Gates v. Cook

Sentencing CONCLUSION II. argues that the dis

Garcia-Lopez reasons, foregoing For the we AFFIRM him un have sentenced trict court should Garcia-Lopez’s conviction and sentence. minor for sex with a guideline der the AFFIRMED. guideline than the for criminal sex rather that the district ual abuse.4 He contends 2A3.1, § applying in U.S.S.G.

court erred cross-reference under

through 2A3.2(c)(l), determining proper

§ in the count of convic

base offense level for for guideline

tion. He reasons he was rape improper

forcible was because rape of forcible and because not convicted GATES, individually Nazareth and on foreign in a any alleged rape occurred similarly situated; behalf all others country. He also claims that the district Holms, individually Lee Willie and on findings regarding credibility LB’s court’s similarly situated; all behalf of others unsupported by the evidence. are Zachary, individually Hal and on be similarly situated; the district court’s inter We review half of all others Sentencing Winters, individually de pretation of the Guidelines Mathew and on situated, findings similarly er novo and its factual clear behalf all others Huerta, Plaintiffs-Appellees, States v. ror. United (5th Cir.1999). 861, 364 2A3.2(a) § uses a base offense U.S.S.G. COOK, Superintendent Thomas D. 15 for criminal sexual abuse with a level of Penitentiary, Mississippi State abuse. attempt minor or to commit such Prison; Parchman also known as J.D. 2A3.2(c)(l) cross references Section Demoville, Mississippi of the Member 2A3.1, § which level of uses base offense Penitentiary Board; Turner Ar State attempt criminal sexual abuse ant, Mississippi Member of the State Specifically, abuse. commit such Penitentiary Board; Dale, Mem Sebe 2A3.2(e)(l) provides that the offense “[i]f Mississippi Peniten ber of the State attempt criminal sexual abuse or involved Board; Robinson, tiary Robert D. (as criminal abuse de- to commit sexual Mississippi Peni Member of State 2242), § apply § 2241 or fined 18 U.S.C. tentiary Roberts, Board; Mem H.L. (Criminal Abuse; Attempt § 2A3.1 Sexual Mississippi Peniten State ber Abuse).” Criminal Sexual Commit Williams, tiary Board; Bell John We find no error the district court’s Mississippi, of the State Governor of the cross reference under application Successors, Defendants-Ap their 2A.32(c)(l). Garcia-Lopez has pellees, holding that a convic- pointed to case commission of rape tion of forcible are rape Stevenson; al., Movants, such within the United States X. et Willie cross requisites application for the Shaw, Movant-Appellant, Robert Also, failed to reference. he has show credibility the district court erred respect LB’s testi- determinations with Gaines, Appellant.

mony. Willie Sentencing Guide- Garcia-Lopez July herein to the was sentenced on Reference provisions in effect at the time current lines are to the before the effective date of the Garcia-Lopez sentenced. Sentencing Guidelines. amendments to the Banks; Moore; Banks; Moore; David Darrell Elton Elton David Darrell Gowdy, Ray Plaintiffs- Eddie Gowdy, Ray Plaintiffs- Eddie Appellees, Appellees, v. v. Black; Fordice; Leroy Steve Kirk Leroy Black; Fordice; Steve

Kirk Puckett; Lucas; A.M. Eddie W. Lucas; Puckett; A.M. Eddie W. Phillips, Defendants-Appellees, Defendants-Appellees, Phillips, Belafonte; al., et Alexis D. al., Belafonte; et D. Alexis Intervenors-Plaintiffs, Intervenor-Plaintiffs, Groot; Naylor, Willie Martin Groot, Intervenor- Martin Intervenors-Plaintiffs- Plaintiff-Appellant. Appellants. Gates, individually and on be Nazareth Gates, individually and on be Nazareth similarly situated; others half of all similarly situated; all half of others individually Holms, and on Lee Willie individually Holms, and on Lee Willie similarly situated; all others behalf of situated; similarly behalf of all others individually Zachary, and on be Hal individually Zachary, be Hal and on similarly situated; all others half of situated; similarly half of all others individually Winters, and on Mathew Winters, individually and on Mathew similarly situated, all others behalf of similarly situated, all behalf of others Plaintiffs-Appellees, Plaintiffs-Appellees, v. v. Cook, Superintendent of the D. Thomas Cook, Superintendent D. Thomas Penitentiary, Mississippi also State Penitentiary, Mississippi also State Prison; De Parchman J.D. known as Prison; De known as Parchman J.D. Mississippi moville, Member of the Mississippi moville, Member of the Board; Penitentiary Turner Ar State Penitentiary Board; Turner Ar State Mississippi ant, Member of the State ant, Mississippi Member of State Penitentiary Board; Dale, Mem Sebe Board; Dale, Penitentiary Mem Sebe Mississippi Peniten ber of the State Mississippi Peniten ber of State Robinson, tiary Board; D. Robert Robinson, tiary Board; Robert D. Mississippi of the State Peni Member Mississippi Peni Member of State tentiary Board; Roberts, Mem H.L. Roberts, tentiary Board; H.L. Mem Mississippi ber Peniten State Mississippi Peniten ber of the State tiary Board; Williams, Bell John Williams, tiary Board; John Bell Mississippi, Governor State Mississippi, Governor of State Successors, Defendants-Ap and their Successors, Defendants-Ap and their pellees, pellees,

v. Movants, Stevenson; al., X. et Willie Stevenson; al., Movants, Willie X. et Gaines; Butler; Gary Steven Butler; Willie Gaines; Gary Steven Willie Houston; Shaw; Robert Robert L. Shaw; Houston; Robert L. Robert White; al., Movants-Appellants, White; al., Movants-Appellants, et et Groot; Naylor; Groot; Naylor; Martin

Martin Willie Willie al., Appellants. al., Appellants. et et Banks; Moore; Elton David Darrell Ray Gowdy, Plaintiffs-

Eddie

Appellees, Fordice; Leroy Black; Steve

Kirk Lucas; Puckett; Eddie A.M.

W. Defendants-Appellees,

Phillips, Groot; Naylor,

Martin Willie

Intervenor Plaintiffs-

Appellants. 99-60609, and 00-60130.

Nos. 00-60129 Appeals, Court of

United States

Fifth Circuit. 20, 2000.

Nov. Winter, Liber- American Civil

Margaret Foundation, National Prison ties Union DC, Washington, Elizabeth Jane Project, (ar- McDuff Robert Bruce (argued), Hicks Shaw, Jackson, MS, Wil- for Robert gued), Groot, Butler, Gaines, Gary Ste- lie Martin Houston, L. and Willie ven Robert White Naylor. Jackson, (argued),

Ronald Reid Welch MS, Plaintiffs-Appellees. (argued), Leonard Vincent Charlton Corrections, At- Mississippi Dept, Staff Parchman, Office, MS, Al- Joseph torney’s MS, Goff, Jackson, for Defendants- len Appellees. BENAVIDES,

Before JONES WALTER, Judges, and District Circuit Judge.* BENAVIDES, Judge: Circuit up made Members of a settlement class jails Mississippi inmates in HIV-positive denial district court’s appeal to intervene and substitute their motions counsel, attorneys as its denial well * siana, designation. sitting by Loui- Judge of the District of District Western Cir.1991) that under (finding substitute counsel. proposed for the fees analyze district court must each banning program also contest an order Appellants HIV-positive from which inmates are ex- substitute coun- proposed contact between safely if it cluded to determine could be regarding prison and class members sel integrated with reasonable accommoda- below, we find conditions. As discussed tion). Mabus, See Moore v. insufficiently the no-contact order (5th Cir.1992). 271-72 unnecessarily broad and supported and it. We also find that the therefore vacate directing In court to appoint the district denying erred in class, counsel for the this admon- Court rulings, we of counsel. Given our other scope questions ished that “the attorneys the issue of fees remand raised and the extensive resources re- court. district pursue quired properly issues this capability case far exceed the and re- History I. Facts and Procedural prisoner, appar- sources of a and ... ently testimony from experts essential comprised are a Plaintiffs below management prison HIV-AIDS in the en- incarcerated in HIV-positive inmates trial require professional vironment will original litiga- Mississippi prisons. skills.” id. See at by HIV- pro tion was commenced se two Mississippi at the State positive inmates remand, Upon appoint- the district court Parchman, Penitentiary Mississippi attorney. to ed Ronald Welch be the class that the Missis- alleged and [Parchman] as class for Welch has served sippi Department [MDOC] of Corrections Collier, ongoing by class action Gates adequate medical care provide failed to state, against the since Mississippi inmates inmates, HIV-positive segregated for 1970s, the as well as several other class housing, in inferior and barred them them in- by subgroups Mississippi actions pro- participating privileges and practitioner. mates. Welch is a solo After general pop- grams prison available to repeated requests by class members and solely ulation on the basis of their medical explaining busy that he was with other Eighth in violation of the Amend- status general prison cases and feared the class’ Equal and Due Process and ment seeking integration to for reaction his the Fourteenth inmates, Protection Clauses began HIV-positive Mr. Welch Amendment. years case in 1995—two working on the appointment as class counsel.1 after his appointment district court denied

The frivo- the district court en- counsel and dismissed the case as In June of reversed, a finding that tered a consent decree which certified lous. This Court 23(b)(1) and of action class under Fed.R.Civ.P. plaintiffs had stated cause (b)(2) in- consisting HIV-positive of all Rehabilitation Act of under Section custody, appointed recognized by mates in MDOC’s 29 U.S.C. as counsel, and settled the Thigpen, 941 F.2d 1495 Welch as class Harris parties per- sympathy. Welch filed a confidential dispute whether Welch lie’s 1. The adequately. Cer- by formed the role of counsel in the letter written to him a class member tain statements exist in the rec- uncontested public court without record of the district representation. For ord that bear on Welch’s making any effort to redact it or file it letter, explains example, in one Welch to class camera; similarly, circulated to class he what he best members that he will do thinks reports containing mem- members other class independent mem- for the class class unredacted medical files. After certain bers' complaints bers' and wishes. In a statement began complain his class members to about press, Welch describes class members representation, role in a Welch described his replaced) (presumably wishing those him "umpire” and letter to the as that of an class "manipulative,” and states that he has "no continuing complaints would warned sympathy” they used for them because had help that he would them. lessen the likelihood pub- HIV-positive garner the their status to intervene, by ex- arguing that Welch addressed The settlement claims. class did not plaintiffs in broad terms ade- inmates’ issues tension the named some of “medically appropriate requiring their interests. On (e.g. quately represent substantial diets”) require did not 5, 1999, but intervenors proposed March plain- original pro se any of the change on injunction alleg- preliminary moved for a concerns, integration into including tiffs’ care under MDOC ing that their medical available to non- privileges programs their as to lives. was so deficient endanger Fed. No formal prisoners. HIV-positive by counsel prepared were Both motions 23(e) required was Rule notice R.Civ.P. Project Prisons from the ACLU National class. Welch provided the court (NPP), signatures of supported by the agreement proposed copies of mailed 140 class members.2 Welch 110 of the members, of whom wrote one eight in- preliminary joined in the motion objecting to court to the district a letter prep- contribute to its junction, but did not agreement. proposed a pre- court entered aration. The district the settle- court endorsed The district (not liminary injunction identical agree- proposed days five after the ment upon finding that MDOC’s doc- requested) day prior one sent ment had been out to the deliberately indifferent tors were The" dis- objection letter’s arrival. health, they that the care class members’ benefit of did not have the trict court insufficient, and providing were objections to the settle- members’ prisoners’ significantly lowered chances did it ruling nor ment at the time of Proposed virus. surviving with the HIV provided later. objections respond to the attorneys’ fees. intervenors moved retained compliance with the case to monitor over intervenors proposed In December intervention, terms. the settlement renewed their motion for two class moved for substitution members class members years, the next -four Over for substitution of of counsel. The motion several of inaction on protested Welch’s by accompanied petition a counsel was serious and complaints, the most their containing signatures the of 167 class related to the new of which meritorious members, one hundred representing per- therapies proving highly which were HIV at HIV-positive cent of the inmates Parch- in but which were patients successful some January class man.3 In the district court to inmates. Certain unavailable National forbidding contacted the ACLU temporary members issued a order NPP Project NPP at- for Prisons assistance. lawyers contacting class members. investiga- torneys conducted a preliminary February, In court denied the the district verify legitimacy of the claims to the tion intervention and motions for substitution them, presented signed to formal re- counsel, and its order into a converted individual agreements with several tainer lawyers contacting permanent bar on NPP members. class anything regarding class members within “jurisdiction” any- the class counsel’s February In several class mem- —i.e. prison thing relating to the treatment incarcerated at Parchman moved bers class plaintiff appears precise 3. The total number of members size of the class The All petition at time of the is not known. the significantly over the course of have varied at the the class housed HIV- members action, the record nor class and neither the Parchman, positive segregated unit at Unit provide for parties numbers the class the firm 28, signed petition. petition was not The particular points in time. The at certain size signed by any class members housed else- derives from 140-member class noted here where, facility. e.g. in women's Accord- order, we assume to district court's which provided by ing to estimates the class size representation available of class best counsel, eighty percent approximately class period question. in size petition represented by the the total class is signatures. findings factual other than HIV-positive inmates. that seven of conditions mo- appellants’ district court also denied 167 inmates returned letters from Welch attorneys Proposed fees. interve- unopened (during period tion for before the and the unsuccessful movants nors district court ruled on the substitution mo- tion) attorneys fees attorneys, and that NPP like Welch himself, appeal. managed “small favors” for the class members. Analysis II. The class members who wish to remain A. order No-contact in attorneys contact with NPP seek to right exercise their as individuals to con principle It is a well-established sult with the in counsel of their choice on enjoy that district courts wide latitude great complex litigation general in and matters of concern to them. See managing See, in particular. e.g., Catastrophe Property class actions Mul Texas Ins. Assoc. v. Casino, LLC, Morales, len v. Treasure Chest 975 F.2d 1180-81 Cir. (6th Cir.1999). 1992) However, 620, 623 a (finding right fundamental to re actions); administration the district court tain in civil counsel of choice see Johnston, to avoid impinging must seek also Mitchell v. (5th Cir.1983) (the in rights,

members’ constitutional this case 351 district court is not association, speech, those access judgment free to “substitute its for that of Any infringement counsel of their choice. in litigant the choice or number of strictly rights only of such must be limited litigant may counsel that feel is re necessary to that which is determined af quired properly represent his inter findings ter sufficient have been estab ests”) (citation omitted). The district lished the record. impinge rights court is not free to on those here; weightier findings without than those The no-contact order issue here findings in the record below do not principles contradicts the enunciated necessity establish the for the order is Bernard, Oil Co. U.S. Gulf Moreover, limiting sued. order must be (1981). 2193, 68 L.Ed.2d 693 In S.Ct. narrowly prior drawn to minimize re overturning a in a no-contact issued association, and the speech, straints on action, Supreme Court noted that rights inmates’ to counsel. The no-contact on a such orders must be based clear satisfy in these order this case does not “specific findings record and that reflect a requirements and we vacate it. therefore weighing of for a limitation and the need potential rights interference with the B. Denial intervention/substitution 101, of parties.” See id. at 101 S.Ct. counsel resulting 2193. The order from such a carefully drawn in process should be order district Appellants argue that the speech possible. to limit as little as id. See denying court erred in the motions for 102, 101 at S.Ct. 2193.4 and intervention be substitution of counsel eighty percent in all cause at of the class The order this case bars contact least attorneys supported NPP mem- members substitution between class subject adequately performing his regarding bers matter of the Welch was not action, conditions, Denials of motions for substitution prison class i.e. treat- duties. ment, are reviewed for abuse of dis and healthcare. The order is not counsel Pettway v. American Cast narrowly justified by any drawn nor is it cretion. See note, however, Supreme that the order created seri- 4. Because the Court found that the did 103-04, expression, at ous restraints on see id. order in issue was abuse of discretion and 2193, presumably comport requirements 101 S.Ct. and therefore did not with the chal- could the basis of a constitutional Rule it did not decide the issue of First be orders; lenge prove necessary. requirements it should one Amendment for such 228 (5th urge the rare sub-class’ case prosecute the Co., F.2d Pipe

Iron Cir.1978). motion for District courts appellants’ remedy of substitution. We treat as of enjoy one for intervention latitude de- normally intervention as substantial 24(a). The deni- under Fed.R.Civ.P. of counsel. right ciding motions for substitution de novo. See is reviewed actions, al of that motion particu- long-standing In Houston, City Edwards v. lar, administrative difficulties significant (en banc). Cir.1996) 999-1000 frequent competing or could arise from finding that the justify a of this case facts intervention, motions for substitution error reversible committed encourage the way in no wish to and we denying the mo- under either standard unjustified such motions. Mere dis- use of intervention.5 for substitution tions and/or strategy or class counsel’s satisfaction with the denial of the reverse therefore We sup- adequately does not obtained results for substitution.6 motion of counsel. a motion for substitution port Nonetheless, unique circumstances of support substitu main factors Two this case do warrant substitution. First, case. in this tion of counsel class indicate a clear sentiments of the urge that the class Appellees first substitute, i.e. the a known

preference for for intervention and members’ motions Second, impor more attorneys. NPP untimely. of counsel were and the con tantly, Welch’s nonfeasance However, during made such motions ability adequately upon straints his though reviewa- challenges even the others would Mississippi this 5. The state of by interlocutory appeal”); independently the district ble jurisdiction to review Court's Al., Wright petitioner’s motion to substi- 16 Charles A. court’s denial of Et Federal Practice (2d ed.1996). pur- appealable § final order 3921.1 We tute as an and Procedure Court, recognize how- U.S.C. 1291. This that this discretion should be exer- suant to 28 ever, unique "only of whether the circum- need not reach issue in rare and cised Prairie, petitioner’s post-judgment motion to substi- City stances.” Gros v. Grand appealable. independently (5th Cir.2000). tute counsel is dispute court's case, There no that the district is already judgment this has been In properly this Court. no-contact order is before a consent decree. entered in the form of February pro- court’s 1 order In the district currently pending Nothing is before dis- hibiting with in- the ACLU from contact court, continuing jurisdiction trict save within the mate on matters pos- procedural over the decree. Given the counsel, magistrate also denied the case, appropriate ture of this we feel renewed motions for intervention substi- peti- and review the exercise our discretion peti- February tution of counsel. On Absent tioner’s motion to substitute counsel. timely appeal filed a notice of of all tioners discretion, petitioners our the exercise of rulings February in the 1 order. deprived any meaningful opportuni- will be ty have their motion reviewed. interlocutory jurisdic Where this Court has overlook, agree We do not nor do we with injunctive pursuant tion over an by, that we should be bound dissent discretion, 1292(a)(1), may, in its consid holding Arney Finney, Tenth v. Circuit's aspects Mercury er all Motor of that order. (10th Cir.1992). By exercising F.2d 418 967 Brinke, Express, F.2d 1091 Inc. v. 475 pendent appellate jurisdiction, we do not our (5th Cir.1973); Magnolia Transport v. Marine is, Arney, decided in address the issue Laplace Towing Corp., 1580 Appeals independent (5th Cir.1992) (”[A]n whether a Court of has granting or order refus jurisdiction over a motion to substitute coun- ing injunction brings appellate before ...”); sel. court the entire order Gould v. Control (5th Corp., Laser 650 F.2d 621 n. appellants’ description, According to Cir.1981) ("[I]n reviewing interlocutory in and the motion for motion for substitution junctions may nonap- we look to otherwise sought prac- order.”); to attain the same intervention pealable aspects Myers of the result, by representation NPP attor- tical i.e. Corp., Paper Gilman Cir.1977) ("It neys in the class action. Because we reverse appellate is well settled that an the motion for the district court's denial of an interlocu court that has over substitution, may intervention becomes unneces- tory containing injunctive relief sary. aspects that order reach and decide other care, administration of a class action members’ medical ongoing even after this by a court are not per district specifically necessity settlement Court noted the Airlines, untimely. Inc. v. se See United previous appeal, such review on a corrobo- McDonald, 385, 394-96, 432 U.S. 97 S.Ct. rates the limits of Welch’s resources and (1977) (putative 53 L.Ed.2d 423 class ability litigate HIV-positive prison- post-judgment motion to inter- members’ ers’ case. filed). timely The district court vene was Appellants also argue that Welch reject untimely, did not the motions as nor has a conflict of interest inherent his do we. representation dual HIV-positive Pettway, In this Court reversed a denial prisoners general prison and of the popula of a motion for substitution of counsel tion in segments Gates because of that seventy percent sup- where of the class population object might HIV-posi it, noting may ported class not prisoners gaining tive access to work train subjective judgment his own substitute ing programs and other from they which major questions that of the class on currently are disputes excluded. Welch litigation. Pettway, 576 F.2d at 1177. See conflict, the existence of such a and the case, eighty percent In this at least of the agreed him, with ruling that supported substitution. Welch’s own apparent there was no conflict of interest. explain words in letters to the class his allegation of a conflict of interest is subjective deliberate intent to use his own self-evident; necessary there no objectives judgment regarding ap- objectives inherent conflict between the propriate for the relief class even as HIV-positive subclass and that of the against majority of the class members’ However, general population. Welch ex Thus, explicit wishes. Welch’s behavior is plained in responding to the class to com type recognized Pettway of a that we plaints about his inaction that he refrained justifying of counsel. taking aggressive action their de mishandling Welch’s nonfeasance and segregation in part claims because he aspects certain of the case also warrant his population object feared general would First, substitution here. Welch is a solo to it. We therefore have a direct admis practitioner with limited resources. Such by advocacy sion counsel that his was in justify a fact does not on its own substitu- fact at least at one time and as impaired, practition- tion of counsel—numerous solo to one set of issues. That admission eras ability ers have demonstrated their that would otherwise exist es doubt prosecuting very large zeal in even regarding conflict of interest difficulties case, However, actions. in this Welch’s by faced counsel. already were resources stretched his Evidence of nonfeasance and mishan- representation of the Gates class as well as dling aspects of certain of the case and the numerous other subclasses. More impor- lawyer-client relationship also exists. The tantly, Welch’s own admissions demon- give record indicates that Welch failed to subjective his strate belief he was adequate opportunity the class notice and actively prosecute HIV-posi- unable prisoners’ object procured tive claims.7 failure to to the settlement he His se- expert cure outside review subclass them in 1995.8 See Kincade General posed agreement In with the court. letters to the class and to the ACLU was filed assistance, soliciting their Welch described requested the district court Welch also that prac- the limitations of his resources as a solo appropriate direct him as to notice under regular titioner with no assistance and with- 23(e), to do. The Rule which declined expensive experts. out the resources to hire accepted proposed agree- the being days of filed and before ment within copies proposed agree- 8. Welch mailed of the any objections members from class reached representatives ment and certain to the class the court. pro- class members at the same time as the 230 injunction (5th preliminary for the motion Co., 507 Rubber Tire & joined by and attorneys by NPP object prepared (notice to Cir.1981) opportunity and side, MDOC’s 23(b)(2) him, to take appeared Welch for Rule required

to settlement style inter- conducting cross-examination a classes). expert witness. plaintiffs’ rogation of of with members relationship Welch’s an both attor- undermines Such behavior time, partic over deteriorated the subclass and the his clients credibility with ney’s intervention motions for ularly after a successful motion. of chances example, filed. For were and substitution communica the denial of substitu- that argues confidential Welch disclosed Welch public in because member of discretion not an abuse a class tion was tions was argues adequate representa- that he presumption Welch While record. rele City communications v. Hous- in Edwards to disclose tion entitled identified him, Cir.1996) a motion against ton, was a claim 1005 to vant however, a classical note, not constitute that the does substitution not overcome. We would a attorney as against showing presumption “claim” that burden of addition, ap “minimal,” In Welch suit. malpractice overcome is should be adequacy the let no effort to redact made overcome parently id., noted above do and the facts review. See in camera it to or limit regards ter Welch’s as presumption a such PROFESSIONAL OF RULES MISS. particular subclass. of this representation 1.6(a) (1999) and Cmt. Rule CONDUCT adequa- regarding arguments Welch’s (where to defend authorized is disclosure essentially demon- cy representation of his wrongdoing, or assertion a claim against cooperative a rather belief that strate his every practi effort make lawyer “the must advocacy style prefer- than combative unnecessary disclosure to cable avoid way disagree inWe no able in this case. representation, to a relating information cooperative a proposition that with the having the need to to those limit disclosure in circum- more some style accomplish can orders or it, protective obtain know aggres- overly than an hostile stances minimizing the arrangements make other actions, However, Welch’s sive one.9 State, disclosure”); Flowers situation, risk of in his inherent constraints may (Miss.1992)(lawyer not So.2d relationship of his the deteriorated state without communications reveal confidential his substitution with his clients necessitate consent); Stegall, 580 Singleton client’s as counsel. (Miss.1991) (lawyer owes So.2d client). attorneys’ Motion C. confidentiality to her duty of fees even argue though Appellants in the the subclass Welch also described motions for they their were unsuccessful being “manipulative.” press as national intervention, they are saying that he quoted as He further attorneys’ fees be nonetheless entitled they sympathy for them and had no prelim a securing they sym- cause succeeded garner status to their used HIV injunction that MDOC inary requires hearing During public. of the pathy case; help argues he that after that with en- governmental have 9. The defendants keep attorneys him point did ade- NPP preference NPP attor- Welch in to the dorsed investigation on their be- relationship quately good working informed neys, noting the class), does not our decision rest a half of the with Such has MDOC. Welch established contrasting styles between ongoing on the very difference relationship valuable can relationship among this, of the or an assessment though it can also litigation such Rather, objec- our evaluation adversary counsel. rela- the lines of the sometimes blur inescapable this case leads cross- tive facts in tionship, Welch conducted as.when the merits of his that whatever plaintiffs' conclusion style interrogation of examination efforts, represent ability to the sub- relationship Welch’s expert. we note While sufficiently deteriorated has attorneys class in soured issue and NPP between Welch necessary. (Welch that now originally their such solicited over time provides HIV-positive attorneys they care it NPP knew when advanced change the that Appellees preliminary injunction contend because the motion for inmates. never made counsel of the ACLU was they there was some risk that would not record, attorneys’ it not receive fees should become the counsel of plain- record for the provided even if it all of the labor tiff class. the successful motion for expertise behind The denying attorneys only order fees injunction. preliminary District courts states that it does so because the NPP in determining have broad discretion attorneys never became counsel of record fees, attorneys’ to award and the

whether recognized party to action. denial of fees is reviewed abuse of that may While there be other reasons that Gibbs, 210 F.3d discretion. See Gibbs court, prompt would the district in its dis- (5th Cir.2000). 491, cretion, deny attorneys, fees to the NPP Appellees argue, under Morales v. Tur it holding did not have the benefit of our man, Cir.1987), that 820 F.2d on the issue be- substitution/intervention only parties litigation may receive fore it at the time it applica- denied the fee attorneys’ Rights fees under the Civil At tion. We vacate deny- therefore the order torney’s Fee Awards Act of 1976 and ing attorneys fees remand the issue of Buick, v. Powell 1983. See also Cook fees for in light reconsideration of our (5th Cir.1998) (un Inc., holdings here and the entire record of the in a action successful intervenors did litigation.10 party litigants not become in the suit and appeal anything could not other therefore III. Conclusion than the denial of their motion to inter enjoy While district courts substantial

vene). regarding Our decision motions in managing litigation, latitude class action may for substitution and intervention af trial denying court this case erred in viability argument, though fect the the motions for substitution and interven- it given prior rulings, remains true that promulgating tion and in its no-contact today, which we set aside the district court Accordingly, order. we VACATE the no- justified denying at the time in attor order, contact the denial of the REVERSE neys fees to the unsuccessful movants. motion for substitution of the NPP attor- issue, Turning ap- to the merits of the neys they with direction that be substitut- pellants argue prelimi- that because the attorney represent ed for Welch to nary injunction primary achieved their ob- inmates, positive subclass of HIV and VA- jectives in if making the motion even it did CATE and REMAND the issue of attor- precise not reflect detail the relief neys fees to the district court for further sought they should be to fees entitled consideration. Tasby ordinary practice. matter of See (5th Cir.1981) Estes, (holding 651 F.2d 287 JONES, EDITH Judge, H. Circuit attorneys who were counsel of dissenting: litigation record but who were re- by parties performed tained and who bene- my respect colleagues, With due this non-duplicative ficial and work in the liti- Court does not have to review fees). attorneys’ gation were entitled to interlocutory denying substitu- simply While it have within tion because was en- would been contemporaneously with the district court’s discretion to award fees to tered no-con- appellants, necessarily it is not therefore tact order. We should be bound decision, deny following an abuse of discretion to them. Tenth The Circuit’s Su- request appellants’ supplement nally, appellees' for mandamus is motion to appellants’ record is denied. The motion to denied. expedite decision is dismissed as moot. Fi- 232 they (“PAJ”), what that is but jur- jurisdiction it lacked that precedent,

preme Court pendent theory of exercising. The majori- are The point. on case in a isdiction appellate an ill- is that an jurisdiction viewed as only appellate be can ty’s approach appealable doctrine dubious review of may, of the on court exercise conceived order, jurisdic jurisdiction. interlocutory assume appellate pendent of also or non-appealable over an otherwise tion it lacked held Tenth Circuit The County v. Swint Chambers der. See of a termination review jurisdiction 35, 2, Comm., n. 115 S.Ct. 44 514 U.S. strikingly similar in case a motion counsel (1995) (citing as an 1203, 60 131 L.Ed.2d F.2d Finney, 967 Arney v. one. In to this the Ninth a where of PAJ case example (10th Cir.1992), brought prisoners 418, 422 claim a nonappealable Circuit reviewed prison condi challenging action a class injunction, see preliminary along with a appointed tions. Class Airlines, v. Inc. American a consent decree. entered TransWorld court district (9th Inc., 676 dissatisfied 913 F.2d Exchange, became Coupon prisoners some When 1025, NCAA, modifications Cir.1990)); of and 134 F.3d v. the enforcement Law with Cir.1998) decree, they sought to inter (10th analysis to (using PAJ the consent 1028 of majority A counsel. with an replace are reviewable vene what claims decide motion, supported Dept. members the class v. Ohio injunction); Chambers Ar it. See (6th court denied 793, Svcs., but the district 797 Cir. Human at 420-21. F.2d ney, 967 1998) (same); Campbell, 138 California Cir.1998) (same). (9th F.3d 778 though held even court appeals The denying interven the order could review unlikely in the event that I believe that members, have it did not of class tion continues to jurisdiction pendent appellate to ter the motion consider jurisdiction to all, of sub- interlocutory denial at exist Supreme applied It minate counsel. may appealed not be of counsel stitution Tire & Rub in Firestone decision Court’s order. the coat-tails of the no-contact 101 Risjord, 449 U.S. ber Co. v. (1981), holding 669, 66 L.Ed.2d 571 S.Ct. Supreme Court cast The considerable denying disqualification that an order case, In that in Swint. doubt on PAJ also Shak appealable. See counsel is not it had dis- claimed that Eleventh Circuit County, Org. Cook man Democratic issues nonappealable cretion to review Cir.1990) (under 459 Supreme The collateral order. with a Firestone, denying substitution an order reversed, Congress observing Court appealable). counsel is interlocutory carefully scope limited substantively identical to procedures specific This case is review established action suit. a Amey. prisoner It is courts can re- appeals when to determine decree. The existing consent There is an at 46- interlocutory order. See id. view an identically with situated intervenors are questioned It whether S.Ct. majority A class. the rest of the circumvent con- courts can appeals federal to substitute petition have a signed by expanding appellate gressional intent a has denied counsel. The 46-47, at through PAJ. See id. review counsel. substitute motion intervene not conclusively The Court did S.Ct. 1203. Amey should jurisdictional ruling The may proper or when it decide “whether control this case. jurisdiction appeals, with for a court review, conjunctively, ruling, to over one Amey and as- majority overlooks It rulings.” did [nonappealable] related because the we have serts that abused dis- Eleventh hold that Circuit district court enforced appeal- PAJ where applying cretion order a no-contact counsel order with nonappealable able order and the ACLU, ma- non-party. The against inextricably intertwined. were not appellate pendent avoids the term jority Swint, permanent injunction). In the aftermath courts have on a See also Judge been hesitant to exercise PAJ. Chief Svcs., Chambers v. Dept. Ohio Human “hangs aby (6th Posner has observed PAJ 793, Cir.1998) (same). 145 F.3d 797 Rimsat, Ltd., thread.” See In re 98 F.3d the Supreme “Given Court’s criticism of (7th Cir.1996) 956, (avoiding 964 PAJ pendent jurisdiction, appellate the Court’s finding appellate jurisdiction through an- ‘inextricably intertwined’ exception should doctrine). other This has Court described narrowly construed.” v. California PAJ after Swint as “uncharted terrain.” (9th Cir.1998) Campbell, 138 F.3d 778 Rocha, (5th v. See Cantu 77 F.3d 805 (holding easily it could address the Cir.1996) (finding compelling no reason to appealable claim discussing without wilderness). navigate the We exercise it claim). nonappealable “only unique rare and circumstances.” Here, the elements of the constitutional Prairie, City Gros v. Grand 209 F.3d claim challenging the no-contact order are (5th Cir.2000) (finding 436 unique no distinct from the elements of the substitu- circumstances). By looking only pre- First, tion of counsel challenge. different authority justify jurisdiction, Swint parties are involved: ACLU alone ag- majority fails recognize appel- grieved by order, the no-contact while the can longer freely late courts no consider denial of only substitution order bears on aspects injunctive all of an order. Second, prisoners. the constitutionali- that, best, at Swint establishes this ty of the no-contact entirely order is unre- might Court be able to review the order lated to the attorney’s merits of the class denying substitution of counsel if it is inex- performance. easily This Court could lift tricably with intertwined the no-contact the no-contact order leaving while the sub- order, a common operative but basis of Thus, stitution of counsel order intact. fact not alone satisfy does that standard. orders are inextricably intertwined and suggested This Court has that if an ap- PAJ, if it vitality, even has is inappropri- peals appealable court can resolve orders ate.1 orders, separately nonappealable from the inextricably the orders are not inter- majority’s premise unarticulated Gros, twined. (finding See 209 F.3d at 437 assuming seems to be that ap- qualified immunity that a claim was not pellate requirements may have to be re- inextricably intertwined with non-immuni- in a post-judgment laxed context. In oth- ty claims because the “unique claims had words, denying er how could facts.”). elements relevant substitution of institutional liti- gation governed by a consent decree ever agree

Other circuits that claims are in- appeal? final for extricably if become The Tenth Cir- only pendent intertwined “the with, cuit in, prison claim affords one answer. In a con- is coterminous or subsumed case, granted ditions interlocutory the claim before the court on mandamus relief NCAA, requiring the appeal.” Law v. district court to consider a (10th Cir.1998) (finding pro prisoner’s challenge applica- claims inex- se tricably intertwined in a PAJ claim based tion of the decree that class counsel had interest, collusion, majority might suggested adversity 1. The have that PAJ show must denying part existing party would exist because the orders inter- nonfeasance on the representatives presumption adequate new vention of and the to overcome the [of representation]”). Appellate jurisdiction denial of counsel substitution are “inter- ex- permissive twined.’' This conclusion would fail for two the denial ists over intervention First, prisoners only per- only reasons. seek if district court abused discretion. (F.R.A.P.24(b)), denying missive intervention since See id. at relief. Sec- such ond, representatives ap- their interests are to but cumula- not adverse the current class are substitution; present representatives. pealing denying tive of the See the order tack- Houston, (5th City ing Edwards v. 78 F.3d 983 that order onto the intervention order for Cir.1996) ("The applicant meaningless for intervention is a exercise. PAJ Guthrie, McNeil See review. refused America, Cir.1991). STATES Mandamus UNITED Plaintiff-Appellee, or- where an be available may thus relief appeal. reviewable otherwise is not der this over jurisdiction' have If we did Defendant-Appellant. JONES, Napoleon to put to subscribe hard I would appeal, factfindings on appellate majority’s the America, of States United counsel, performance Welch’s Plaintiff-Appellee, judge’s magistrate the to hold much less Each discretion.2 abuse decision concern- majority finds “facts” Daniel, Defendant- Gabriel Eduardo and con- nonfeasance alleged ing Welch’s Appellant. contradicted vigorously was flicts and evidence or Welch’s declarations 99-11250, 99-11259. Nos. in a context responses by his placed Appeals, Court United States prison- the dissident him from exonerated Circuit. Fifth implic- court The district complaints.3 ers’ events, yet version Welch’s credited itly 20, 2000. Nov. Welch without majority discredits 16, 2001.* Rehearing have Denied Jan. I would clear error. demonstrating credibility court’s trial deferred to have least, majority should At

calls. hearing, light a for

remanded ruling, permit court trial

perfunctory before his accusers

toWelch confront the unusual majority required

panel remedy of counsel

reputation-damaging

substitution. jurisdictional error majority’s

The the district court’s to overturn

their rush carry unfortunate

discretionary decision prison condi- many ongoing

implications encourage will This decision

tions cases. second-guess prisoner groups

dissident represen- separate and seek

class counsel

tation, harassing class effectively on resources wasting precious public applied stan-

tangential Properly issues. would elimi- of appellate

dards respectfully I dissent. problem.

nate this revealing Welch majority part faults up appeal as The brought 2. When his letters court some of motions to substi- judgment, denials final during dispute over representatives class substitution. Welch are reviewed abuse tute class counsel out, however, points Iron Pettway v. American Cast discretion. themselves representatives had Cir.1978). Co., Pipe by delivering same confidentiality this waived ambiguous needlessly majority opinion the ACLU. correspondence to point. on this * grant rehearing. Judge would Emilio Garza

Case Details

Case Name: Gates v. Cook

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Nov 21, 2000

Citation: 234 F.3d 221

Docket Number: 99-60609, 00-60129 and 00-60130

Court Abbreviation: 5th Cir.