Bradley v. School Board of the City of Richmond Brief for the United States as Amicus Curiae
Public Court Documents
November 1, 1973

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Brief Collection, LDF Court Filings. Bradley v. School Board of the City of Richmond Brief for the United States as Amicus Curiae, 1973. 3e0c9fa8-ca9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/1be4a2db-f4e0-46bf-8dd4-8b187eabe919/bradley-v-school-board-of-the-city-of-richmond-brief-for-the-united-states-as-amicus-curiae. Accessed July 10, 2025.
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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.