Gates v. Cook

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________________

No. 99-60609
___________________

NAZARETH GATES, individually and on behalf of all other similarly
situated; WILLIE LEE HOLMS, individually and on behalf of all
others similarly situated; HAL ZACHARY, individually and on
behalf of all others similarly situated; MATHEW WINTERS,
individually and on behalf of all others similarly situated,

Plaintiffs - Appellees,

v.

THOMAS D COOK, Superintendent of the Mississippi State
Penitentiary, also known as Parchman Prison; J D DEMOVILLE,
Member of the Mississippi State Penitentiary Board; TURNER ARANT,
Member of the Mississippi State Penitentiary Board; SEBE DALE,
Member of the Mississippi State Penitentiary Board; ROBERT D
ROBINSON, Member of the Mississippi State Penitentiary Board; H L
ROBERTS, Member of the Mississippi State Penitentiary Board; JOHN
BELL WILLIAMS, Governor of the State of Mississippi, and their
Successors,

Defendants - Appellees

v.

WILLIE X STEVENSON; ET AL,

Movants

ROBERT SHAW,

Movant - Appellant
and

WILLIE GAINES,

Appellant

--------------------------------------------------

DAVID DARRELL MOORE; ELTON BANKS; EDDIE RAY GOWDY,
 Plaintiffs - Appellees

v.

KIRK FORDICE; LEROY BLACK; STEVE W PUCKETT; EDDIE LUCAS; A M
PHILLIPS,

Defendants - Appellees
and

ALEXIS D BELAFONTE; ET AL,

Intervenor-Plaintiffs

MARTIN GROOT,

Intervenor-Plaintiff-Appellant

_________________________

Cons/w No. 00-60129
_________________________

NAZARETH GATES, individually and on behalf of all other similarly
situated; WILLIE LEE HOLMS, individually and on behalf of all
others similarly situated; HAL ZACHARY, individually and on
behalf of all others similarly situated; MATHEW WINTERS,
individually and on behalf of all others similarly situated,

Plaintiffs - Appellees,

v.

THOMAS D COOK, Superintendent of the Mississippi State
Penitentiary, also known as Parchman Prison; J D DEMOVILLE,
Member of the Mississippi State Penitentiary Board; TURNER ARANT,
Member of the Mississippi State Penitentiary Board; SEBE DALE,
Member of the Mississippi State Penitentiary Board; ROBERT D
ROBINSON, Member of the Mississippi State Penitentiary Board; H L
ROBERTS, Member of the Mississippi State Penitentiary Board; JOHN
BELL WILLIAMS, Governor of the State of Mississippi, and their
Successors,

Defendants - Appellees

v.

WILLIE X STEVENSON; ET AL,

2
 Movants

WILLIE GAINES; GARY BUTLER; STEVEN HOUSTON; ROBERT SHAW; ROBERT L
WHITE; ET AL,

Movants - Appellants

and

MARTIN GROOT; WILLIE NAYLOR; ET AL,

Appellants

-------------------------------------------------

DAVID DARRELL MOORE; ELTON BANKS; EDDIE RAY GOWDY,

Plaintiffs - Appellees

v.

KIRK FORDICE; LEROY BLACK; STEVE W PUCKETT; EDDIE LUCAS; A M
PHILLIPS,

Defendants - Appellees

and

ALEXIS D BELAFONTE; ET AL,

Intervenors - Plaintiffs

MARTIN GROOT; WILLIE NAYLOR,

Intervenors - Plaintiffs - Appellants

______________________

Cons/w No. 00-60130
_______________________

NAZARETH GATES, individually and on behalf of all other similarly
situated; WILLIE LEE HOLMS, individually and on behalf of all
others similarly situated; HAL ZACHARY, individually and on
behalf of all others similarly situated; MATHEW WINTERS,
individually and on behalf of all others similarly situated,

Plaintiffs - Appellees,

3
 v.

THOMAS D COOK, Superintendent of the Mississippi State
Penitentiary, also known as Parchman Prison; J D DEMOVILLE,
Member of the Mississippi State Penitentiary Board; TURNER ARANT,
Member of the Mississippi State Penitentiary Board; SEBE DALE,
Member of the Mississippi State Penitentiary Board; ROBERT D
ROBINSON, Member of the Mississippi State Penitentiary Board; H L
ROBERTS, Member of the Mississippi State Penitentiary Board; JOHN
BELL WILLIAMS, Governor of the State of Mississippi, and their
Successors,

Defendants - Appellees

v.

WILLIE X STEVENSON; ET AL,

Movants

WILLIE GAINES; GARY BUTLER; STEVEN HOUSTON; ROBERT SHAW; ROBERT L
WHITE; ET AL,

Movants - Appellants

and

MARTIN GROOT; WILLIE NAYLOR; ET AL,

Appellants

---------------------------------------------------

DAVID DARRELL MOORE; ELTON BANKS; EDDIE RAY GOWDY,

Plaintiffs - Appellees

v.

KIRK FORDICE; LEROY BLACK; STEVE W PUCKETT; EDDIE LUCAS; A M
PHILLIPS,

Defendants - Appellees

MARTIN GROOT; WILLIE NAYLOR,

Intervenor Plaintiffs - Appellants

4
 ---------------------------------
Appeals from the United States District Court
for the Northern District of Mississippi
---------------------------------
November 20, 2000

Before JONES and BENAVIDES, Circuit Judges, and WALTER, District
Judge.*

BENAVIDES, Circuit Judge:

Members of a settlement class made up of HIV-positive

inmates in Mississippi jails appeal from the district court’s

denial of their motions to intervene and substitute counsel, as

well as its denial of attorneys fees for the proposed substitute

counsel. Appellants also contest an order banning contact

between proposed substitute counsel and class members regarding

prison conditions. As discussed below, we find the no-contact

order to be insufficiently supported and unnecessarily broad and

therefore vacate it. We also find that the district court erred

in denying substitution of counsel. Given our other rulings, we

remand the issue of attorneys fees to the district court.

I. Facts and Procedural History

Plaintiffs below are a class comprised of HIV-positive

inmates incarcerated in Mississippi prisons. The original

litigation was commenced pro se by two HIV-positive inmates at

the Mississippi State Penitentiary in Parchman, Mississippi

[Parchman] and alleged that the Mississippi Department of

*
District Judge of the Western District of Louisiana, sitting
by designation.

5
Corrections [MDOC] failed to provide adequate medical care for

HIV-positive inmates, segregated them in inferior housing, and

barred them from participating in privileges and programs

available to the general prison population solely on the basis of

their medical status in violation of the Eighth Amendment and the

Due Process and Equal Protection Clauses of the Fourteenth

Amendment.

The district court denied appointment of counsel and

dismissed the case as frivolous. This Court reversed, finding

that the plaintiffs had stated a cause of action under Section

504 , Rehabilitation Act of 1973, 29 U.S.C. § 794, as recognized

by Harris v. Thigpen, 941 F.2d 1495 (11th Cir. 1991) (finding

that under § 504, the district court must analyze each program

from which HIV-positive inmates are excluded to determine if it

could be safely integrated with reasonable accommodation). See

Moore v. Mabus, 976 F.2d 268, 271-72 (5th Cir. 1992).

In directing the district court to appoint counsel for the

class, this Court admonished that “the scope of the questions

raised and the extensive resources required to pursue properly

the issues in this case far exceed the capability and resources

of a prisoner, and . . . the apparently essential testimony from

experts on HIV-AIDS management in the prison environment will

require professional trial skills.” See id. at 272.

Upon remand, the district court appointed Ronald Welch to be

6
the class attorney. Welch has served as class counsel for Gates

v. Collier, an ongoing class action by Mississippi inmates

against the state, since the 1970s, as well as several other

class actions by subgroups of Mississippi inmates. Welch is a

solo practitioner. After repeated requests by class members and

explaining that he was busy with other cases and feared the

general prison class’ reaction to his seeking integration for

HIV-positive inmates, Mr. Welch began working on the case in 1995

– two years after his appointment as class counsel.1

In June of 1995, the district court entered a consent decree

which certified a class under Fed.R.Civ.P. 23(b)(1) and (b)(2)

consisting of all HIV-positive inmates in MDOC’s custody,

appointed Welch as class counsel, and settled the class claims.

The settlement addressed some of the inmates’ issues in broad

1
The parties dispute whether Welch performed the role of
counsel adequately. Certain uncontested statements exist in the
record that bear on Welch’s representation. For example, in one
letter, Welch explains to class members that he will do what he
thinks best for the class independent of the class members’
complaints and wishes. In a statement to the press, Welch
describes class members (presumably those wishing him replaced) as
“manipulative,” and states that he has “no sympathy” for them
because they had used their HIV-positive status to garner the
public’s sympathy. Welch filed a confidential letter written to
him by a class member in the public record of the district court
without making any effort to redact it or file it in camera;
similarly, he circulated to class members reports containing other
class members’ unredacted medical files. After certain class
members began to complain about his representation, Welch described
his role in a letter to the class as that of an “umpire” and warned
that continuing complaints would lessen the likelihood that he
would help them.

7
terms (e.g. requiring “medically appropriate diets”) but did not

require substantial change on any of the original pro se

plaintiffs’ concerns, including integration into programs and

privileges available to non-HIV-positive prisoners. No formal

Fed.R.Civ.P. Rule 23(e) notice was required by the court or

provided to the class. Welch mailed copies of the proposed

agreement to eight class members, one of whom wrote a letter to

the district court objecting to the proposed agreement.

The district court endorsed the settlement five days after

the proposed agreement had been sent out and one day prior to the

objection letter’s arrival. The district court did not have the

benefit of any class members’ objections to the settlement at the

time of its ruling nor did it respond to the objections provided

later. The district court retained jurisdiction over the case to

monitor compliance with the settlement terms.

Over the next four years, class members protested Welch’s

inaction on several of their complaints, the most serious and

meritorious of which related to the new HIV therapies which were

proving highly successful in some patients but which were

unavailable to inmates. Certain class members contacted the ACLU

National Prisons Project for assistance. NPP attorneys conducted

a preliminary investigation to verify the legitimacy of the

claims presented to them, and signed formal retainer agreements

with several individual class members.

In February 1999, several class members incarcerated at

8
Parchman moved to intervene, arguing that Welch and by extension

the named plaintiffs did not adequately represent their

interests. On March 5, 1999, the proposed intervenors moved for

a preliminary injunction alleging that their medical care under

MDOC was so deficient as to endanger their lives. Both motions

were prepared by counsel from the ACLU National Prisons Project

(NPP), and supported by the signatures of 110 of the 140 class

members.2 Welch joined in the motion for preliminary injunction,

but did not contribute to its preparation. The district court

entered a preliminary injunction (not identical to that

requested) upon finding that MDOC’s doctors were deliberately

indifferent to the class members’ health, that the care they were

providing was insufficient, and that it significantly lowered

prisoners’ chances of surviving with the HIV virus. Proposed

intervenors moved for attorneys’ fees.

In December 1999, proposed intervenors renewed their motion

for intervention, and two class members moved for substitution of

counsel. The motion for substitution of counsel was accompanied

by a petition containing the signatures of 167 class members,

representing one hundred percent of the HIV-positive inmates at

2
The size of the plaintiff class appears to have varied
significantly over the course of the class action, and neither the
record nor the parties provide firm numbers for the class size at
certain particular points in time. The 140-member class noted here
derives from the district court’s order, which we assume to be the
best available representation of class size for the period in
question.

9
Parchman.3 In January 2000, the district court issued a

temporary order forbidding NPP lawyers from contacting class

members. In February, the district court denied the motions for

intervention and substitution of counsel, and converted its order

into a permanent bar on NPP lawyers contacting class members

regarding anything within the class counsel’s “jurisdiction” --

i.e. anything relating to the treatment or prison conditions of

HIV-positive inmates. The district court also denied appellants’

motion for attorneys fees. Proposed intervenors and the

unsuccessful movants for substitution of counsel and attorneys

fees appeal.

II. Analysis

A. No-contact order

It is a well-established principle that district courts

enjoy wide latitude in managing complex litigation in general and

class actions in particular. See, e.g., Mullen v. Treasure Chest

Casino, LLC, 186 F.3d 620, 623 (5th Cir. 1999). However, any

administration by the district court must seek to avoid impinging

on class members’ constitutional rights, in this case those of

speech, association, and access to counsel of their choice. Any

3
The precise total number of class members at the time of the
petition is not known. All of the class members housed at the HIV-
positive segregated unit at Parchman, Unit 28, signed the petition.
The petition was not signed by any class members housed elsewhere,
e.g. in the women’s facility. According to estimates of the class
size provided by class counsel, approximately eighty percent of the
total class is represented by the petition signatures.

10
infringement of such rights must be strictly limited only to that

which is determined necessary after sufficient findings have been

established in the record.

The no-contact order in issue here contradicts the

principles enunciated in Gulf Oil Co. v. Bernard, 452 U.S. 89 477

(1981). In overturning a no-contact order issued in a class

action, the Supreme Court noted that such orders must be based on

a clear record and “specific findings that reflect a weighing of

the need for a limitation and the potential interference with the

rights of the parties.” See id. at 101. The order resulting

from such a process should be carefully drawn in order to limit

speech as little as possible. See id. at 102.4

The order in this case bars all contact between NPP

attorneys and class members regarding the subject matter of the

class action, i.e. prison conditions, treatment, and healthcare.

The order is not narrowly drawn nor is it justified by any

factual findings other than that seven of 167 inmates returned

letters from Welch unopened (during the period before the

district court ruled on the substitution motion) and that NPP

attorneys, like Welch himself, managed “small favors” for the

4
Because the Supreme Court found that the order in issue was
an abuse of discretion and did not comport with the requirements of
Rule 23, it did not decide the issue of First Amendment
requirements for such orders; it did note, however, that the order
created serious restraints on expression, see id. at 103-04, and
therefore presumably could be the basis of a constitutional
challenge should one prove necessary.

11
class members.

The class members who wish to remain in contact with NPP

attorneys seek to exercise their right as individuals to consult

with the counsel of their choice on matters of great concern to

them. See Texas Catastrophe Property Ins. Assoc. v. Morales, 975

F.2d 1178, 1180-81 (5th Cir. 1992) (finding a fundamental right

to retain counsel of choice in civil actions); see also Mitchell

v. Johnson, 701 F.2d 337, 351 (5th Cir. 1983) (the district court

is not free to “substitute its judgment for that of the litigant

in the choice or number of counsel that the litigant may feel is

required to properly represent his interests”)(citation omitted).

The district court is not free to impinge on those rights without

weightier findings than those here; the findings in the record

below do not establish the necessity for the order issued.

Moreover, a limiting order must be narrowly drawn to minimize

prior restraints on speech, association, and the inmates’ rights

to counsel. The no-contact order in this case does not satisfy

these requirements and we therefore vacate it.

B. Denial of intervention/substitution of counsel

Appellants argue that the district court erred in denying

the motions for substitution of counsel and intervention because

at least eighty percent of the class members supported

substitution and Welch was not adequately performing his duties.

Denials of motions for substitution of counsel are reviewed for

12
abuse of discretion. See Pettway v. American Cast Iron Pipe Co.,

576 F.2d 1157,1178 (5th Cir. 1978). We treat appellants’ motion

for intervention as one for intervention as of right under

Fed.R.Civ.P. 24(a). The denial of that motion is reviewed de

novo. See Edwards v. City of Houston, 78 F.3d 983, 999-1000

(5th Cir. 1996) (en banc). The facts of this case justify a

finding that the district court committed reversible error under

either standard in denying the motions for substitution and/or

intervention.5 We therefore reverse the denial of the motion for

5
The state of Mississippi challenges this Court’s jurisdiction
to review the district court’s denial of petitioner’s motion to
substitute counsel as an appealable final order pursuant to 28
U.S.C. § 1291. This Court, however, need not reach the issue of
whether the petitioner’s post-judgment motion to substitute counsel
is independently appealable. There is no dispute that the district
court’s no-contact order is properly before this Court. In the
district court’s February 1 order prohibiting the ACLU from contact
with any inmate on matters within the jurisdiction of class
counsel, the magistrate also denied the renewed motions for
intervention and substitution of counsel. On February 11, the
petitioners filed a timely notice of appeal of all rulings in the
February 1 order.
Where this Court has interlocutory jurisdiction over an
injunctive order pursuant to § 1292(a)(1), it may, in its
discretion, consider all aspects of that order. Mercury Motor
Express, Inc. v. Brinke, 475 F.2d 1086, 1091 (5th Cir. 1973);
Magnolia Marine Transport v. LaPlace Towing Corp., 964 F.2d 1571,
1580 (5th Cir. 1992) (“[A]n order granting or refusing an
injunction brings before the appellate court the entire order . .
.”); Gould v. Control Laser Corp., 650 F.2d 617, 621 n. 7 (5th Cir.
1981) (“[I]n reviewing interlocutory injunctions we may look to
otherwise nonappealable aspects of the order.”); Myers v. Gilman
Paper Corp., 544 F.2d 837, 847 (5th Cir. 1977) (“It is well settled
that an appellate court that has jurisdiction over an interlocutory
order containing injunctive relief may reach and decide other
aspects of that order even though the others would not be
reviewable independently by interlocutory appeal”); 16 CHARLES A.
WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3921.1 (2d ed. 1996). We

13
substitution.6

Two main factors support substitution of counsel in this

case. First, the sentiments of the class indicate a clear

preference for a known substitute, i.e. the NPP attorneys.

Second, and more importantly, Welch’s nonfeasance and the

constraints upon his ability adequately to prosecute the sub-

class’ case urge the rare remedy of substitution. District

courts normally enjoy substantial latitude in deciding motions

for substitution of counsel. In long-standing class actions, in

particular, significant administrative difficulties could arise

from frequent or competing motions for substitution or

intervention, and we in no way wish to encourage the unjustified

recognize that this discretion should be exercised “only in rare
and unique circumstances.” Gros v. City of Grand Prairie, 209 F.3d
431, 436 (5th Cir. 2000).
In this case, judgment has already been entered in the form of
a consent decree. Nothing is currently pending before the district
court, save its continuing jurisdiction over the decree. Given the
procedural posture of this case, we feel it is appropriate to
exercise our discretion and review the petitioner’s motion to
substitute counsel. Absent the exercise of our discretion, the
petitioners will be deprived of any meaningful opportunity to have
their motion reviewed.
We do not overlook, nor do we agree with the dissent that we
should be bound by, the Tenth Circuit’s holding in Arney v. Finney,
967 F.2d 418 (10th Cir. 1992). By exercising our pendent appellate
jurisdiction, we do not address the issue decided in Arney, that
is, whether a Court of Appeals has independent jurisdiction over a
motion to substitute counsel.

6
According to appellants’ description, the motion for substitution
and the motion for intervention sought to attain the same practical
result, i.e. representation by NPP attorneys in the class action.
Because we reverse the district court’s denial of the motion for
substitution, intervention becomes unnecessary.

14
use of such motions. Mere dissatisfaction with class counsel’s

strategy or obtained results does not adequately support a motion

for substitution of counsel. Nonetheless, the unique

circumstances of this case do warrant substitution.

Appellees first urge that the class members’ motions for

intervention and substitution of counsel were untimely. However,

such motions made during the ongoing administration of a class

action settlement by a district court are not per se untimely.

See United Airlines, Inc. v. McDonald, 432 U.S. 385, 394-96

(1977) (putative class members’ post-judgment motion to intervene

was timely filed). The district court did not reject the motions

as untimely, nor do we.

In Pettway, this Court reversed a denial of a motion for

substitution of counsel where seventy percent of the class

supported it, noting that class counsel may not substitute his

own subjective judgment for that of the class on major questions

of litigation. See Pettway, 576 F.2d at 1177. In this case, at

least eighty percent of the class supported substitution.

Welch’s own words in letters to the class explain his deliberate

intent to use his own subjective judgment regarding the

objectives and appropriate relief for the class even as against a

majority of the class members’ explicit wishes. Thus, Welch’s

behavior is of a type that we recognized in Pettway as justifying

substitution of counsel.

15
 Welch’s nonfeasance and mishandling of certain aspects of

the case also warrant his substitution here. First, Welch is a

solo practitioner with limited resources. Such a fact does not

on its own justify substitution of counsel – numerous solo

practitioners have demonstrated their ability and zeal in

prosecuting even very large class actions. However, in this

case, Welch’s resources were already stretched by his

representation of the Gates class as well as numerous other

subclasses. More importantly, Welch’s own admissions demonstrate

his subjective belief that he was unable actively to prosecute

the HIV-positive prisoners’ claims.7 His failure to secure

outside expert review of the subclass members’ medical care, even

after this Court specifically noted the necessity of such review

on a previous appeal, corroborates the limits of Welch’s

resources and ability to litigate the HIV-positive prisoners’

case.

Appellants also argue that Welch has a conflict of interest

inherent in his dual representation of the HIV-positive prisoners

and of the general prison population in Gates because segments of

that population might object to the HIV-positive prisoners

gaining access to work training and other programs from which

7
In letters to the class and to the ACLU soliciting their
assistance, Welch described the limitations of his resources as a
solo practitioner with no regular assistance and without the
resources to hire expensive experts.

16
they are currently excluded. Welch disputes the existence of

such a conflict, and the district court agreed with him, ruling

that there was no apparent conflict of interest. The allegation

of a conflict of interest is not self-evident; there is no

necessary or inherent conflict between the objectives of the HIV-

positive subclass and that of the general population. However,

Welch explained to the class in responding to complaints about

his inaction that he refrained from taking aggressive action on

their desegregation claims in part because he feared the general

population would object to it. We therefore have a direct

admission by counsel that his advocacy was in fact impaired, at

least at one time and as to one set of issues. That admission

erases any doubt that would otherwise exist regarding conflict of

interest difficulties faced by counsel.

Evidence of nonfeasance and mishandling of certain aspects

of the case and the lawyer-client relationship also exists. The

record indicates that Welch failed to give the class adequate

notice and opportunity to object to the settlement he procured

for them in 1995.8 See Kincade v. General Tire & Rubber Co., 635

F.2d 501, 507 (5th Cir. 1981) (notice and opportunity to object

8
Welch mailed copies of the proposed agreement to the class
representatives and certain class members at the same time as the
proposed agreement was filed with the court. Welch also requested
that the district court direct him as to appropriate notice under
Rule 23(e), which it declined to do. The district court accepted
the proposed agreement within days of its being filed and before
any objections from class members reached the court.

17
to settlement required for Rule 23(b)(2) classes).

Welch’s relationship with members of the subclass

deteriorated over time, particularly after the motions for

intervention and substitution were filed. For example, Welch

disclosed confidential communications from a class member in the

public record. While Welch argues that he was entitled to

disclose communications relevant to a claim against him, a motion

for substitution does not constitute a classical “claim” against

an attorney as would a malpractice suit. In addition, Welch

apparently made no effort to redact the letter or limit it to in

camera review. See MISS. RULES OF PROFESSIONAL CONDUCT Rule

1.6(a) and Cmt. (1999) (where disclosure is authorized to defend

against a claim or assertion of wrongdoing, “the lawyer must make

every effort practicable to avoid unnecessary disclosure of

information relating to a representation, to limit disclosure to

those having the need to know it, and to obtain protective orders

or make other arrangements minimizing the risk of disclosure”);

Flowers v. State, 601 So.2d 828, 832 (Miss. 1992)(lawyer may not

reveal confidential communications without client’s consent);

Singleton v. Stegall, 580 So.2d 1242, 1245 (Miss. 1991) (lawyer

owes duty of confidentiality to her client).

Welch also described the subclass in the national press as

being “manipulative.” He was further quoted as saying that he

had no sympathy for them and that they used their HIV status to

18
garner the sympathy of the public. During the hearing on the

motion for preliminary injunction prepared by NPP attorneys and

joined by him, Welch appeared to take MDOC’s side, conducting a

cross-examination style interrogation of plaintiffs’ expert

witness. Such behavior undermines both an attorney’s credibility

with his clients and the chances of a successful motion.

Welch argues that the denial of substitution was not an

abuse of discretion because the presumption of adequate

representation identified in Edwards v. City of Houston, 78 F.3d

983, 1005 (5th Cir. 1996) was not overcome. We note, however,

that the burden of showing that the presumption of adequacy

should be overcome is “minimal,” id., and the facts noted above

do overcome such a presumption as regards Welch’s representation

of this particular subclass. Welch’s arguments regarding the

adequacy of his representation essentially demonstrate his belief

that a cooperative rather than combative style of advocacy is

preferable in this case. We in no way disagree with the

proposition that a cooperative style can accomplish more in some

circumstances than an overly hostile and aggressive one.9

9
The governmental defendants have endorsed Welch in preference
to the NPP attorneys, noting the good working relationship Welch
has established with MDOC. Such a relationship can be very
valuable in ongoing litigation such as this, though it can also
sometimes blur the lines of the adversary relationship, as when
Welch conducted a cross-examination style interrogation of
plaintiffs’ expert. While we note that the relationship between
Welch and NPP attorneys soured over time (Welch originally
solicited their help with the case; he argues that after that point

19
However, Welch’s actions, the constraints inherent in his

situation, and the deteriorated state of his relationship with

his clients necessitate his substitution as counsel.

C. Motion for attorneys’ fees

Appellants argue that even though they were unsuccessful in

their motions for substitution and intervention, they are

nonetheless entitled to attorneys’ fees because they succeeded in

securing a preliminary injunction that requires MDOC to change

the care it provides to HIV-positive inmates. Appellees contend

that because the ACLU was never made counsel of record, it should

not receive attorneys’ fees even if it provided all of the labor

and expertise behind the successful motion for preliminary

injunction. District courts have broad discretion in determining

whether to award attorneys’ fees, and the denial of fees is

reviewed for abuse of that discretion. See Gibbs v. Gibbs, 210

F.3d 491, 500 (5th Cir. 2000).

Appellees argue, under Morales v. Turman, 820 F.2d 728. 731

(5th Cir. 1987), that only parties to the litigation may receive

attorneys’ fees under the Civil Rights Attorney’s Fee Awards Act

NPP attorneys did not keep him adequately informed of their
investigation on behalf of the class), our decision does not rest
on the difference between contrasting styles or an assessment of
the relationship among counsel. Rather, our evaluation of the
objective facts in this case leads to the inescapable conclusion
that whatever the merits of his efforts, Welch’s ability to
represent the subclass in issue has sufficiently deteriorated such
that substitution is now necessary.

20
of 1976 and § 1983. See also Cook v. Powell Buick, Inc., 155

F.3d 758, 761 (5th Cir. 1998) (unsuccessful intervenors in a

class action did not become party litigants in the suit and

therefore could not appeal anything other than the denial of

their motion to intervene). Our decision regarding the motions

for substitution and intervention may affect the viability of

that argument, though it remains true that given its prior

rulings, which we set aside today, the district court was

justified at the time in denying attorneys fees to the

unsuccessful movants.

Turning to the merits of the issue, appellants argue that

because the preliminary injunction achieved their primary

objectives in making the motion even if it did not reflect in

precise detail the relief sought they should be entitled to fees

as a matter of ordinary practice. See Tasby v. Estes, 651 F.2d

287 (5th Cir. 1981) (holding that attorneys who were not counsel

of record in the litigation but who were retained by parties and

who performed beneficial and non-duplicative work in the

litigation were entitled to attorneys’ fees).

While it would have been within the district court’s

discretion to award fees to appellants, it is not therefore

necessarily an abuse of discretion to deny them. The NPP

attorneys knew when they advanced the motion for preliminary

injunction that there was some risk that they would not become

21
the counsel of record for the plaintiff class.

The order denying attorneys fees only states that it does so

because the NPP attorneys never became counsel of record to any

recognized party to the action. While there may be other reasons

that would prompt the district court, in its discretion, to deny

fees to the NPP attorneys, it did not have the benefit of our

holding on the substitution/intervention issue before it at the

time it denied the fee application. We therefore vacate the

order denying attorneys fees and remand the issue of fees for

reconsideration in light of our holdings here and the entire

record of the litigation.10

III.Conclusion

While district courts enjoy substantial latitude in managing

class action litigation, the trial court in this case erred in

denying the motions for substitution and intervention and in

promulgating its no-contact order. Accordingly, we VACATE the

no-contact order, REVERSE the denial of the motion for

substitution of the NPP attorneys with direction that they be

substituted for attorney Welch to represent the subclass of HIV

positive inmates, and VACATE and REMAND the issue of attorneys

fees to the district court for further consideration.

10
The appellants’ motion to supplement the record is denied.
The appellants’ motion to expedite decision is dismissed as moot.
Finally, the appellees’ request for mandamus is denied.

22
EDITH H. JONES, Circuit Judge, dissenting:

With due respect to my colleagues, this Court does not

have jurisdiction to review the interlocutory order denying

substitution of counsel simply because it was entered

contemporaneously with the no-contact order. We should be bound

by the Tenth Circuit’s decision, following Supreme Court

precedent, that it lacked jurisdiction in a case on point. The

majority’s approach can only be viewed as an ill-conceived

exercise of the dubious doctrine of pendent appellate

jurisdiction.

The Tenth Circuit held that it lacked jurisdiction to

review a termination of counsel motion in a case strikingly

similar to this one. In Arney v. Finney, 967 F.2d 418, 422 (10th

Cir. 1992), prisoners brought a class action challenging prison

conditions. Class counsel was appointed and the district court

entered a consent decree. When some prisoners became

dissatisfied with the enforcement of and modifications to the

consent decree, they sought to intervene and replace counsel. A

majority of the class members supported the motion, but the

district court denied it. See Arney, 967 F.2d at 420-21.

The appeals court held that even though it could review

the order denying intervention of class members, it did not have

23
jurisdiction to consider the motion to terminate counsel. It

applied the Supreme Court’s decision in Firestone Tire & Rubber

Co. v. Risjord, 449 U.S. 368, 375 (1981), holding that an order

denying disqualification of counsel is not appealable. See also

Shakman v. Democratic Org. of Cook County, 919 F.2d 455, 459 (7th

Cir. 1990) (under Firestone, an order denying substitution of

counsel is not appealable).

This case is substantively identical to Arney. It is a

prisoner class action suit. There is an existing consent decree.

The intervenors are situated identically with the rest of the

class. A majority of the class have signed a petition to

substitute counsel. The district court has denied a motion to

intervene and substitute counsel. The jurisdictional ruling in

Arney should control this case.

The majority overlooks Arney and asserts that we have

jurisdiction because the district court enforced its substitution

of counsel order with a no-contact order against the ACLU, a non-

party. The majority avoids the term pendent appellate

jurisdiction (“PAJ”), but that is what they are exercising. The

theory of pendent appellate jurisdiction is that an appellate

court may, on review of an appealable interlocutory order, also

assume jurisdiction over an otherwise non-appealable order. See

Swint v. Chambers County Comm., 514 U.S. 35, 44 n.2 (1995)

24
(citing as an example of PAJ a case where the Ninth Circuit

reviewed a nonappealable claim along with a preliminary

injunction, see Transworld Airlines, Inc. v. American Coupon

Exchange, Inc., 913 F.2d 676 (9th Cir. 1990)); Law v. NCAA, 134

F.3d 1025, 1028 (10th Cir. 1998) (using PAJ analysis to decide

what claims are reviewable with an injunction); Chambers v. Ohio

Dept. of Human Svcs, 145 F.3d 793, 797 (6th Cir. 1998) (same);

California v. Campbell, 138 F.3d 772, 778 (9th Cir. 1998) (same).

I believe that in the unlikely event that pendent

appellate jurisdiction continues to exist at all, the

interlocutory denial of substitution of counsel may not be

appealed on the coat-tails of the no-contact order.

The Supreme Court cast considerable doubt on PAJ in

Swint. In that case, the Eleventh Circuit claimed that it had

discretion to review nonappealable issues with a collateral

order. The Supreme Court reversed, observing that Congress

carefully limited the scope of interlocutory review and

established specific procedures to determine when appeals courts

can review an interlocutory order. See id. at 46-48. It

questioned whether federal appeals courts can circumvent

congressional intent by expanding appellate review through PAJ.

See id. at 46-47. The Court did not conclusively decide “whether

25
or when it may be proper for a court of appeals, with

jurisdiction over one ruling, to review, conjunctively, related

[nonappealable] rulings.” It did hold that the Eleventh Circuit

abused discretion by applying PAJ where the appealable order and

the nonappealable order were not inextricably intertwined.

In the aftermath of Swint, courts have been hesitant to

exercise PAJ. Chief Judge Posner has observed that PAJ “hangs by

a thread.” See In re Rimsat v. Hilliard, 98 F.3d 956, 964 (7th

Cir. 1996) (avoiding PAJ and finding appellate jurisdiction

through another doctrine). This Court has described PAJ after

Swint as “uncharted terrain.” See Cantu v. Rocha, 77 F.3d 795,

805 (5th Cir. 1996) (finding no compelling reason to navigate the

wilderness). We exercise it “only in rare and unique

circumstances.” Gros v. City of Grand Prairie, 209 F.3d 431, 436

(5th Cir. 2000) (finding no unique circumstances). By looking

only to pre-Swint authority to justify its jurisdiction, the

majority fails to recognize that appellate courts can no longer

freely consider all aspects of an injunctive order.

Swint establishes that, at best, this Court might be

able to review the order denying substitution of counsel if it is

inextricably intertwined with the no-contact order, but a common

basis of operative fact does not alone satisfy that standard.

26
 This Court has suggested that if an appeals court can

resolve appealable orders separately from the nonappealable

orders, the orders are not inextricably intertwined. See Gros,

209 F.3d at 437 (finding that a qualified immunity claim was not

inextricably intertwined with non-immunity claims because the

claims had “unique elements and relevant facts.”).

Other circuits agree that claims are inextricably

intertwined only if “the pendent claim is coterminous with, or

subsumed in, the claim before the court on interlocutory appeal.”

Law v. NCAA, 134 F.3d 1025, 1028 (10th Cir. 1998) (finding claims

inextricably intertwined in a PAJ claim based on a permanent

injunction). See also Chambers v. Ohio Dept. of Human Svcs, 145

F.3d 793, 797 (6th Cir. 1998) (same). “Given the Supreme Court’s

criticism of pendent appellate jurisdiction, the Court’s

‘inextricably intertwined’ exception should be narrowly

construed.” California v. Campbell, 138 F.3d 772, 778 (9th Cir.

1998) (holding that it could easily address the appealable claim

without discussing the nonappealable claim).

Here, the elements of the constitutional claim

challenging the no-contact order are distinct from the elements

of the substitution of counsel challenge. First, different

parties are involved: ACLU alone is aggrieved by the no-contact

order, while the denial of substitution order bears only on the

27
prisoners. Second, the constitutionality of the no-contact order

is entirely unrelated to the merits of the class attorney’s

performance. This Court could easily lift the no-contact order

while leaving the substitution of counsel order intact. Thus,

the orders are not inextricably intertwined and PAJ, even if it

has vitality, is inappropriate.11

The majority’s unarticulated premise for assuming

jurisdiction seems to be that appellate requirements may have to

be relaxed in a post-judgment context. In other words, how could

any order denying substitution of counsel in institutional

litigation governed by a consent decree ever become final for

appeal? The Tenth Circuit affords one answer. In a prison

conditions case, it granted mandamus relief requiring the

district court to consider a pro se prisoner’s challenge to the

application of the decree that class counsel had refused to

review. See Mcneil v. Guthrie, 945 F.2d 1163 (10th Cir. 1991).

11
The majority might have suggested that PAJ would exist because the orders
denying intervention of new class representatives and the denial of counsel substitution
are “intertwined.” This conclusion would fail for two reasons. First, the prisoners
seek only permissive intervention (F.R.A.P. 24(b)), since their interests are not
adverse to but cumulative of the present class representatives. See Edwards v. City
of Houston, 78 F.3d 983 (5th Cir. 1996) (“The applicant for intervention must show
adversity of interest, collusion, or nonfeasance on the part of the existing party to
overcome the presumption [of adequate representation”). Appellate jurisdiction exists
over the denial of permissive intervention only if the district court abused discretion.
See id. at 992, in denying such relief. Second, the current class representatives are
appealing the order denying substitution; tacking that order onto the intervention order
for PAJ is a meaningless exercise.

28
Mandamus relief may thus be available where an order is not

otherwise reviewable on appeal.

If we did have jurisdiction over this appeal, I would

be hard put to subscribe to the majority’s appellate factfindings

on Welch’s performance as class counsel, much less to hold the

magistrate judge’s decision an abuse of discretion.12 Each of

the “facts” that the majority finds concerning Welch’s alleged

nonfeasance and conflicts was vigorously contradicted by Welch’s

declarations and evidence or was placed by his responses in a

context that exonerated him from the dissident prisoners’

complaints.13 The district court implicitly credited Welch’s

version of events, yet the majority discredits Welch without

demonstrating clear error. I would have deferred to the trial

court’s credibility calls. At least, the majority should have

remanded for a hearing, in light of the perfunctory trial court

ruling, to permit Welch to confront his accusers before the panel

majority required the unusual and reputation-damaging remedy of

counsel substitution.

12
When brought up on appeal as part of a final judgment, denials of motions
to substitute class counsel are reviewed for abuse of discretion. Pettway v. American
Cast Iron Pipe Co., 576 F.2d 1157, 1178 (5th Cir. 1978). The majority opinion is
needlessly ambiguous on this point.
13
The majority faults Welch for revealing to the court some of his letters
to and from the class representatives during the dispute over substitution. Welch
points out, however, that the class representatives had themselves waived
confidentiality by delivering this same correspondence to the ACLU.

29
 The majority’s jurisdictional error and their rush to

overturn the district court’s discretionary decision carry

unfortunate implications in many ongoing prison conditions cases.

This decision will encourage dissident prisoner groups to second-

guess class counsel and seek separate representation, effectively

harassing class counsel and wasting precious public resources on

tangential issues. Properly applied standards of appellate

jurisdiction would eliminate this problem. I respectfully

dissent.

30