Lawrence R. Alberti, et al., Plaintiffs-appellees Cross-appellants, v. Johnny Klevenhagen, et al., Defendants-appellants Cross-appellees, 903 F.2d 352 (5th Cir. 1990)

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US Court of Appeals for the Fifth Circuit - 903 F.2d 352 (5th Cir. 1990) May 31, 1990

Roderick O. Lawrence and Lisa Rice, Houston, Tex., for defendants-appellants cross-appellees.

Gerald M. Birnberg and Jim Oitzinger, Houston, Tex., for Alberti, et al.

Appeal from the United States District Court for the Southern District of Texas, James DeAnda, Chief Judge.


(Opinion March 21, 1990, 5th Cir., 896 F.2d 927)

Before LIVELY,1  JOLLY, and HIGGINBOTHAM, Circuit Judges.


With one exception, we deny the petitions for rehearing filed in this case. In our original opinion, Alberti v. Klevenhagen, 896 F.2d 927 (5th Cir. 1990), we reversed the district court's $5.00 enhancement of the hourly rate to compensate plaintiffs' attorneys for case undesirability. We now vacate that portion of the opinion and affirm the district court's case undesirability enhancement. We are now persuaded that the district court's finding that an enhancement for case undesirability was required to attract competent counsel to take on this undesirable prison conditions litigation was supported by the record. We find that support in testimony by plaintiffs' attorneys and an expert economist on how the local market treats undesirable cases. We defer action on Oitzinger and Birnberg's motion for fees and costs incurred in prosecuting this appeal until entry of judgment on remand.


Circuit Judge of the 6th Circuit, sitting by designation