 1978), aff'd 621 F.2d 1331 (5th Cir. 1980), but the case 
is not in point. Neither the district court nor this Court 
said anything one way or another about a multiplier in Dean.

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C. The Evidence Was Sufficient To
Support The District Court's Award
The Act authorizes the district court "in its 

discretion" to award reasonable fees. 42 U.S.C. Section 1988. 
Awards are reviewed only for abuse of the trial court's discre­
tion. See e.g. Knighton v. Watkins, supra, 616 F.2d at 800, 
and cases cited; Johnson v. Georgia Highway Express, supra,
488 F.2d at 716-17.

Defendants here do not contend that any finding 
of fact by the trial court was "clearly erroneous." Fed.
R. Civ. P. 52(a). The court below found as a fact that the 
hours claimed by plaintiffs' counsel were understated. ROA 
247-48; see Id., at 23, 185, 240. The court also used its 
own observations and intimate familiarity with the entire 
litigation, the defense tactics and counsel's work product 
in deciding both that the time spent was reasonable and that 
the rates sought were appropriate for this kind of litigation. 
ROA 247-59.

The court below found as a fact that counsel 
reconstructed the time spent on this action using a "meticulous" 
examination of the record. ROA 258. The evidence was that 
there was no unnecessary duplication of effort. Tr. 154-56.—  ̂
The court credited both the "care with which plaintiffs' counsel

—  ̂Use of more than one attorney for certain services was 
not improper. Defendants themselves used nine attorneys and 
three law students. ROA 112. For plaintiffs to have used 
only one attorney would, in some instances, have bordered 
on malpractice. See Tr. 154-56.

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prepared their affidavits and the credibility of their testimony." 
Reconstruction from other records is not the most desirable
method of presenting the time spent; but, as this Court has
held, contemporaneous time documentation is not essential
to an award of fees. Harkless v. Sweeny Independent School
District, 608 F.2d 594, 597 (5th Cir. 1979):

"While it is by far the better practice for 
attorneys to keep time sheets, such documentation 
is not always essential. Here the representation 
was not rendered by a law firm primarily engaged 
in providing services to paying clients, but 
by a group of lawyers motivated by their conception 
of the public interest, who make it a practice 
not to accept compensation from their clients.
. . . As the Court of Appeals for the First
Circuit suggests, the ends of justice would 
not be well served by demanding detailed docu­
mentation of the expenditure of time made prior 
to the passage of the statute." Souza v. 
Southworth, 564 F.2d 609 (1st CirT 19 71) .
Defendants grumble about the rates awarded,

but the rates are entirely consistent with (if not more modest
than) awards in similar cases. See e.g. Northcross v. Board
of Education, 611 F.2d 624 (6th Cir. 1979) ($125.00 an hour
for trial work and $75.00 an hour for other services); Harkless
v. Sweeny Independent School District, 608 F.2d 594 (5th Cir.
1979) ($75.00 an hour); Corpus v. Estelle, 605 F.2d 175 (5th
Cir. 1980) ($90.00 an hour for trial and appellate work, $75.00
an hour for other services); Cruz v. Beto, 603 F.2d 1178 (5th 
Cir. 1979) (same rates as in Corpus and the present case); 
Wolf v. Frank, supra ($150.00 an hour for trial work, $100.00 
an hour for other services) ^

1 8 /— ' The affidavits of plaintiffs' experts show that the rates 
approved below are in fact "quite modest." ROA 185; 240-41.

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In addition, it must be recognized that the 
fees were not paid at the time the services were rendered. 
Defendants, not plaintiffs' counsel, had the use of the funds 
during the entire period of the litigation. Moreover, this 
has been a period of galloping inflation (e.g. the fees of 
defendants' expert witness have almost doubled during this 
litigation, Tr. 128). It is appropriate to take into considera­
tion both the inflation and the delay in payment since the 
legal services were rendered. See e.g. Keith v. Volpe, 86 
F.R.D. 565, 577 (C.D. Cal. 1980); Parker v. Califano, 443 
F.Supp. 789, 793 (D.D.C. 1978). When the Court here looks 
either to the effect of inflation or to the present value 
of fees awarded for services several years ago, the fee awarded 
here becomes extremely modest. Thus, with inflation of 9 
percent since 1973,—  ̂ hourly rates of $75.00 in 1980 are
equivalent to rates of only $41.00 in 1973. Similarly, if

20 /we assume an interest rate of 9 percent,—  the present value 
of $182,310 received in 1973 is $333,269.81. The award was 
well within the trial court's discretion.

19/—  This has been the rate of inflation in the Consumer Price 
Index since 1973. See Bureau of Economic Statistics, Inc., 
The Handbook of Basic Economic Statistics, pp. 97-101 (Decem- 
ber, 1980).
20 /—  This is the statutory interest rate under Texas law. 
Vernon's Texas Civil Statutes, Article 5069-1.05.

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CONCLUSION
For the reasons stated, the Court should dismiss 

the appeal; alternatively, the Court should affirm the decision 
below. In either event, the case should be remanded for an 
award of additional fees for this appeal.— ^
Dated: February 13, 1981

Respectfully submitted,

c______
William Bennett Turner 
Donna Brorby 
354 Pine Street 
San Francisco, CA 94104
Special Counsel for 
Plaintiffs-Appellees

Peter B. Sandmann
354 Pine Street
San Francisco, CA 94104
Peter Bull 
Pauline H. Tesler 
National Center for Youth Law 
1663 Mission Street, 5th Floor 
San Francisco, CA 94103
Attorneys for

Plaintiffs-Appellees

21/—  See Knighton v. Watkins, 616 F.2d 795, 801 (5th Cir. 1980): 
Corpus v. Estelle, 605 F .2d 175, 180-81 (5th Cir. 1979); Miller 
v7 Car son, 563 F.2d 741 , 756 (5th Cir. 1977 ); Panior v. Iberville
Parish School Board, 543 F.2d 1117, 1119, n. 4 (5th Cir. 19/6) : 
Carter v. Noble, 5~Z6 F.2d 677, 679 (5th Cir. 1976).

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CERTIFICATE OF SERVICE BY MAIL

I hereby certify that on February 13, 1981, I served
two copies of the foregoing Brief for Appellees on counsel
for appellants, by United States mail, postage prepaid, addressed
as follows:
Charles Sharman 
Assistant Attorney General 
P. 0. Box 12548 
Capitol Station 
Austin, TX 78711

Anne Brunetti