Taylor v. W.L. Sterrett Petition for Rehearing of the Denial of Attorney's Fees

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
NO. 79-3851

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

V S .

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

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

Dallas Division

PETITION FOR REHEARING OF THE DENIAL 
OF ATTORNEY'S FEES TO THE NAACP LEGAL 
DEFENSE AND EDUCATIONAL FUND, INC. (LDF)

This Court's determination to deny fees to LDF is based 
upon an obvious mistake of fact and should therefore be recon- 
s idered.

The decision to deny fees to LDF for work done on the ini-
1 /tial case between 1972-76 is grounded solely upon the following

1/ Nearly all of the compensation sought by LDF falls into this 
category.



factual premise:
In the case under consideration, attorney's fees for the initial case 

had been denied as late as July 20,
1976 (date of the last amended order 
of the District Court); this denial 
was never appealed. The initial seg­
ment of this case had, therefore, been 
concluded on that date....

Slip. op. at 5180.
With all respect, this statement is simply inaccurate. Were 

it accurate, LDF would never have prosecuted this appeal. We fully 
recognize that the denial of attorney's fees on July 20, 1976 
would have precluded an award of fees under the Civil Rights 
Attorney's Fees Act of 1976 (effective October 19, 1976) for 
nearly all of the hours claimed by LDF. However, there was 
no such denial of attorney's fees in this case.

Annexed hereto as Appendix A is a copy of the district 
court's Amended Order of July 20, 1976. It does not say a word 
about attorney's fees. Indeed, LDF did not even move for fees 
at that time. Thus, there is simply no factual basis for the 
Court's statement that fees had been denied as late as July 20,
1976. That statement —  crucial to the Court's holding denying 
fees to LDF —  is simply a mistake. In scrutinizing this volumi­
nous 10 year-old record, an error was made.

LDF did not move for fees covering the 1972-76 period of the 
original case until July 3, 1979, well after the effective date

2



of the Act. The propriety of waiting until then to seek fees 
is clearly established by Corpus v. Estelle, 605 F.2d 175 
(5th Cir. 1979), cert, denied, 445 U.S. 919 (1980)(counsel 
waited until 1977 to seek fees for the original case, which
had been concluded in 1971), and is not questioned by the

2/Court's opinion in this case. Slip. op. at 5180.
The only distinction between this case and Corpus is that

here the district court denied fees at one very early point
in the case: it's initial decision of June 5, 1972. Taylor
v. Sterrett, 344 F.Supp. 411, 423 (N.D. Tex. 1972). We fully
agree that this determination precludes the granting of fees

3/
for work done prior to that date. However, the initial case 
continued long after June 5, 1972, encompassing two appeals 
decided on the merits, a third appeal dismissed by this Court, 
and various activities in the district court. LDF played a 
major role in these post-June 5, 1972 proceedings in the original 
case, including presentation of oral argument for plaintiffs on 
the first appeal. However, LDF did not seek fees for these pro-

2/ The date of the fee applications in both Corpus and this case 
did not affect pendency as of October 19, 1976, because in both 
cases relief proceedings were pending at that time. Slip op. at 5180.
3/ A small portion of the 70.6 hours claimed by Mr. Bass' affi­
davit falls within this period.

3



ceedinqs until July 3, 1979, and the district court did not
rule upon our right to fees for these proceedings until it 
entered its order denying fees on October 23, 1979.

At the outset of the Court's opinion, during a discussion 
of the history of the case, reference is made to an Amended 
Judgment entered by the district court upon remand after the 
first appeal. Slip. Op. at 5177. That Amended Judgment, 
signed on November 1, 1974, also does not say a word about
attorney's fees. A copy is annexed hereto as Appendix B.

The Court further notes in this early passage of the 
opinion that "[t]he denial of attorney's fees in the original 
judgment was not questioned either on the first or the second 
appeal. The two amended judgments neither reserved the question 
nor altered the denial of fees." Slip. op. at 5177. These state­
ments are true, but they are also irrelevant under the law of 
this Circuit. Neither the 1974 Amended Judgment nor the 1976 
Amended Order actually denied attorney's fees for the post- 
June 5, 1972 portion of the original case, as the Court mis­
takenly declares in announcing its holding (slip. op. at 5180)? 
and, as the Court recognizes (ibid.), in this Circuit fees may 
not be denied unless the district court had "finally disposed" 
of the attorney's fee issue prior to the effective date of the 
Act. The documents annexed to this petition obviously did not 
"finally dispose" of the question of attorney's fees for post-

4



June 5, 1972 work on the original case.
In this Circuit, there is no time limitation for seeking 

attorney's fees under 42 U.S.C. §1988. Corpus v. Estelle, 
supra; Knighton v. Watkins, 616 F.2d 795, 797 (5th Cir. 1980); 
Van Ooteghem v. Gray, 628 F.2d 488, 497 (5th Cir. 1980); Jones 
v. Dealers Tractor and Equipment Co., 634 F.2d 180, 181-82 
(5th Cir. 1981). LDF was entirely justified in requesting 
fees in 1979, once the Act had been passed and our entitlement 
to fees for work done after June 5, 1972 was clear. Since prior 
to the Act's passage the district court never denied fees for 
post-June 5, 1972 work on the original case, LDF is entitled to 
fees for that period.

Respectfully submitted

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

Suite 2030
10 Columbus Circle
New York, New York 10019

ATTORNEYS FOR PLAINTIFFS 
CROSS-APPELLANTS

5



CERTIFICATE OF SERVICE

I, JOEL BERGER, hereby certify that on April 3 , 1981,
I served a copy of the within petition for rehearing 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.



APPENDIX A



TAYLOR v. STERRETT 5174

Joseph TAYLOR et al., Plaintiffs-Ap- 
pellees, Cross Appellants,

v.
W. L. STERRETT et al.. 

Defendants-Appellees,

Garry Weber, County Judge of Dallas 
Co., Jim Jackson, Nancy Judy, Jim 
Tyson, Roy Orr, etc., Defendants-Ap- 
pellants, Cross Appellees.

No. 79-3851.

United States Court of Appeals, 
Fifth Circuit.

Unit A

March 25, 1981.

Prior to receipt of mandate on appeal 
from interlocutory orders, 600 F.2d 1135, 
the United States District Court for the 
Northern District of Texas, Sarah Tilgh- 
man Hughes, J., awarded attorney fees 
under civil rights attorney fee statute to 
counsel for plaintiff who successfully 
challenged conditions in Dallas County 
jail, and appeal was taken. The Court of 
Appeals, Coleman, Circuit Judge, held 
that: (1) since orders on appeal were only 
interlocutory, district court was not di­
vested of jurisdiction as to award for 
prior orders; (2) since fee request for 
initial proceedings had been denied prior 
to effective date of fee statute, fees could 
be awarded only for work relating to 
supplemental proceedings stage, which 
was pending on effective date of the fee 
statute and up to time work began on 
matters relating to the interlocutory or­
der; (3) plaintiff did not prevail on any 
matters pertaining to the interlocutory or 
subsequent orders where it was held that 
district court should have declined juris­
diction; and (4) it was not abuse of dis­

cretion to deny fees to legal service or­
ganization.

Affirmed in part; reversed and re­
manded in part.

1. Federal Courts <s=>681
General rule is that a district court is 

divested of jurisdiction on filing of notice 
of appeal with respect to any matters 
involved in the appeal; however, where 
an appeal is allowed from an interlocuto­
ry order, the district court may still pro­
ceed with the matters not involved in the 
appeal.

2. Civil Rights <3=̂ 13.17
Since appeal from district court or­

ders, in civil rights action challenging 
conditions in Dallas County jail, ordering 
commissions’ court to buy land and adapt 
this land for a new jail and directing 
sheriff not to accept new inmates when 
present jail was full, involved only such 
orders and subsequent ones, the district 
court was divest of jurisdiction only as to 
matters relating to such interlocutory or­
ders and was not deprived of jurisdiction 
to award attorney fees for work relating 
to prior orders. 28 U.S.C.A. § 1292(a)(1), 
42 U.S.C.A. § 1988.

3. Civil Rights 13.17 
Federal Courts <s=830

Decision to award attorney’s fees un­
der civil rights attorney fee statute is 
delegated to the discretion of the trial 
court, and its decision will not be dis­
turbed absent showing of abuse. 42 U.S. 
C.A. § 1988.

4. Civil Rights «=> 13.17
Although it is discretionary whether 

to award fees under civil rights attorney 
fee statute, a successful civil rights plain-

Synopses, Syllabi and Key Number Classification 
COPYRIGHT ©  1981, by WEST PUBLISHING CO.

The Synopses, Syllabi and Key Number Classifi­
cation constitute no part of the opinion of the court.



5175 TAYLOR v. STERRETT

tiff should ordinarily recover an attor­
ney’s fee unless special circumstances 
would render such award unjust. 42 U.S. 
C.A. § 1988.

5. Civil Rights 13.17
For purpose of amended version of 

civil rights attorney fee statute, which 
applies to all cases pending on the effec­
tive date, a case is considered “ pending” 
if a motion for fees for the initial case is 
unresolved or is on appeal on October 19, 
1976, the effective date of the amended 
version. 42 U.S.C.A. § 1988.

See publication Words and Phrases 
for other judicial constructions and 
definitions.

6. Civil Rights >3= 13.17
Although August 15, 1974 attorney 

fees motion was still pending on effective 
date of 1966 amendment to civil rights 
attorney fee statute, since that motion 
requested fees for time spent in enforce­
ment proceedings only it could not be 
used to make the entire Civil Rights Act 
suit pending for purpose of fee award. 
42 U.S.C.A. § 1988.

7. Civil Rights ®= 13.17
Since injunctive relief in Civil Rights 

Act suit challenging conditions in Dallas 
County jail had been affirmed prior to 
effective date of 1976 amendment to civil 
rights attorney fee statute and only sup­
plemental enforcement proceedings were 
pending on effective date of the amend­
ment and preamendment final judgment 
denying fee request had not been appeal­
ed fees could be awarded under the stat­
utes only for work relating to supplemen­
tal proceeding stage of the case between 
June 24, 1974 and the time work began 
on matters relating to interlocutory or­
ders which were on appeal at time of the 
motion; however, if attorney fee issue

for initial case had not been decided on 
effective date of the amendment such 
unresolved issue apparently would have 
sufficed to make entire case pending. 42 
U.S.C.A. § 1988.

8. Civil Rights >3=13.17

Proper focus in determining whether 
a movant is the “ prevailing party” for 
purpose of award of attorney fees under 
the civil rights attorney fee statute is 
whether movant has been successful on 
the central issue as exhibited by the facts 
that he has acquired the primary relief 
sought, and fact that compliance is volun­
tary is no justification for holding that a 
party did not prevail. 42 U.S.C.A. § 1988.

See publication Words and Phrases 
for other judicial constructions and 
definitions.

9. Civil Rights >3=13.17

Where although central issue on pro­
ceeding supplemental to issuance of in­
junctive relief in Civil Rights Act suit 
challenging conditions in Dallas County 
jail was to ensure compliance with the 
judgment and primary relief sought in 
such proceedings was compliance and up 
until April order ordering commissions’ 
court to buy land and adapt this land for 
new jail plaintiffs were prevailing parties 
and such order even stated that sheriff 
was in compliance with “ most of the or­
ders,” the plaintiff did not “prevail,” for 
purpose of civil rights attorney fee stat­
ute, on any matters pertaining to the 
April order or any subsequent order as it 
was held that the district court should 
have declined jurisdiction. 42 U.S.C.A. 
§ 1988.

See publication Words and Phrases 
for other judicial constructions and 
definitions.



TAYLOR v. STERRETT 5176

10. Civil Rights 13.17
Time spent by more than one attor­

ney where only one attorney is needed 
may be discounted in awarding attorney 
fees under civil rights attorney fee stat­
ute. 42 U.S.C.A. § 1988.

11. Civil Rights <&=> 13.17
Refusal to award attorney fees to 

legal service organization in Civil Rights 
Act was not abuse of discretion given 
small amount of compensable time 
claimed, i. e., approximately ten hours, 
duplicative nature of the work and fact 
that district court specifically found that 
organization’s services here not neces­
sary. 42 U.S.C.A. § 1988.

12. Civil Rights <3= 13.17
Time spent by civil rights plaintiff 

counsel opposing intervention by proper­
ty owners protesting proposed conversion 
of vacant hospital into minimum security 
jail was excluded in computing fee award 
under Civil Rights Attorney Fee Act as 
opposition was irrelevant to goal of ob­
taining compliance with injunction order, 
which issued prior to effective date of fee 
statute, and attempted intervention was 
also a circumstance beyond initial defend­
ant’s control. 42 U.S.C.A. § 1988.

13. Civil Rights 13.17
District court’s failure to make spe­

cific findings on the Johnson factors in 
passing on motion for attorney fee award 
under civil rights attorney statute could 
be excused under the Davis reasons as 
plaintiff presents a memoranda as to ap­
plication of Johnson factors and award of 
fees to private counsel and denial of fees 
to legal service organization did not rep­
resent any palpable abuse of discretion. 
42 U.S.C.A. § 1988.

Appeals from the United States Dis­
trict Court for the Northern District of 
Texas.

Before BROWN, COLEMAN and GEE, 
Circuit Judges.

COLEMAN, Circuit Judge.

This case was originally brought as a 
challenge to conditions in the Dallas 
County, Texas, jail system. Once more it 
appears here after protracted litigation 
over a period of nearly ten years, includ­
ing four previous appeals to this Court. 
After the final appellate decision on the 
merits, the District Court awarded fees 
to John Jordan, an attorney for the plain­
tiff class, for time spent on the case from 
June 11, 1974, to July 30, 1979. It denied 
an award of fees to Dallas Legal Services 
Foundation, Inc. (hereinafter DLSF) and 
to NAACP Legal Defense and Education­
al Fund, Inc. (hereinafter LDF), two or­
ganizations which had also participated 
to some extent in behalf of the plaintiff 
class.

The defendants, the Commissioners 
Court of Dallas County, challenge the 
award of fees to Jordan on grounds that 
(1) the District Court had no jurisdiction 
to award fees while the case was on 
appeal; (2) only supplemental enforce­
ment proceedings were pending on the 
effective date of § 1988; (3) plaintiffs did 
not prevail in these proceedings; and (4) 
if plaintiffs could be considered to have 
prevailed in the supplemental proceed­
ings, Jordan should only recover fees for 
time spent between June 11, 1974, and 
December 31, 1976. DLSF and LDF 
cross appeal, arguing that (1) non-profit 
legal service organizations, including fed­
erally-funded projects, may recover fees 
on the same basis as private attorneys;



5177 TAYLOR v. STERRETT

(2) the District Court failed to make find­
ings on the criteria set forth in Johnson 
v. Georgia Highway Express, Inc., 488 
F.2d 714 (5th Cir. 1974); and (3) there are 
no special circumstances warranting deni­
al of fees.

We affirm the denial of fees to LDF 
and DLSF. We reverse and remand the 
award to Jordan for a reduction of 
amount allowed him.

I. History
This was a class action by inmates of 

the Dallas County Jail against the Dallas 
County Commissioners Court and other 
county officials, challenging the condi­
tions there as violative of the Constitu­
tion and of Texas law. It initially filed 
on October 26, 1971. The complaint re­
quested attorney’s fees on behalf of John 
Jordan, an employee of DLSF (Jordan 
went into private practice in June, 1974, 
but the Court requested that he continue 
to represent the plaintiff class). After 
trial on the merits, the District Court in a 
memorandum opinion and judgment Hied 
June b, ivr2, held that the jail did not 
comply with state law and ordered modi­
fication of the physical facilities and 
changes in jail procedure: attorney’s fees 
were denied. Tavlor v. Sterrett. 344 
h'.Supp. 411, 421. 423 (N.D.Tex.1972). 
Defendants' appealed.

On appeal, the Fifth Circuit affirmed 
in part, vacated in part, and remanded 
for exercise of a retained jurisdiction. 
Taylor v. isterrett, 499 F.iid 367, 369 (5th 
Cir. 1974), cert, denied sub nom. 420 U.S. 
983, 95 S.Ct. 1414, 43 L.Ed.2d 665 (1975). 
On remand, the District Court entered an 
amended judgment containing the re­
quired changes. Defendants again ap­
pealed. On this ppppql thp Fifth 
modified and affirmed part of the 
amended lodgment. and vacated and re ­
manded part of it. Taylor v. Sterrett,

532 F.2d 462, 484 (5th Cir. 1976). On July 
20, 1976, the District Court enterecT’an 
amended order conforming to the appel- 

There was no appeal fromlate decision, 
this amended judgment.

appe 
fra

"TTuTcIenial of
attorney's fees in ihe original ludgmenT 
was not questioned either on the first or 
me second appeal. The two amended 
judgments neither reserved the miestio 
nor altered the denial of fees.

ar

¥

Enforcement proceedings began on 
June 24, 1974. The defendants were or­
dered to file reports on their progress at 
specified intervals. At times, plaintiffs 
would respond, the Court would hold 
hearings on the reports, and would issue 
an order commenting on the report and 
identifying topics to be discussed in the 
next report. On August 15, 1974, Jordan 
filed a motion for attorney’s fees for time 
spent in preparation for defendants’ Au­
gust 15, 1974, report and for subsequent 
proceedings. Apparently, this motion 
was never acted upon by the District 
Court.

In 1976, two groups of property owners 
protesting the proposed conversion of a 
vacant hospital into a minimum security 
jail sought intervention in the federal 
court case. Plaintiffs opposed this inter­
vention. The District Court denied inter­
vention, but, upon defendants’ motion, 
joined both as third-party defendants. 
The Fifth Circuit vacated this order of 
joinder. The challenges were then tried 
in state court with the county officials 
prevailing. Oak Lawn Preservation Soci­
ety v. Bd. o f Mgrs. o f Dallas Cty. Hosp., 
566 S.W.2d 315, 318 (Tex.Civ.App.1978), 
writ re f ’d n. r. e.

On February 1, 1977, the plaintiffs 
filed a § 1988 motion for attorney’s fees 
for time spent on the case from October 
19, 1976 to the end of the case. On 
February 8, 1977, the District Court, dis-

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TAYLOR v. STERRETT 5178

appointed with defendants’ progress, ap­
pointed a special master to gather infor­
mation concerning jail facilities and oper­
ations. The special master’s report was 
filed April 15, 1977. The county respond­
ed, pointing out that Texas had estab­
lished an agency to promulgate and en­
force jail standards, and requested the 
Court to decline to retain further juris­
diction of the case. The Court’s April 27 
order (entered as a separate order May 12 
upon defendants’ request) approved the 
special master’s report, ordered the Com­
missioners’ Court to buy land and adopt a 
plan for a new jail within three months, 
and directed the sheriff not to accept new 
inmates when the present jail was full to 
capacity. Defendants then appealed 
from these two orders. During the pend­
ency of this appeal, the enforcement pro­
cedure continued as before.

Jordan, Stanley Bass, LDF staff attor­
ney, and Betsy Julian, DLSF staff attor­
ney, filed an amended motion for attor­
ney’s fees on July 3, 1979, requesting fees 
for services rendered from October 26, 
1971, future services, and past and future 
appeals. Each attorney filed affidavits 
and memoranda detailing time spent on 
the case and discussing application of the 
Johnson factors. The hearing on the mo­
tions was held August 29, 1979.

On August 16, 1979, the Fifth Circuit 
rendered its opinion on the county’s latest 
appeal. Convinced that the District 
Court’s role in improving the Dallas 
County jail had been completed and that 
control of the jail system should be re­
turned to state and local officials, the 
Court vacated the April 27 and May 12 
orders and all other orders and stays still 
in effect. The case was remanded “ with 
directions to the district court to discon­
tinue the further exercise of its retained 
jurisdiction and to dismiss the cause.” 
Taylor v. Sterrett, 600 F.2d 1135, 1141, 
1145-46 (5th Cir. 1979).

On October 23, 1979, the District Court 
found that the case had been pending on 
the effective date of § 1988, that the 
plaintiff class had prevailed, and awarded 
fees of $26,417.50 to John Jordan for all 
time spent on the case from June 11, 
1974, to July 30, 1979, and denied fees to 
DLSF and LDF. DLSF was denied fees 
because the Court found, inter alia, that 
there was no need for its services in that 
period because Jordan was capable of and 
did continue as plaintiffs’ primary coun­
sel at the Court’s request. No reason 
was given for denying fees to LDF. The 
mandate pursuant to our August 19 opin­
ion reached the District Court on October 
25 and the case was dismissed on October 
29.

II. Jurisdiction o f the District Court

[1,2] On appeal of the April 27 and 
May 12 orders, the Court held that these 
orders were appealable under 28 U.S.C. 
§ 1292(aXl) (1976) as interlocutory orders 
modifying the 1972 injunction and, “ nec­
essarily” construing the orders as deny­
ing defendants’ request that the district 
court decline to retain jurisdiction, as re­
fusals to dissolve or modify an injunction. 
600 F.2d at 1140, 1140 n.10. Under this 
construction, it appears the appeal of the 
April 27 and May 12 orders involved only 
those orders and subsequent ones; previ­
ous orders were not involved in the ap­
peal. It is the general rule that a district 
court is divested of jurisdiction upon the 
filing of the notice of appeal with respect 
to any matters involved in the appeal. 9 
Moore’s Federal Practice H 203.11, at 3-44 
(2d ed. 1980). However, where an appeal 
is allowed from an interlocutory order, 
the district court may still proceed with 
matters not involved in the appeal. 9 
Moore’s Federal Practice, supra, at 3-54 
(2d ed. 1980). Therefore, the District

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5179 TAYLOR v. STERRETT

Court was divested of jurisdiction only as 
to matters relating to the April 27 and 
May 12 orders and subsequent orders and, 
for that reason, fees cannot be recovered 
for work relating to these orders. The 
Court still had jurisdiction as to previous 
orders and could award fees for work 
relating to these prior orders.

III. Attorney’s Fees

A. 42 U.S.C. § 1988
[3,4] 42 U.S.C. § 1988, as amended 

October 19, 1976, provides in pertinent 
part:

. . .  In any action or proceeding to 
enforce a provision of sections 1981, 
1982, 1983, 1985, and 1986 of this title, 
Title IX of Public Law 92-318, or in 
any civil action or proceeding, by or on 
behalf of the United States of America, 
to enforce, or charging a violation of, a 
provision of the United States Internal 
Revenue Code, or title VI of the Civil 
Rights Act of 1964, the court, in its 
discretion, may allow the prevailing 
party, other than the United States, a 
reasonable attorneys’ fees as part of 
the fees.

This Court has held that the decision to 
award attorney’s fees is delegated to the 
discretion of the trial court, and its deci­
sion will not be disturbed absent an abuse 
of that discretion. See, e. g., Harkless v. 
Sweeny Independent School District, 608 
F.2d 594, 596 (5th Cir. 1979); Morrow v. 
Dillard, 580 F.2d 1284, 1300 (5th Cir.
1978). Nonetheless, a successful civil 
rights plaintiff should ordinarily recover 
an attorney’s fees under § 1988 unless 
special circumstances would render such 
an awardunjust. S.Rep.No.94 1011, 94th

1. The August 15, 1974, attorney’s fees motion 
was still pending on October 19, 1976, but that 
motion requested fees for time spent in the

Cong., 2d Sess., 4, reprinted in [1976] 
U.S.Code Cong. & Ad.News 5908, 5912; e. 
g., Robinson v. Kimbrough, 620 F.2d 468, 
470 (5th Cir. 1980); Crowe v. Lucas, 595 
F.2d 985, 993 (5th Cir. 1979).

B. Pendency
The amended version of § 1988 applies 

to all cases pending on the effective date. 
Hutto v. Finney, 437 U.S. 678, 694 n.23, 
98 S.Ct. 2565, 2575 n.23, 57 L.Ed.2d 522 
(1978), quoting H.R.Rep.No.94- 1558, p. 4 
n.6 (1976); Escamilla v. Santos, 591 F.2d 
1086, 1088 (5th Cir. 1979). A determina­
tion of pendency here will effectively de­
cide the outcome of this appeal.

[5,6] A case is considered to be pend­
ing if a motion for attorney’s fees for the 
initial case in unresolved or is on appeal 
on October 19, 1976. Gore v. Turner, 563 
F.2d 159, 163 (5th Cir. 1977); Brown v. 
Culpepper, 559 F.2d 274, 276 (5th Cir. 
1977); Rainey v. Jackson State College, 
551 F.2d 672, 676 (5th Cir. 1977).1 How­
ever, according to Escamilla v. Santos, 
591 F.2d at 1088, and Peacock v. Drew 
Municipal Separate School District, 433 
F.Supp. 1072, 1075-76 (N.D.Miss.1977) 
cited with approval in Escamilla, only the 
supplemental proceedings to enforce com­
pliance with the District Court’s judg­
ment were pending on October 19, 1976. 
According to Peacock :

The mere pendency on the date of 
enactment of an attorney fees act of 
supplemental proceedings to effectuate 
a prior final judgment [which had in­
cluded a denial of attorney’s fees] is 
not, in our opinion, sufficient to con­
vert an action into such a “pending 
action” as to warrant an award of at-

enforcement proceedings only and, therefore, 
cannot be used to make the entire case pend­
ing.



TAYLOR v. STERRETT 5180

torney fees under such act pursuant to
Bradley-type retroactive application of
the Act.

433 F.Supp. at 1075. Peacock went on to 
say that if a party prevailed in supple­
mental proceedings which were pending 
on the effective date, then attorney’s fees 
could be awarded for the supplemental 
proceedings, but only for those proceed­
ings. Id. at 1076-77. Similarly, this 
Court, in Escamilla, noted that pendency 
of a motion concerning appellant’s failure 
to comply with a consent decree was in 
the nature of a supplemental proceeding 
to effectuate a prior consent judgment 
and was, therefore, insufficient to sup­
port award of attorney’s fees for the 
initial case. 591 F.2d at 1087-88. A 
final judgment denying fees had already 
been rendered prior to passage of the 
amended version of § 1988. Id. at 1087.

[7] la . the case under consideration. 
attorney’s fees for the initial case Viarl 
been denied as late as . In ly  9 0  1Q7« M a t o  

,of the last amended order of the District 
Court); this denial was never appealed. 
The initial segment of this case had, 
therefore, been concluded on that date; 
the only pending active issue on October 
19, 1976, was the supplemental enforce­
ment proceedings begun on June 24, 1974, 
with the District Court ordering defend­
ants to begin compliance with portions of 
the June 5, 1972, judgment.

Corpus v. Estelle, 605 F.2d 175 (5th Cir.
1979), cert, denied sub nom. Estelle v. 
Corpus, 445 U.S. 919, 100 S.Ct. 1284, 63 
L.Ed.2d 605 (1980), may appear to be the 
contrary since attorney’s fees were 
awarded for work done in the initial case 
and in the supplemental proceedings even 
though the initial case had been conclud­
ed in 1971. 605 F.2d at 176. However, 
attorney’s fees apparently had not been 
requested until conclusion of the enforce­

ment proceedings. Id. at 176-77. Thus, 
it is necessary, according to Robinson v. 
Kimbrough, 620 F.2d 468 (5th Cir. 1980), 
to determine whether the attorney’s fees 
issue has been decided for the initial case; 
if this question has not been decided, 
then apparently this unresolved issue is 
sufficient to make the entire case pend­
ing. Id. at 475, citing, inter alia, Corpus 
v. Estelle. On the other hand, if the 
Court has finally disposed of all issues, 
including the attorney’s fee issue, prior to 
the effective date of § 1988, then supple­
mental proceedings to effectuate a prior 
final judgment are independent of the 
original action and cannot be used to 
make the entire case pending. Id. At­
torney’s fees may then be awarded only 
if these proceedings are pending on the 
effective date. Id.

Miller v. Carson, 628 F.2d 346 (5th Cir.
1980), although urged by appellee at oral 
argument as authority for the proposition 
that a case should not be divided into the 
initial and supplemental proceeding stage 
in order to determine pendency, provides 
no support for appellee’s position. The 
question in Miller was whether the plain­
tiffs were prevailing parties sufficient to 
support an award of attorney’s fees for 
work done on postjudgment motions', the 
issue of whether postjudgqnent proceed­
ings would be sufficient to make the en­
tire case pending was not presented to 
the Court. Id. at 347-48.

Therefore, fees may only be awarded 
here for work relating to the supplemen­
tal proceeding stage of the case between 
June 24, 1974, and the time work began 
on matters relating to the April 27 order.

C. Prevailing Party
[8] Section 1988, by its terms, permits 

an award of attorney’s fees only to a 
“ prevailing party” . The question here, 
since only the supplemental proceedings



5181 TAYLOR v. STERRETT

were pending, is whether appellees pre­
vailed in those proceedings. As Iranian 
Students Association v. Edwards, 604 
F.2d 352 (5th Cir. 1980), explains, the 
proper focus is whether the plaintiff has 
been successful on the central issue as 
exhibited by the fact that he has acquired 
the primary relief sought. Id. at 353. 
The fact that compliance is voluntary is 
no justification for holding that a party 
did not prevail. Robinson v. Kimbrough, 
620 F.2d at 475-76 (5th Cir. 1980); 
Brown v. Culpepper, 559 F.2d at 277 (5th 
Cir. 1977); S.Rep.No.94-1011, supra, at 5.

[9] The central issue of the supple­
mental proceedings here was to ensure 
compliance with the district court judg­
ment; the primary relief sought in these 
proceedings was compliance. Up until 
the April 27 order, the appellees were the 
prevailing parties in that compliance was 
being obtained; the April 27 order even 
stated that the sheriff was in compliance 
with “ most of the orders” contained in 
the June 5, 1972 order. Record, V. 6, p. 
1480. As this Court said in the appeal of 
the April 27 and May 12 orders: “ The 
objects sought to be accomplished in the 
original suit have been accomplished. 
That which was sought to be remedied 
has now been remedied.” 600 F.2d at 
1141. Appellees did not prevail on any 
matters pertaining to the April 27 order 
or any subsequent orders because it was 
held that the District Court should have 
declined jurisdiction.

D. Denial o f Fees to LDF and DLSF
[10,11] The greatest portion of the 

time claimed by Stanley Bass, LDF staff 
attorney, in his 1979 affidavit for attor­

2. This holding in no way based on the fact that
the DLSF is federally funded and that the LDF
is a privately-funded civil rights organization.
Thompson v. Madison County Board of Educa-

ney’s fees was spent on the appeal of the 
initial case and, for that reason, is non- 
compensable. However, a small portion 
of the time claimed may relate to the 
supplemental proceedings (it is impossible 
to tell from Bass’s affidavit); if some of 
this time was expended in relation to the 
enforcement proceedings, it was spent 
only in reading papers of the case and in 
correspondence and telephone conversa­
tions with co-counsel and court clerks. 
Record, V. 8, p. 1916. The same is true of 
the time claimed by Betsy Julian, DLSF 
staff attorney, who was assigned to the 
case in September, 1976; after eliminat­
ing work relating to the April 27 and 
subsequent orders, the remaining 9.3 
hours was spent in reading reports filed 
by defendants, preparing for and attend­
ing hearings on these reports, and confer­
ring with co-counsel. According to John­
son v. Georgia Highway Express, Inc., 
time spent by more than one attorney 
where only one is needed may be dis­
counted. 488 F.2d at 717. Given the 
small amount of compensable time 
claimed, the duplicative nature of the 
work, and the fact that the District Court 
specifically found the DLSF attorney was 
not necessary to the case, Record, V. 8, p. 
1936, we hold that the District Court did 
not abuse its discretion in awarding no 
fees to LDF and DLSF and we affirm 
the denial of fees.2

E. Award of Fees to Jordan

[12,13] The fee award to Jordan must 
be reduced so as to include only time 
spent in the supplemental proceedings 
from June 24, 1974, to December 3, 1976 
(work done after this date related to mat­

ron, 496 F.2d 682, 689 (5th Cir. 1974); Fairly v.
Patterson. 493 F.2d 598, 606 (5th Cir. 1974);
Miller v. Amusement Enterprises, Inc., 426 F.2d
534, 538-39 (5th Cir. 1970).



TAYLOR v. STERRETT 5182

ters involved in the April 27 order). 
Time spent on appeal of the initial case 
and on the intervention matters should 
be excluded. Appellee’s opposition to in­
tervention was irrelevant to the goal of 
obtaining compliance; the attempted in­
tervention was also a circumstance be-

3. The District Court’s failure to make specific 
findings on the Johnson factors may be ex­
cused for the reasons set forth in Davis v. City 
of Abbeville, 633 F.2d 1161 (5th Cir. 1981). 
Since appellee did present memoranda as to the 
application of the Johnson factors and since the

yond appellants’ control. See Robinson v. 
Kimbrough, 620 F.2d at 478 (5th Cir. 
1980). On remand, the District Court 
must reduce Jordan’s award in accord­
ance with the guidelines here announced.3

AFFIRMED in part; REVERSED and 
REMANDED in part.

award of fees to Jordan and denial of fees of 
LDF and DLSF does not represent any “ palpa­
ble abuse of discretion,” we are unable to hold 
that the District Court failed or refused to con­
sider the Johnson factors. At 1163.

Adm. Office, U.S. Courts—West Publishing Company, Saint Paul, Minn.



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FOR TI1E NORTHERN DISTRICT OF TEXAS BI 

DALLAS DIVISION
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CA 3—5220-B

AMENDED ORDER

On this day came before the Court for 
consideration the opinion of the United States 
Court of Appeals for the Fifth Circuit in the 
above styled and numbered cause rendered on 
June 1, 1976.

In accordance with that- opinion, 
paragraph 4 of this Court's November 1, 1974 
Order is revised as follows:

4. The Sheriff is directed not to open out­
going mail addressed to the courts, prosecuting
attorneys, parole or probation officers,governmental agencies, 
members_of the press, and identifiable^attorneys. The 
Sheriff is allowed 48 hours to ascertain whether or 
not an individual addressed as a member of the 
press is in fact such’a press representative.
Inmates wishing to correspond with attorneys must 
present the name and address of such an attorney to 
the Sheriff at least 48 hours before any corres­
pondence to that attorney is mailed for the purpose
of ascertaining whether or not that addressee is

• \

in fact an attorney.



With respect to incoming mail, the Sheriff may 
open mail from the courts, prosecuting attorneys., 
parole or probation officers, governmental agencies, 
members of the press, and identifiable attorneys, 
but only in the presence of the inmate to whom the 
correspondence is addressed, and only for the 
purpose of determining the presence of contraband, 
not for the purpose 'of reading that correspondence. 
Press representatives who wish to correspond with 
an inmate may be required to identify themselves 
and their status in writing before their unread 
mail is distributed to the inmate.

Paragraph 8 of this Court’s November 
1, 1974 Order is hereby vacated and set aside.
’ ‘ XT IS ..THEREFORE ORDERED, ADJUDGED, AND DECREED
that the Order entered by this Court on November 1, 
1974 BE and it hereby IS AMENDED in accordance with 
the above provisions.

SIGNED AND ENTERED this ' day of 1976.

UNITED STATES DISTRICT JUDGE 
SARAH T. HUGHES



IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS 
DALLAS DIVISION 

JOSEPH TAYLOR, ET AL §
V § CIVIL ACTION 3-5220-3
W. L. STERRETT, ET AL §

AMENDED JUDGMENT

On this the L8th day of October, 1974, came on for consideration 
the modification of paragraphs 4, 3 and 10 of the judgment of June 5, 
1972, directed by the United States Court of Appeals (Fifth Circuit) in 
its opinion of August 19, 1974, in the above styled case.

The Court has carefully considered the opinion of the Circuit 
Court and the case of Wolff v. McDonnell (Supreme Court 42 LW 5190 
June 26, 1974) and the argument of counsel and is of the opinion that ' 
this Court's judgment of June 5, 1972, should be modified so that 
paragraphs 4, 9 and 10 should read as follows:

4. The sheriff is directed not to open mail transmitted
between inmates of the jail and the following persons: courts, prosecu­
ting attorney, probation and parole officers, governmental agencies, 
lawyers and the press. If, however, there is a reasonable possibility 
that contraband is included an the mail, it mav be ODened, but only in 
the presence of the inmates.

8. The sheriff is directed not to allow persons to see prisoners
except with the consent or request of the inmate. This has particular
reference to 'cop out' men who have heretofore visited inmates unrepre­
sented by counsel for the purpose of plea bargaining. This provision 
is not intended to eliminate visits from official investigators engaged 
in the efforts to solve crimes or to perform other legitimate duties, 
nor is it intended to eliminate,only to limit plea bargaining. The 
attention of the District Attorney is particularly called to this 
provision.



IT IS 50 ORDERED. 
Signed this the 's' day of OtiMhec, 1974.

£  <  L IUnited States District Judge
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