Carolyn BRADLEY and Michael Bradley, infants, by Minerva Bradley, their mother and next friend, et al., Appellees, v. The SCHOOL BOARD OF the CITY OF RICHMOND, VIRGINIA, et al., Appellant.
No. 71-1774.
United States Court of Appeals, Fourth Circuit.
Decided Nov. 29, 1972.
472 F.2d 318
Heard March 7, 1972, Oct. 2, 1972.
Cf. Perkins v. Crittenden, 462 S.W.2d 565 (Tex.Sup., 1970).
The defect in pleading the claim and the lack of substantiation cannot be cured by defendant‘s failure to raise that issue on summary judgment without unjustifiably shifting plaintiffs’ burden of establishing their cause of action to defendant.
“A summary judgment is neither a method of avoiding the necessity for proving one‘s case nor a clever procedural gambit whereby a claimant can shift to his adversary his burden of proof on one or more issues. (Adickes v. S. H. Kress & Co. (1969) 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed. 142.) To obtain a judgment in favor of a claimant pursuant to his complaint, counter-claim, or cross-claim, the moving party must offer evidence sufficient to support a finding upon every element of his claim for relief, except those elements admitted by his adversary in his pleadings, or by stipulation, or otherwise during the course of pretrial. A plaintiff seeking summary judgment who has failed to produce such evidence on one or more essential elements of his cause of action is no more ‘entitled to a judgment’ (
United States v. Dibble, 429 F.2d 598 (9th Cir., 1970).
Accordingly, we reverse the judgment of the district court and remand for proceedings consistent herewith.
Reversed and remanded.
Louis R. Lucas, Memphis, Tenn. (Jack Greenberg, James Nabrit, III, Norman J. Chachkin, New York City, James R. Olphin and M. Ralph Page, Richmond, Va., on brief), for appellees.
Section III of the opinion, dealing with the application of Section 718 to the proceedings, before HAYNSWORTH, Chief Judge, and WINTER, CRAVEN, RUSSELL and FIELD, Circuit Judges (BUTZNER, Circuit Judge, being disqualified) sitting en banc.
Other parts of the cause before WINTER, CRAVEN and RUSSELL, Circuit Judges.
This appeal challenges an award of attorney‘s fees made to counsel for plaintiffs in the school desegregation suit filed against the School Board of the City of Richmond, Virginia. Though the action has been pending for a number of years,1 the award covers services only for a period from March, 1970, to January 29, 1971. It is predicated on two grounds: (1) that the actions taken and defenses entered by the defendant School Board during such period represented unreasonable and obdurate refusal to implement clear constitutional standards; and (2) apart from any consideration of obduracy on the part of the defendant School Board since 1970, it is appropriate in school desegregation cases, for policy reasons, to allow counsel for the private parties attorney‘s fees as an item of costs. The defendant School Board contends that neither ground sustains the award. We agree.
We shall consider the two grounds separately.
I.
This Court has repeatedly declared that only in “the extraordinary case” where it has been ““found that the bringing of the action should have been unnecessary and was compelled by the school board‘s unreasonable, obdurate obstinacy’ or persistent defiance of law“, would a court, in the exercise of its equitable powers, award attorney‘s fees in school desegregation cases. Brewer v. School Board of City of Norfolk, Virginia (4th Cir. 1972) 456 F.2d 943, 949. Whether the conduct of the School Board constitutes “obdurate obstinacy” in a particular case is ordinarily committed to the discretion of the District Judge, to be disturbed only “in the face of compelling circumstances“. Bradley v. School Board of City of Richmond, Virginia (4th Cir. 1965) 345 F.2d 310, 321. A finding of obduracy by the District Court, like any other finding of fact made by it, should be reversed, however, if “the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. Gypsum Co. (1948) 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746; Wright-Miller, Federal Practice and Procedure, Vol. 9, p. 731 (1971). We are convinced that the finding by the District Court of “obdurate obstinacy” on the part of the defendant School Board in this case was error.
Fundamental to the District Court‘s finding of obduracy is its conclusion that the litigation, during the period for which an allowance was made, was unnecessary and only required because of the unreasonable refusal of the defendant School Board to accept in good faith the clear standards already established for developing a plan for a non-racial unitary school system. This follows from the pointed statements of the Court in the opinion under review that, “Because the relevant legal standards were clear it is not unfair to say that the litigation (in this period) was unnecessary“, and that, “When parties must institute litigation to secure what is plainly due them, it is not unfair to characterize a defendant‘s conduct as obstinate and unreasonable and as a perversion of the purpose of adjudication, which is to settle actual disputes.”2 At another point in its opinion, the Court uses similar language, declaring that “the continued litigation herein (has) been precipitated by the defendants’ reluctance to accept clear legal direction, * * *.”3 It would appear, however, that these criticisms of the conduct of the Board, upon which, to such a large extent, the Court‘s award rests, represent exercises in hindsight rather than appraisal of the Board‘s action in the light of the law as it then ap-
It is true, as the District Court indicates, that the Supreme Court in 1968 had, in Green v. County School Board (1968) 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716, found “freedom-of-choice” plans that were not effective unacceptable instruments of desegregation, and that the defendant Board, following that decision, had taken no affirmative steps on its own to vacate the earlier Court-approved “freedom-of-choice” plan for the Richmond School system, or to submit a new plan to replace it. In Green, the Court had held that, “if there are reasonably available other ways, such for illustration as zoning, promising speedier and more effective conversion to a unitary nonracial school system, ‘freedom of choice’ must be held unacceptable.”12 In suggesting zoning, Green offered a ready and easily applied alternative to “freedom-of-choice” for a thinly populated, rural school district such as Old Kent, but other than denying generally legitimacy to freedom-of-choice plans, Green set forth few, if any, standards or benchmarks for fashioning a unitary system in an urbanized school district, with a majority black student constituency, such as the Richmond school system. In fact, a commentator has observed that “Green raises more questions than it answers“.13 Perhaps the School Board, despite the obvious difficulties, should have acted promptly after the Green decision to prepare a new plan for submission to the Court. Because of the vexing uncertainties that confronted the School Board in framing a new plan of desegregation, problems which, incidentally, the District Court itself finally concluded could only be solved by the drastic and novel remedy of merging independent school districts,14 and pressed with no local complaints from plaintiffs or others, it was natural that the School Board would delay. Mere inaction under such circumstances, however, and in the face of the practical difficulties as reflected in the later litigation, cannot be fairly characterized as obdurateness. Indeed the plaintiffs themselves were in some apparent doubt as to how they wished to proceed in the period immediately after Green and took no action until March, 1970. Even then they offered no real plan, contenting themselves with demanding that the School Board formulate a unitary plan, and with requesting an award of attorney‘s fees. It is unnecessary to pursue this matter, however, since the District Court does not seem to have based its award upon the inaction of the School Board prior to March 10, 1970, but predicated its award on the subsequent conduct of the School Board.
The proceedings, to which this award applies, began with the filing by the plaintiffs of their motion of March 10, 1970, in which they asked the District Court to “require the defendant school board forthwith to put into effect a method of assigning children to public schools and to take other appropriate steps which will promptly and realistically convert the public schools of the City of Richmond into a unitary non-racial system from which all vestiges of racial segregation will have been removed; and that the Court award a reasonable fee to their counsel to be assessed as costs.” With the filing of this motion,
On May 4, 1970, HEW submitted to the School Board its desegregation plan,
The Court did find some fault with the Board because, “Although the School Board had stated, as noted, that the free choice system failed to comply with the Constitution, producing as it did segregated schools, they declined to admit during the June (1970) hearings that this segregation was attributable to the force of law (transcript, hearing of June 20, 1970, at 322)” and that as a result, “the plaintiffs were put to the time and expense of demonstrating that governmental action lay behind the segregated school attendance prevailing in Richmond“.19 This claim of obstruction on the part of the Board is based on the latter‘s refusal to concede, in reply to the Court‘s inquiry, “that free choice did not work because it was de facto segregation“.20 It is somewhat difficult to discern the importance of determining whether the “free choice” plan represented “de facto segregation” or not: It was candidly conceded by the School Board that “free choice“, as applied to the Richmond schools, was impermissible constitutionally, and this concession was made whether the unacceptability was due to “de facto” segregation or not.21 In a school system such as that of Richmond, where there had been formerly de jure segregation, Green imposed on the School Board the “duty to eliminate racially identifiable schools even where their preservation results from educationally sound pupil assignment policies.”22 The School Board‘s duty was to eliminate, as far as feasible, “racially identifiable schools” in its sys-
The Court‘s finding of obstruction particularly centers on the substitute plan which the School Board proposed on July 23, 1970, in accordance with the Court‘s previous directive. It found two objections to the plan. The objections are actually part of one problem, i.e., transportation. The first objection was that the plan did not require as much integration in the elementary grades as in the higher grades. Such a difference in treatment, however, the Court found had some support in both Swann28 and Brewer.29 An increase in the desegregation of the elementary
The conclusion of the District Court that the Board was “unreasonably obdurate“, it seems, was influenced by the feeling, repeated in a number of the Court‘s opinions, that “Each move (by the Board) in the agonizingly slow process of desegregation has been taken unwillingly and under coercion.”34 The record, as we read it, though, does not indicate that the Board was always halting, certainly not obstructive, in its efforts to discharge its legal duty to desegregate; nor does it seem that the Court itself had always so construed the action of the Board. In June, 1970, the Court remarked, that, while not satisfied “that every reasonable effort has been made to explore” all possible means of improving its plan, it was “satisfied Dr. Little and Mr. Adams (the school administrators) have been working day and night diligently to do the best they could, the School Board too.”35 It may be that in the early years after Brown the School Board was neglectful of its responsibility, but, beginning in the middle of 1965, it seems to have become more active. Moreover, the promptness and vigor with which the Board adopted and pressed the suggestion of the Court that steps be considered in connection with a possible consolidation of the Richmond schools with those of Chesterfield and Henrico Counties must cast doubt upon any finding that the Board was unwilling to explore any avenue, even one of uncharted legality, in the discharge of its obligation. The Court wrote its letter suggesting a discussion with the other counties looking to such possible consolidation on July 6, 1970. The letter was addressed to the attorneys for the plaintiffs but a copy went to counsel for the School Board. Nothing was done by counsel for the plaintiffs as a result of this letter but on July 23,
It is clear that the Board, in attempting to develop a unitary school system for Richmond during 1970, was not operating in an area where the practical methods to be used were plainly illuminated or where prior decisions had not left a “lingering doubt” as to the proper procedure to be followed.37 Even the District Court had its uncertainties. All parties were awaiting the decision of the Supreme Court in Swann. Before Swann was decided, however, the parties were engaged in an attempt to develop a novel method of desegregating the Richmond school system for which there was not at the time legal precedent. Nor can it be said that there was not some remaining confusion, at least at the District level, about the scope of Swann itself.38 The frustrations of the District Court in its commendable attempt to arrive at a school plan that would protect the constitutional rights of the plaintiffs and others in their class, are understandable, but, to some extent, the School Board itself was also frustrated. It seems to us unfair to find under these circumstances that it was unreasonably obdurate.
II.
The District Court enunciated an alternative ground for the award it made. It concluded that school desegregation actions serve the ends of sound public policy as expressed in Congressional acts and are thus actually public actions, carried on by “private-attorneys general,” who are entitled to be compensated as a part of the costs of the action. Specifically, it held that “exercise of equity power requires the Court to allow counsel‘s fees and expenses, in a field in which Congress has authorized broad equitable remedies ‘unless special circumstances would render such an award unjust.‘”39 Apparently, though, the District Court would limit the application of this alternative ground for the award to those situations where the rights of the plaintiff were plain and the defense manifestly without merit. This conclusion follows from the fact that the Court finds this right of an award only arose in 1970 and 1971, when it might be presumed from previous expressions in the opinion, the Court concluded that all doubts about how to achieve a non-racial unitary school system had been resolved, and any failure of a school system to inaugurate such a system was obviously in bad faith and in defiance of law. That follows from this statement made by way of preface to its exposition of its alternative ground:
“Passing the question of the appropriateness of allowing fees on the basis of traditional equitable standards, the Court is persuaded that in 1970 and 1971 the character of school desegregation litigation has become such
If this is the basis for the Court‘s alternative ground, it really does not differ from the rule that has heretofore been followed consistently by this Court that, where a defendant defends in bad faith or in defiance of law, equity will award attorney‘s fees. The difficulty with the application of the Court‘s alternative ground for an award on this basis, though, is its assumption that by 1970 the law on the standards to be applied in achieving a unitary school system had been clearly and finally determined. As we have seen, there was no such certainty in 1970; indeed it would not appear that such certainty exists today. And it is this very uncertainty that is the rationale of the decision in Kelly v. Guinn (9th Cir. 1972) 456 F.2d 100, 111, where the Court, citing both the District Court‘s opinion involved in this appeal (53 F.R.D. 28), and Lee v. Southern Home Sites Corp. (5th Cir. 1970) 429 F.2d 290, 295-296,41 sustained a denial of attorney‘s fees in a school integration case, because:
“First, there was substantial doubt as to the school district‘s legal obligation in the circumstances of this case; the district‘s resistance to plaintiffs’ demands rested upon that doubt, and not upon an obdurate refusal to implement clear constitutional rights. Second, throughout the proceedings the school district has evinced a willingness to discharge its responsibilities under the law when those duties were made clear.”
If, however, an award of attorney‘s fees is to be made as a means of implementing public policy, as the District Court indicates in its exposition of its alternative ground of award, it must normally find its warrant for such action in statutory authority.42 Congress, however, has made no provision for such award in school desegregation cases. Legislation to such effect, included in a bill to assist in the integration of educational institutions, was introduced in 1971 in Congress but it was not favorably considered. Moreover, in the Civil Rights Act of 1964, it expressly provided for such award in both the equal employment opportunity43 and the public accommodations sections44 but pointedly omitted to include such a provision in the public education section.45 In giving effect to this contrast in the several titles of the Civil Rights Act of 1964, and in affirming that any award of attorney‘s fees in a school desegregation case must be predicated on traditional equitable standards, the Court in Kemp v. Beasley (8th Cir. 1965) 352 F.2d 14, 23, said:
“Congress by specifically authorizing attorney‘s fees in Public Accommodation cases and not making allowance in school segregation cases clearly indicated that insofar as the Civil Rights Act is concerned, it does not authorize the sanction of legal fees in this type of action. The doctrine of Expressio unium est exclusio alterius applies here and is dispositive of this contention.”
The same conclusion was reached in Monroe v. Board of Com‘rs of City of Jackson, Tenn. (6th Cir. 1972) 453 F.2d 259, 262-263, note 1, where an award, though sustained, was sustained on the ground of “unreasonable, obdurate obstinacy” as enunciated in Bradley v. School Board of Richmond, Virginia (4th Cir. 1965) 345 F.2d 310, 321, and not
It is suggested that Mills v. Electric Auto-Lite (1970) 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593, and Lee v. Southern Home Sites Corp. (5th Cir. 1971) 444 F.2d 143, sustain this alternative award as in the nature of a sanction designed to further public policy. Any reliance on Mills is “misplaced, however, because conferral of benefits, not policy enforcement, was the Mills Court‘s stated justification for its holding.” 50 Tex.L.Rev. 207 (1971).46 In fact, the award in Mills was based on the same concept of benefit as was used to support the award in Trustees v. Greenough (1881) 105 U.S. 527, 26 L.Ed. 1157. 36 Mo.L.Rev. 137 (1971). Equally inapposite is Lee. Though filed under
If, however, the rationale of Mills is to be stretched so as to provide a vehicle for establishing judicial power justifying the employment of award of attorney‘s fees to promote and encourage private litigation in support of public policy as expressed by Congress or embodied in the Constitution, it will launch courts upon the difficult and complex task of determining what is public policy, an issue normally reserved for legislative determination, and, even more difficult, which public policy warrants the encouragement of award of fees to attorneys for private litigants who voluntarily take upon themselves the character of private attorneys-general.49 Counsel in environmental cases would claim such a role for their services.50 The protection of historical houses and monuments against the encroachment of highways has been cloaked within the mantle of public interest and it would be argued should receive the encouragement of an award.51 Consumers’ suits are clearly to be considered.52 Apportionment suits would justify awards under this theory.53 First Amendment rights are often spoken of as preferred constitutional rights. Attacks upon statutes infringing free speech would, under this theory, command an allowance. But it must be emphasized that whether the enforcement of Congressional purpose in
“The decision, (referring to Lee) however, sanctions excessive judicial discretion that may emasculate the general rule against fee awards and inject more unpredictability into the judicial process. The legislature should formulate a rule that would promote predictability and utilize the power inherent in fee allocation to pursue the goals it desires to achieve, one of which would be equal access to the courts.”
Even the author of the Note, The Allocation of Attorney‘s Fees After Mills v. Electric Auto-Lite Co., 38 U.Chi.L.Rev., 316, though sympathetic to the extension of Mills to cover awards of attorney‘s fees in support of public policy, recognizes that a general policy, applicable to all cases, on the award of attorney‘s fees should be adopted, concluding its review of the subject with this comment:
“Logically, one of two things must happen: either judicial discretion to grant fees on policy grounds will result in universal fee shifting from the successful party, or the courts will withdraw to the traditional position, denying any fee transfer without specific statutory authorization. Mills represents an uneasy half-way house between these two extremes.” (Page 336)
We find ourselves in agreement with the conclusion that if such awards are to be made to promote the public policy expressed in legislative action, they should be authorized by Congress
Accordingly, until Congress authorizes otherwise awards of attorney‘s fees in school desegregation cases must rest upon the traditional equitable standards as stated in Bradley v. Richmond School Board (4th Cir. 1965) 345 F.2d 310, which provide ample scope for the award in appropriate cases.
III.
After the above opinion had been prepared but not issued, the Congress enacted
Since this issue of the application of
Were it to be construed as extending to any “final order,” entered as “necessary to secure compliance,” and pending unresolved on the effective date of the Act (which is the plaintiffs’ construction of the sweep of the Section), such Section could not be used as a vehicle to validate this award. This is so because there was no “final order” pending unresolved on appeal on June 30, 1972, to which this award could attach. The only proceeding pending unresolved in this case on May 26, 1971, when the District Court issued its order allowing attorney‘s fees, was the action begun on motion of the School Board itself to require the merger of the Richmond schools with those of the contiguous counties of Chesterfield and Henrico. All orders issued prior to that date in this desegregation action had long since become final
Reversed.
The en banc court holds that this case is not governed by § 718 of Title VII, “Emergency School Aid Act,” of the Education Amendments of 1972.
I.
Because I conclude not only that
II.
I turn to the more important questions of the scope and application of
The text of
In Peggy, while an appeal was pending from a decision of the lower court in a prize case, the United States entered into a treaty with France, which if applicable would have required reversal. The treaty explicitly contemplated that it would be applicable to seizures that had taken place prior to the treaty‘s ratification where litigation had not been terminated prior to ratification. On the basis of the new treaty, the Supreme Court reversed the decision of the lower court. In the opinion of Mr. Justice Marshall, it was said:
It is in the general true that the province of an appellate court is only to inquire whether a judgment when rendered was erroneous or not. But if, subsequent to the judgment, and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied. If the law be constitutional, * * * I know of no court which can contest its obligation. It is true that in mere private cases between individuals, a court will and ought to struggle hard against a construction which will, by a retrospective operation, affect the rights of parties, but in great national concerns, where individual rights, acquired by war, are sacrificed for national purposes, the contract making the sacrifice ought always to receive a construction conforming to its manifest import; and if the nation has given up the vested rights of its citizens, it is not for the court, but for the government, to consider whether it be a case proper for
United States v. Schooner Peggy, supra, 1 Cranch at 109.
Peggy may be interpreted in two ways: Under a narrow interpretation the Court held only that, where the law changes between the decision of the lower court and an appeal, the appellate court must apply the new law if, by its terms, it purports to be applicable to pending cases. The decisional process, under this interpretation, requires the appellate court to examine the intervening law and to determine whether it was intended to apply to factual situations which transpired prior to the law‘s enactment. Since the treaty in Peggy explicitly applied to situations where the controversy was still pending, it followed that the statute should be applied in deciding the case. Certainly the facts of Peggy and much of the language of the opinion of Mr. Justice Marshall support this interpretation.
By a broader interpretation, Peggy may be considered to hold that where the law has changed between the occurrence of the facts in issue and the decision of the appellate court and where the controversy is still pending, the appellate court must apply the new law, unless there is a positive expression that the new law is not to apply to pending cases. This is the interpretation of Peggy which found its final expression in Thorpe. But before turning to Thorpe it is well to consider intervening decisions.
In Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538, 61 S.Ct. 347, 85 L.Ed. 327 (1941), the Court held that a federal appellate court in exercising diversity jurisdiction must follow a state court decision which was subsequent to and contradicted the district court decision. In Carpenter v. Wabash Ry. Co., 309 U.S. 23, 60 S.Ct. 416, 84 L.Ed. 558 (1940), the Court held that the appellate court must apply an intervening federal statute where the case is pending on appeal. However, in Carpenter, the statute explicitly indicated that it was to apply to pending cases. In United States v. Chambers, 291 U.S. 217, 54 S.Ct. 434, 78 L.Ed. 763 (1934), the Court held that indictments returned pursuant to the eighteenth amendment, and before the adoption of the twenty-first amendment, must be dismissed after passage of the twenty-first amendment even though the acts when committed were crimes. See also Ziffrin v. United States, 318 U.S. 73, 63 S.Ct. 465, 87 L.Ed. 621 (1943). Then, in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), the Court drew a firm distinction between those cases where an appeal is still pending and those that are final (“where the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari had elapsed . . . ,” 381 U.S. at 622, n. 5, 85 S.Ct. at 1734). The Court held that Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), applied to pending cases but not to final cases. It discussed the previous decisions to which reference has been made and concluded that “[u]nder our cases * * * a change in law will be given effect while a case is on direct review * * *.” 381 U.S. at 627, 85 S.Ct. at 1736. It should be noted, however, that the Court was by no means consistent in applying this rule after Linkletter. See Desist v. United States, 394 U.S. 244, 256-260, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969) (Harlan, J., dissenting).
In Thorpe, the Housing Authority gave the tenant notice to vacate in August, 1965, but refused to give its reasons for the notice. When the tenant refused to vacate, the Authority brought an action for summary eviction in September, 1965, and prevailed. Actual eviction, however, was stayed during the pendency of the litigation. In 1967, before the Supreme Court decided the case, the Department of Hous-
The difference between Thorpe and Peggy is that the HUD circular did not indicate that it was to be applied to pending cases or to facts which had transpired prior to its issuance. Indeed, the circular stated that it was to apply “from this date” (the date of issuance). 393 U.S. at 272, n. 8, 89 S.Ct. 518. Thus, Thorpe held that even where the intervening law does not explicitly or implicitly contemplate that it would be applied to pending cases, it, nevertheless, must be applied at the appellate level to decide the case. The line of cases from Peggy to Thorpe dictates the application of § 718 in the instant case, irrespective of legislative intent. Simply stated, since the law changed while the case (the lawyers’ fees issue) was still pending before us, the new law applies.
The School Board contends that Thorpe does not erase the long-standing rule of construction favoring prospective application. It argues that Thorpe did not present a retroactivity question since the tenant had not yet been evicted. It places great reliance on the “tenant still residing” language in the opinion. The School Board concludes that since the tenant had not yet been evicted, the HUD circular was not retroactively applied but was currently applied to a still pending eviction. With respect to the legal services in issue in the instant case, the Board argues that the Thorpe rule does not apply since the performance of legal services was a completed act prior to the effective date of § 718.
While the Board‘s premise regarding the interpretation of Thorpe may not be faulted, its analogy is inapt and its conclusion incorrect. True, the rendition of legal services in the instant case had been completed (except for legal services on appeal), but the dispute over who was liable for payment was very much alive, as alive as the dispute over eviction in Thorpe. The proper analogy is not between rendition of legal services and the eviction litigation, but between rendition of legal services and the Housing Authority‘s termination of the lease and notice to vacate. These are the completed acts. What lingers is the dispute over who is right, and it lingers in both cases. Therefore, as in Thorpe, here there is no retroactivity issue. Thorpe governs and § 718 applies unless it is rendered inapplicable because one or more of its provisions has not been met. See Bassett v. Atlanta Independent School Dist. No. 1550, 347 F.Supp. 1191 (E.D.Tex.1972).2
Since Thorpe governs, legislative history is not relevant, unless it unequivocally shows an intention on the part of Congress that the statute not apply to live issues in currently pending cases. The legislative history of § 718 provides no such expression of intent. To the extent that it proves anything, it supports the conclusion that § 718 should apply to live issues in currently pending cases.
Two clauses of § 718 bear on the issue. As originally proposed and reported, § 718 provided for a federal fund of $15 million from which counsel would be paid “for services rendered, and the costs incurred, after the date of enactment * * *.” S. 683, § 11 (Quality Integrated Education Act). The Senate Committee on Labor and Public Welfare reported the bill, with this clause intact, as S. 1557. Sen.Rep.No.92-61. 92nd Cong. 1st Sess. pp. 55-56.
The School Board places great stress on this language as indicating a strictly prospective legislative intent. It fails to point out, however, that the federal funding, as well as the “after the date” clause, were deleted by floor amendment prior to the passage of the Act. This floor amendment can be construed to indicate that Congress’ ultimate intent was indeed the opposite of that urged by the Board. The “after the date” clause and federal funding seem to have gone in tandem. Given the nature of federal appropriation, prospective application would be a sensible requirement. Compare
Secondly, the School Board points to the language in the committee report which refers to “additional efforts,” but the sentence is phrased in the conjunctive. It reads: “$15 million is set aside for additional efforts under this bill and under Title 1 of the Elementary and Secondary Education Act of 1965 * * * and for vigorous nation-wide enforcement of constitutional and statutory protection against all forms of discrimination” (emphasis added). Whether “additional efforts” modifies everything that follows, or just what precedes the conjunction “and“, is debatable and a rather unenlightening inquiry.
Thus, nothing on the face of § 718, or in its legislative history, conclusively manifests a congressional desire that the Thorpe rule applying new legislation to live issues in pending litigation should not prevail. I turn to the question of its precise application.
IV.
Section 718 empowers the court to award counsel fees “in its discretion, upon a finding that the proceedings were necessary to bring about compliance . . . .” The private attorney general rule of Newman v. Piggie Park Enterprises, 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968), governs the court‘s discretion. Under the Piggie Park standard, the court should award counsel fees “unless special circumstances would render such an award unjust.” 390 U.S. at 402, 88 S.Ct. at 966. See Lea v. Cone Mills Corp., 438 F.2d 86 (4 Cir. 1971). The language of § 718 is substantially similar to the counsel fee provisions in § 204(b) of Title II and § 706(k) of Title VII of the Civil Rights Act of 1964,
Although § 718 should be applied to legal services, whenever rendered, in connection with school litigation culminating in an order entered after its effective date (July 1, 1972), § 718 will not support affirmance of the precise award made by the district court in this case. It would, however, support a larger award to compensate for legal services rendered over a longer period.
The district court‘s award was for legal services rendered from March 10, 1970, the date when plaintiff filed a motion for further relief because of the decisions in New Kent County, supra, Alexander, supra, and Carter, supra, to January 29, 1971, the date on which the district court declined to implement plaintiff‘s plan. Manifestly, the entry of that order cannot support an award of counsel fees for services to the date of its entry because the order did not grant relief to the parties seeking to recover fees—a condition precedent to the award of fees as set forth in § 718. But, a recitation of the history of the litigation shows that counsel fees should be awarded for all legal services rendered from March 10, 1970 to April 5, 1971, the date on which the district court entered an order approving the plan under which the Richmond schools are presently being operated, and thereafter for legal services rendered in this appeal.
The essential dates in the history of the litigation follow: The motion for further relief was filed March 10, 1970. Appended thereto was an application for an award of reasonable attorneys’ fees. After admitting that its schools were not then being constitutionally operated, the Board filed a plan (Plan 1) to bring the operation of the schools into compliance with the Constitution. After hearings, the district court disapproved Plan 1 (June 26, 1970) and directed the preparation and filing of a new plan. Plan 2 was filed July 23, 1970, and hearings were held on it. It, too, was disapproved as an inadequate long-range solution. But, because there was insufficient time to prepare, file and consider another plan before the beginning of the next school term, Plan 2 was ordered into effect on August 17, 1970, for the term commencing August 30, 1970, and the Board was also ordered to make a new submission. The Board appealed from the order implementing Plan 2 and obtained a delay in briefing from this court. The appeal was never heard, because, having been effectively stayed, it was rendered moot by later orders. Before Plan 3 was filed, plaintiffs sought further relief for the second semester of the 1970-71 school year, but Plan 3 was filed (January 15, 1971) before they could be heard and their motion was denied on January 29, 1971, the terminal date for the allowance of compensation in the order appealed from. Plan 3 contained three parts—it was a restatement of Plans 1 and 2, and it contained a new third proposal. The Board urged the adoption of the Plan 2 aspect of Plan 3; but, on April 5, 1971, the district court ordered into effect for the 1971-72 school year the new third proposal. This is the plan under which the Richmond schools are presently operating.3
To this summary there need only be added that on August 17, 1970, the district court ordered the parties to confer on the subject of counsel fees. Plaintiffs filed on March 5, 1971, a memorandum in support of their request for an allowance; the court, on March 10, 1971, ordered that further memoranda and evidentiary materials with regard to the motion for counsel fees be filed; and these were filed on March 15, 1971. The order directing the payment of counsel fees was entered May 26, 1971, after the entry of the order approving and implementing Plan 3.
The majority concludes that § 718 was rendered inapplicable because the order appealed from was entered May 26, 1971, a date on which there was no “final order” entered as “necessary to secure compliance.” This conclusion seems to me to be overly technical and not in accord with the facts.
The request for counsel fees was made when the motion for additional relief was filed on March 10, 1970. While very much alive throughout the proceedings, properly, the motion was not considered until the district court could approve a plan for a unitary system of schools for Richmond which was other than an interim plan. That approval was forthcoming on April 5, 1971, and promptly thereafter the district court addressed itself to the question of allowance of counsel fees. The approval of a permanent plan was not easily arrived at. Because the proposals of the Richmond School Board were constitutionally unacceptable, except on an interim basis, this approval was arrived at in several steps: (a) disapproval of Plan 1, (b) interim approval of Plan 2, (c) disapproval of additional interim relief, and (d) approval of Plan 3.
While I therefore conclude that there was a sufficient nexus between the request for counsel fees and the entry of a final order necessary to obtain compliance with the Constitution so as to warrant invoking § 718, I think that § 718 requires that the district court redetermine the allowance. As previously stated, the district court made an allowance for services to the date that plaintiffs’ request for additional interim relief was denied. If the various steps for arriving at an overall desegregation plan for Richmond are severed, § 718 would not permit an allowance for services leading to the order of January 29, 1971, since on that date plaintiffs were denied the additional interim relief they prayed and § 718 permits an allowance only to the prevailing party. However, plaintiffs would be entitled to an allow-
No. 72-2838 Summary Calendar.*
United States Court of Appeals, Fifth Circuit.
Jan. 23, 1973.
Donald L. Kraemer, Huntsville, Tex., for petitioner-appellant.
Crawford Martin, Atty. Gen., Robert Darden, Asst. Atty. Gen., E. Bruce Curry, Asst. U. S. Atty., Austin, Tex., for respondent-appellee.
Before BELL, DYER and CLARK, Circuit Judges.
PER CURIAM:
This case comes to this court on an appeal from the denial of a motion for rehearing which motion was filed over four years after entry of the judgment of dismissal on which rehearing was sought.
The motion for rehearing was not timely filed; hence the time for filing notice of appeal was not extended. Thus a timely notice of appeal is lacking and the appeal must be dismissed for want of jurisdiction. See Albers v. Gant, 5 Cir., 1970, 435 F.2d 146.
Dismissed.
* Rule 18, 5 Cir., see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409.
Notes
Attorney Fees
Sec. 718. Upon the entry of a final order by a court of the United States against a local educational agency, a State (or any agency thereof), or the United States (or any agency thereof), for failure to comply with any provision of this title or for discrimination on the basis of race, color, or national origin in violation of title VI of the Civil Rights Act of 1964, or the fourteenth amendment to the Constitution of the United States as they pertain to elementary and secondary education, the court, in its discretion, upon a finding that the proceedings were necessary to bring about compliance, may allow the prevailing party, other than the United States, a reasonable attorney‘s fee as part of the costs.
It must be recognized that there are some discordant notes in the case law: In Soria v. Oxnard School Dist. Board, 467 F.2d 59 (9 Cir. 1972), it was held, in a per curiam opinion, that § 803 of the Education Amendments of 1972, which postponed the effectiveness of busing orders for the purpose of achieving racial balance until all appeals have been exhausted, had no application to a case pending at the time of its effective date in which busing, pursuant to an integration plan, is already in operation. There is no mention, however, of Thorpe.
In Greene v. United States, 376 U.S. 149, 84 S.Ct. 615, 11 L.Ed.2d 576 (1964), the Court refused to apply an intervening Department of Defense regulation to a pending case, reasoning in retroactivity language. But this case was obviously one where “retroactivity” would work “manifest injustice.” See Thorpe, supra at 282 n. 43, of 393 U.S., 89 S.Ct. 518. Cases construing the