Bradley v. School Board of the City of Richmond Brief for the United States as Amicus Curiae

    N o . 7 2 -1 3 2 2

J it the JSujireme dfoart of the ®nttei States
O cto ber  T e e m , 197B

C a ro ly n  B r a d ley , e t  at,., p e t it io n e e s

' ■ V.

T h e  S c h o o l  B oaed  o f  t h e  C it y  o f  R ic h m o n d , e t  a l .

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
APPEALS FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

ROBERT H. BORK,
Solicitor General,

3. STANLEY POTTINGER,
Assistant Attorney General, 

LAWRENCE G. WALLACE,
Deputy Solicitor General, 

GERALD P. NORTON,
Assistant to the Solicitor General, 

JEREMY I. SCHWARTZ,
Attorney,

Department of Justice, 
Washington, D.C. $0580.



I N D E X

Page

Question presented________________________  1
Interest of the United States________________  1
Statement_______________________________  3
Introduction and summary of argument________  5
Argument:

I. Federal Courts Have Authority, In The 
Absence Of Legislation To The Con­
trary, To Award Attorneys’ Fees To A 
Plaintiff Who As A “Private Attorney 
General” Benefits A Class Or Group By 
Vindicating Constitutional Or Other 
Legal Obligations Of The Defendant To
The Plaintiff And Others___________  7

II. There Was No Statutory Bar To The 
District Court’s Award Of Attorneys’
Fees In This Case________________  12

Conclusion_______________________*----------  14
CITATIONS

Cases:
Arcambel v. Wiseman, 3 Dali. 306________ - 7
Boddie v. Connecticut, 401 U.S. 371___-_____ 10
Bradley v. School Board, 345 F. 2d 310, re­

manded on other grounds, 382 U.S. 103__  3
Brown v. Board of Education, 349 U.S. 294— 11
California Motor Transp. Co. v. Trucking Un­

limited, 404 U.S. 508 _ „_________ .--------  10
Centro.i R.R. & Banking Co. v. Pettus, 113 U.S.

116_______________________________  8
Day v. Woodworth, 13 How. 363__________  7

a)
527 - 662— 71 -1



IX

Cases—Continued
Fleischmann Distilling Corp.v. Maier Brewing Page

Co., 386 U.S. 714___________________  8,13
Green v. County School Board, 391 U.S. 43(L_ 3, 4
Hall v. Cole, 412 U.S. 1_________5, 6, 8, 9, 10, 12
Hauenstein v. Lynham, 100 U.S. 483.______  7
Hecht Co. v. Bowles, 321 U.S. 321__:________ 14
Knight v. Auciello, 453 F. 2d 852____ ____  9
Lee v. Southern Home Sites Corp., 444 F. 2d

143_______________________________  9
Mills v. Electric Auto-Lite Co., 396 U.S. 375__8, 9, 12 
Mitchell v. DeMario Jewelry, Inc., 361 U.S.

2 8 8 ..._______ ______ .. . .___________  14
Newman v. Biggie Park Enterprises, Inc., 390

U.S. 400_____________________ _____2, 9, 13
Northcross v. Board of Education, 412 U.S. 427. 13
Oelrichs v. Spain, 15 Wall. 211..;_________  7
Porter v, Warner Holding Co., 328 U.S. 395.. 14
Sprague v. Ticonic Natl Bank, 307 U.S. 161.. 8
Thompson v. School Board, 472 F. 2d 177___  5
Trafficante v. Metropolitan Life Ins. Co., 409

U.S. 205____________________________  2, 9
Trustees v. Greenough, 105 U.S. 527_______  8
Virginian Ry. Co. v. System Federation, 300

U.S. 515_______________________ . . . .  14
Statutes:

Civil Rights Act of 1964, 78 Stat. 241, as 
amended, 42 U.S.C. 1981, et seq.:

42 U.S.C. 1983___________________  7,13
42 U.S.C. 2000a-3(b)______________  2,13
42 U.S.C. 2000c____________________  1, 2
42 U.S.C. 2000c-6_________________ 11
42 U.S.C. 2000d__________________  11
42 U.S.C. 2000e~5(k)______________  2,13
42 U.S.C. 3612___________________  2



I ll

Statutes—Continued
Civil Rights Act—Continued Pllgt

Emergency School Aid Act of 1972, 20
U.S.C. (Supp. II) 1617____________  5,13

15 U.S.C. 15______________________ 13
15 U.S.C. 77k(e)___________________ 13
28 U.S.C. 2412____________________  2, 12
29 U.S.C. 440_____________________  9
29 U.S.C. 464_____________________  9
29 U.S.C. 482_____________________  9
29 U.S.C. 521(a)___________________ 9

Miscellaneous:
Rule 57(7), Rules of the Supreme Court____ 6
Fed.R.Civ.P.:

Rule 37 (a)_________________   6
Rule 56(g)______ i___ ______ ______  6



<ln tfe  J b tp tm e  fljnart of the I t t i f a t  S ta te s
O cto ber  T e r m , 1973

jSTo. 72-1322

C a r o ly n  B r a d ley , e t  a l ., p e t it io n e r s

v.
T h e  S c h o o l  B oard o f  t h e  C it y  o f  R ic h m o n d , e t  a l .

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
APPEALS FOR THE FOURTH CIRCUIT

brief for the united states as amicus curiae

QUESTION PRESENTED

Whether the district court had authority to award 
attorneys’ fees for the plaintiffs’ successful efforts in 
obtaining injunctive relief to require their school 
board to adhere to its constitutional and statutory 
duty to desegregate the public schools.

INTEREST OP THE UNITED STATES

Lawsuits by private parties are an important sup­
plement to the program of the United States for en­
forcing Title IV of the Civil Rights Act of 1964, 42 
U.S.C. 2000c, as well as other civil rights statutes. 
School desegregation suits are private in form only;

(i)



2

the relief obtained is in vindication of a national 
policy of high priority. The availability of attorneys’ 
fee awards necessarily expands the scope of enforce­
ment and augments the resources of the federal gov­
ernment in civil rights cases. Cf. Traffic ante v. Metro­
politan Life Ins. Co., 409 U.S. 205, 210.

Congress has recognized that the Nation must in 
large measure rely upon private litigation as a means 
of securing compliance with civil rights laws and the 
constitutional requirements they reflect. See Newman 
v. Piggie Park Enterprises, Inc., 390 U.S. 400, 401. 
For example, Congress has expressly limited the At­
torney General’s authority to sue in the school deseg­
regation area to instances where the Department of 
Justice has received a written complaint and certifies 
that the complainant cannot initiate and maintain liti­
gation on his own. 42 U.S.C. 2000c. Also, Congress has 
expressly authorized the award of counsel fees in several 
civil rights statutes. See, e.g., 42 U.S.C. 2000a-3(b) 
(public accommodations), 2Q00e-5(k) (employment), 
and 3612 (housing).1 The efficacy of private litigation in 
these fields has significant implications for the re­
sponsibilities and resources of the United States.

The United States, however, is not likely to be di­
rectly affected by the decision in this case in its ca­
pacity as a litigant because Congress has provided 
that, except where specifically authorized by statute 
(see, e.g., n, 2, inf ra) attorneys’ fees shall not be included 
in a judgment for costs in a civil action by or against the 
United States or any agency or official thereof acting in 
his official capacity. 28 U.S.C. 2412.

1 See also n. 2, infra.



3
STATEMENT

The facts are described in detail in the briefs of the 
parties. We summarize here only the procedural his­
tory of this litigation.

This class action, commenced in 1961, sought equi­
table relief requiring the School Board of the City of 
Richmond, Virginia, to desegregate the Richmond 
public schools (App. 113a, 160a-161a, n. 1). The case 
before this Court concerns solely the propriety of the 
award to petitioners of attorneys’ fees for desegrega­
tion litigation concerning the schools in Richmond for 
the period from March 10, 1970, to January 29, 1971 
(App. 121a, n. 5).

In  a prior stage of this litigation the district court 
had approved a “freedom of choice” plan to desegre­
gate the Richmond public schools. See Bradley v. 
School Bd., 345 P. 2d 310 (C.A. 4), remanded on 
other grounds, 382 U.S. 103. On May 27, 1968, how­
ever, this Court held that freedom of choice plans 
were constitutionally inadequate unless they actually 
resulted in a unitary desegregated school system, and 
the Court imposed on school hoards the affirmative 
duty to “ come forward” with realistic plans to 
achieve such systems “now.” Green v. County School 
Bd., 391 U.S. 430, 438-441. Despite the apparent in­
adequacy of the then-existing plan, the unconstitu­
tionality of which was eventually conceded (App. 
114a), the respondent school board failed to adopt a 
new plan that would satisfy the applicable constitu­
tional and statutory requirements.

Accordingly, on March 10, 1970, petitioners moved 
in the district court (App. 25a) for the replacement



4

of Richmond’s freedom of ehoiee plan with a plan 
that complied with this Court’s decision in Green v. 
County School Board. The motion included a request 
for attorneys’ fees. Between that date and May 26, 
1971, when the district court ruled on the motion 
for attorneys’ fees, the court had disapproved two 
plans submitted by the respondents (App. 115a-118a), 
and had finally accepted a third for the 1971-1972 
school session (App. 118a). The court determined that, 
on the record before it, an award of attorneys’ fees 
in the sum of $43,355 was justified by the respondents’ 
conduct both in making necessary petitioners’ 1970 
reopening of the case and in the course of the ensu­
ing phase of this litigation (App. 128a-135a). Alter­
natively, the district court held that the fee award was 
justified by the fact that the petitioners had acted as 
“private attorneys general” in securing respondents’ 
compliance with important constitutional and statu­
tory obligations, this vindication of paramount fed­
eral policies having benefitted not only the petitioners 
but an entire class (App. 128a, 135a-140a).

The court of appeals (with one judge dissenting) 
reversed, holding that the district court was without 
authority to award attorneys’ fees. The court held, 
first, that the respondents’ conduct did not consti­
tute the “ obdurate obstinacy” which it said was a 
requisite for an attorney fee award in school desegre­
gation cases (App. 161a-177a). The court further 
concluded that, in the absence of express statutory 
authority, there is no other basis on which attorneys’ 
fees could properly be awarded (App. 177a-186a).



r>

Finally, employing the maxim expressio unium est 
exclusio cilterius, the court relied upon the fact that a 
provision for attorneys’ fees in school desegregation 
eases was not included in the Civil Rights A ct of 1964 as 
indicating a congressional intent to constrict the avail­
ability of fee awards (App. 180a-181a).2

In this Court the respondents seek to defend the 
decision of the court of appeals by contending that 
desegregation eases should be an exception to the 
principles established by decisions of this Court 
and other courts authorizing attorney fee awards on 
grounds other than the “conduct” of the defendant 
(Resp. Br. 5-7, 23-24, 26).

INTRODUCTION AND SUMMARY OR ARGUMENT

The court of appeals erred in concluding that, in 
the absence of express statutory authority, the only 
basis for an award of attorneys’ fees in a school de­
segregation case is conduct on the part of the defend­
ants amounting to “obdurate obstinacy.” 3 The dis-

2 The panel in this case also adopted the court’s en banc 
decision in Thompson v. School Boards 472 F, 2d 177 (C.A. 
4), that Section 718 of the Emergency School Aid Act of 
1972, 20 U.S.C. (Supp. I I )  1617, does not support an award 
of attorneys’ fees for legal services rendered prior to June 30, 
1972 (App. 186a-188a). Since we believe that the district 
court’s award of attorneys’ fees was proper on other grounds 
when it was made (prior to the enactment of Section 718), 
we do not discuss that issue.

3 As this Court noted in Hall v. Cole, 412 U.S. 1, 5, 15, there 
is a line of authority for awarding attorneys’ fees based on the 
conduct of a party in a particular case, either before or during 
the litigation. We do not rely upon this rationale in urging 
reversal of the court of appeals’ decision. The “bad faith,”' 
“obdurate obstinacy,” or “conduct-oriented” rationale is essen-

527 - 662— 73 - -2



6

trict court’s award of attorneys’ fees in this case 
should have been sustained under principles previ­
ously established by this Court and other courts 
concerning the inherent equitable authority of federal 
courts to award attorneys’ fees in various circum­
stances in the absence of explicit statutory authoriza­
tion.

Thus, an award of attorneys’ fees may be warranted 
where—as here—the plaintiff’s litigation produces sig­
nificant common benefits, pecuniary or otherwise, not 
only for the plaintiff but also for others in a group or 
class, thereby making it appropriate that the costs of 
obtaining the benefit be shared through the award of 
fees. Support for the fee award in this ease can also 
be found in cases authorizing such awards where—as 
here—the plaintiff acts as a private attorney general 
in vindicating important federal constitutional or 
statutory policies.

The court of appeals’ inference, from the lack of
an express provision for attorneys’ fees in related
tially punitive in nature. Ball v. Cole, supra, 412 U.S. at 5. I t  
is seriously limited as a means for inducing attorneys to handle 
meritorious cases challenging illegal conduct for persons unable 
to afford an attorney, for there is insufficient predictability as 
to the availability of a fee award. The “bad faith” rationale is 
related to other similar sanctions used to regulate the conduct 
of parties and attorneys. E.g., Fed.R.Civ.P. 37(a), 56(g); cf. 
Pule 57 (7) of the Rules of this Court. The propriety of its 
application in a particular case calls for a detailed review of 
conduct before or during litigation, and courts may be reluctant 
to award fees if to do so they must brand one side with an 
opprobrious characterization. In  many, perhaps most, of the 
cases in which attorneys’ fees have been awarded on this basis, 
an award would have been warranted under the “common bene­
fit” or “private attorney general” rationales discussed later in 
the text.



7

legislation, that a fee award is barred in this case, is 
contrary to this Court’s decisions requiring either an 
explicit limitation of the power of federal courts to 
award this traditional equitable remedy or such a de­
tailed and intricate scheme of remedies that such a 
limitation may fairly be implied. The finding of an 
implied statutory bar was particularly unwarranted 
here, where the suit was filed pursuant to the broad 
grant of equitable jurisdiction in the federal courts 
under 42 U.S.C. 1983 to “redress” deprivations of con­
stitutional rights.

A RG U M EN T

I. FEDERAL COURTS HAVE AUTHORITY, IN THE ABSENCE 
OF LEGISLATION TO THE CONTRARY, TO AWARD ATTOR­
NEYS’ FEES TO A PLAINTIFF WHO AS A “ PRIVATE ATTOR­
NEY GENERAL”  BENEFITS A CLASS OR GROUP BY VINDI­
CATING CONSTITUTIONAL OR OTHER LEGAL OBLIGATIONS 

v. OF THE DEFENDANT TO THE PLAINTIFF AND OTHERS

1. The court of appeals’ basic premise in this case— 
that, in the absence of statutory authority, attorneys’ 
fees may be awarded only in the event of conduct 
constituting “obdurate obstinacy”—is contrary to the 
decisions of this Court. Only last term, this Court 
reiterated that while under “the traditional American 
rule” attorneys’ fees may not ordinarily be awarded 
(in the absence of statutory or contractual authority) 
to a successful plaintiff in an action at law between pri­
vate parties for damages,4 “ federal courts, in the 
exercise of their equitable powers, may award attor-

i E.g., Arcambel v. Wiseman, 8 Dali. 306; Day v. Wood- 
worth, 18 How. 363; Oelrichs v. Spain, 15 Wall. 211; Hauen- 
stein V. LynKam, 100 U.S. 483.



8

neys’ fees when the interests of justice so require.” 
Hall v. Cole, supra, 412 U.S. at 4—5. Derived from “the 
original authority of the chancellor to do equity in 
a particular situation” (Sprague v. Ticonic Nat’l 
Bank, 307 U.S. 161, 166; see, e.g., Trustees v. Green- 
ough, 105 U.S. 527, 532), this is an inherent power 
to be exercised in accordance with principles of equity. 
412 U.S. at 5. Beyond indicating that cases warrant­
ing an award of attorneys’ fees are likely to be the 
exception, rather than the rule (see Mills v. Electric 
Auto-Lite Co., 396 U.S. 375, 391-392), this Court has 
not attempted to circumscribe the outer limits of this 
power, except, of course, to recognize that it may be 
limited by statute. E.g., Fleischmann Distilling Corp. 
v. Maier Brewing Co., 386 U.S. 714. Rather, as this 
Court recognized in Hall v. Cole, “ federal courts do 
not hesitate to exercise this inherent equitable power 
whenever ‘overriding considerations indicate the need 
for such a recovery.’ ” 412 U.S. at 5.

One line of decisions has held the award of attor­
neys’ fees to be proper where the plaintiff’s litigation 
has produced significant benefits for others besides the 
plaintiff, such as by preventing or undoing illegal 
action by the defendant and thereby protecting, cre­
ating or recovering a common fund (Trustees v. 
Greenough, supra; Central R.B. & Banking Co. v. 
Pettus, 113 U.S. 116) ; by establishing a precedent 
that will permit others to require the defendant to 
respect their rights (Sprague v. Ticonic Nat’l Bank, 
■supra; or by establishing a violation of law on a 
matter as to which the defendant owes a fiduciary



9

duty to the plaintiff and others. E.g., Mills v. Electric 
Auto-Lite Co., supra; Hall v. Cole, supra. The deci­
sions in Mills and IIall establish that the “benefit55 
produced by the plaintiff’s litigation need not be 
pecuniary in nature and need not have monetary 
value. E.g., Mills, supra, 396 U.S. at 392, 395-396; 
II all, supra, 412 U.S. at 5-6, n. 7.

Under another line of authority, attorneys’ fees 
have been awarded where the plaintiff acts as “pri­
vate attorney general” (cf. Newman v. Piggie Park 
Enterprises, Inc., supra, 390 U.S. at 402) in vindicat­
ing statutory policy or constitutional commands, 
thereby augmenting otherwise limited governmental 
enforcement resources, E.g., Lee v. Southern Home 
Sites Covp., 444 F. 2d 143 (C.A. 5); Knight v. 
Auciello, 453 F. 2d 852 (C.A. 1) ; cf. Mills v. Electric 
Auto-Lite Co., supra, 396 U.S. at 396. See, also, Traffi- 
cante v. Metropolitan Life Ins. Co., supra, 409 U.S. at 
211. This Court has previously recognized the important 
role played by the availability of an award of attorneys’ 
fees in eases where the authorized lawsuits by private 
parties are likely to be expensive to maintain to a suc­
cessful conclusion and offer little or no promise of finan­
cial gain to the plaintiffs. Thus, in Hall v. Cole, supra, in­
volving provisions authorizing private suit under the 
federal labor laws,6 the Court noted that to deny attor-

5 The provisions involved in Hall were excluded from the 
enforcement authority of the Secretary of Labor (see 29 U.S.C. 
521(a); cf. 29 U.S.C. 440, 464, 482) and were therefore enforei- 
b!e only by an aggrieved private party. Because the Court 
affirmed the attorney fee award in Hall on the “common bene­
fit” rationale, it had no occasion to rely upon the “private at­
torney general” rationale. 412 U.S. at 5-6, n. 7.



10

ney fees could be “tantamount to repealing the Act it­
self by frustrating its basic purpose;” without the op­
portunity to recover counsel fees “the grant of federal 
jurisdiction is but a gesture, for few * * * could avail 
themselves of it.” Id. at 13.c

2. The foregoing principles were correctly applied 
by the district court in its determination that attorneys’ 
fees should be awarded here. The district court noted 
that, despite the obvious public importance of litigation 
to enforce constitutional protections, a school desegre­
gation suit is the “sort of enterprise * * * on which any 
private individual should shudder to embark” in view 
of the cost, unlikelihood of damages, and possible hos­
tility toward counsel involved in such unpopular causes 
(App. 138a). I t noted further that the resources of 
the opposing parties are disproportionate, since “ [f]ew 
litigants—even the wealthiest—come into court with 
resources at once so formidable and so suited to the liti­
gation * * *” as was available to the tax supported 
respondents (App. 135a-136a). Moreover,

6 A characteristic of many of the eases in each of these lines 
of authority is that the plaintiff represented a minority group 
or interest and only by resort to the courts could the plaintiff 
ensure that the defendants fulfilled their fiduciary or other 
obligations to persons in the plaintiff’s situation. Particularly 
where the defendant is a governmental entity, such litigation 
may be regarded as a means of offsetting the possibly limited op­
portunities for minority interests to assure through the political 
process that their governing bodies fulfill their duties to them, 
as part of their obligations to the general community. The 
availability of an attorney fee award in such a case would 
presumably have the desirable effect of minimizing some bar­
riers to this exercise of constitutional rights. Of- California 
Motor Tramp. Co. v. Trucking Unlimited, 404 U.S. 508, 513, 
515; Boddie v. Connecticut, 401 U.S. 371.



11

[t j lie private lawyer in such a case most ac­
curately may be described as a “private attor­
ney general.” Whatever the conduct of defend­
ants may have been, it is intolerably anomalous 
that counsel entrusted with guarantying the ef­
fectuation of a public policy of nondiscrimina­
tion as to a large proportion of citizens should 
be compelled to look to himself or to private 
individuals for the resources needed to make 
his proof. The fulfillment of constitutional 
guaranties, when to do so profoundly alters a 
key social institution and causes reverberations 
of imtraceable extent throughout the commu­
nity, is not a private matter. * * * [T]he pay­
ment of fees and expenses in class actions like 
this one is a necessary ingredient of * * * a 
remedy. [App. 139a-140a.]T

Moreover, by this suit petitioners have benefited the 
respondent school officials and the public at large by 
bringing about the elimination of unlawful, discrim­
inatory practices from the schools. They have thus

7 When this litigation was instituted in 1961, actions by pri­
vate parties provided virtually the only means of enforcement 
of the constitutional constraints against racially segregated 
schools. Although the enforcement powers of the federal gov­
ernment have been enlarged since then (e.g.. 42 U.S.C. 2000c-6, 
2000c! et seq.), actions by private parties have made and will 
no doubt continue to make an indispensable contribution to 
the effort to ensure that state and local governments observe 
their obligations under the Constitution and federal civil rights 
laws. Without deprecating in any way what has been accom­
plished by private litigation in this field, it is also fair to sug­
gest that the desegregation of the Nation’s public schools re­
quired by Brown v. Board of Education, 349 U.S. 294, 301, 
may well have been achieved with far swifter “deliberate speed” 
if attorneys’ fee awards had more readily been perceived to be 
available in such cases.



12

benefited the people of Richmond by vindicating their 
Fourteenth Amendment rights-—just as the corporate 
stockholders in Mills were benefited by the plaintiffs’ 
protection of their suffrage rights and the union mem­
bers in Hall were benefited by the plaintiff’s protec­
tion of their freedom of speech. Requiring the pub­
licly financed school board to reimburse petitioners’ 
attorneys’ fees out of its funds “simply shifted the 
costs of litigation to ‘the class that has benefited from 
them and that would have had to pay them had it 
brought the suit.’ ” Hall v. Cole, supra, 412 TT.S. at 7.

II. THERE W AS NO STATUTORY BAR TO THE DISTRICT 
c o u r t ’s AWARD OF a t t o r n e y s ’ FEES IN THIS CASE

The court of appeals apparently concluded that an 
award of attorneys’ fees in this case was barred by 
the failure of Congress to include in the Civil Rights 
Act of 1964 any specific provision authorizing attor­
neys’ fees' in school desegregation cases (App. 180a- 
181a). That conclusion, however, was contrary to this 
Court’s decisions concerning statutory preclusion of 
attorney fee awards.

While it is unquestioned that Congress can limit a 
federal court’s inherent equitable authority to award 
attorneys’ fees, a court ought not conclude that its 
power has been limited in the absence of “a definitive 
and absolute setting of the Congressional face against 
the giving of such incidental relief by the courts 
where compatible with sound and established equitable 
principles.” 8 Hall v. Cole, supra, 412 U.S. at 12. As 
indicated by Hall and Mills v. Electric Auto-Lite

8 E.g., 28 TJ.S.C. 2412, discussed m/pra, p. 2.



13

Co., supra, 396 U.S. at 390-391, such a preclusion 
should not be inferred from the mere fact that other 
provisions of the legislation in question or related 
legislation (see pp. 2, 5, supra) do expressly deal with 
attorney fee awards. Implied preclusion may be found, 
of course, where Congress has so “ meticulously de­
tailed” a set of such “intricate remedies” for a stat­
utory cause of action that it may reasonably be 
concluded that an award of attorney fees was meant 
to be excluded. E.g., FleiscJmvann Distilling Corp. v. 
Maier Brewing Co., supra, 386 U.S. at 719.115

Here, petitioners’ cause of action derives from the 
Constitution and from 42 U.S.C. 1983, neither of 
which contains any basis for concluding that attor­
ney fee awards are precluded in such cases. To 
the contrary, Section 1983 provides broadly that a 
person who has been deprived of rights, privileges, 
or immunities secured by the Constitution and laws 
may obtain “redress” in an action at law, suit in

9 Our position does, not suggest that an express statutory 
provision for attorneys’ fees (such as Congress has now 
enacted in this field, see n. 2, supra) is superfluous. Such pro­
visions may make fee awards available in cases such as private 
damage actions where they would otherwise not ordinarily 
be available under traditional equitable principles {e.g., 15 
U.S.C. 77k(e)); they may make such awards mandatory where 
a plaintiff prevails {e.g., 15 U.S.C. 15); they may impose a 
particular standard (e.g., 20 U.S.C. (Supp. II)  1617 and 
42 U.S.C. 2000a-3(b), 2000e-5(k), said by this Court to call 
for an award of fees to a successful plaintiff “unless special 
circumstances would render such an award unjust,” Newman 
v. Piggie Park Enterprises, Inc., supra,, 390 U.S. at 402; 
Northeross v. Board of Educ., 412 U.S. 427, 428); or they 
may serve simply to emphasize the view of Congress that such 
awards may be particularly appropriate in the type of case 
covered by such a provision.



equity or other proper proceeding. The express grant 
of equity jurisdiction is significant because this Court 
has held that under such a grant of jurisdiction a 
court may fashion ail}7 remedy that would be appro­
priate in the exercise of equitable jurisdiction (see, 
e.g., Mitchell v. DeMario Jewelry, Inc., 361 U.S. 
288, 290-292; Porter v. Warner Holding Co., 328 
U.S. 395, 399-402; Hecht Co. v. Boivles, 321 U.S. 
321, 329-330), especially in litigation not strictly pri­
vate in nature. See Virginian By. Co. v. System Fed­
eration, 300 U.S. 515, 552.

There was, accordingly, no statutory bar to the 
district court’s award of attorneys’ fees in this case.

CONCLUSION

For the foregoing reasons, the judgment of the 
court of appeals should be reversed.

Respectfully submitted.
R obert  H .  B oric,

Solicitor General,
J. S t a n l e y  P o t t in g e r , 
Assistant Attorney General. 
L a w r e n c e  (>. W a l l a c e , 

Deputy Solicitor General. 
G era ld  P .  ’N o rto n ,

Assistant to the Solicitor General. 
J e r e m y  I .  S c h w a r t z ,

Attorney.
N o v em b e r  1973.