Scott v Winston Salem Board of Education Brief for Appellants

    ;-T t ::u ,

irrr • .. c api

(•O! TilE YOUR'iN CIRCUIT 

1V0. 75—305S

c . s c o t?, <-.t ai..,

Piaiiitirf£ -Appell&ncs,

V! ; £S VO-T- J 'AI.EM/>• 0 RSYTH COUNTY 
• T&S&HD 01 EDUCATION, eh. a L f

Def er-davits-App; 'ller.o.

Appeal NrO’-. "faited States District Court;
The diddle District Of North Carolina 

•/. i - it-1 o> a--0 a 1 ora Div is ten

'■ rr.*r : i .r ....

POR
o'. ~rr.r_r n- •.rt.: ■

lYPEiiANTS
i.t'rr zz rotr

J. LeVOKNE CHAMBER,*
ChaiPberu , St&ir. & Fer9u.sc:?
. 951 S. In( • ■ Boulevard 
Charlotte, Worth Carolina. 20202

JACK GREE1-TBB RG 
JAKES m . FABRIC?, III 
NORMAN J. OH&CHRIN 

10 Coiunlrus Circle 
Hew York, New York 100x2
.01 eys f €•>r ■ Pi air ;



INDEX

Page

Issue Presented For R e v i e w..... ......................... 1

Statement of the Case .................................... 2

Statement of Facts .......... .............................  3

Argument

I. Section 718 Requires The Award Of 
Counsel Fees In This Case And There 
Are No Special Circumstances Present 
In This Case Which Would Render An 
Award Of Attorneys1 Fees Unjust.......... 13

II. The Doctrines Of Res Judicata, Waiver 
And Estoppel Are Inapplicable To This 
Case Because The Issue Of Counsel Fees 
Was Pending On Both The-Effective 
Date Of Section 718 And On The Date 

( O p Ip i f c  Counsel
Incurred From October 1968 To June 
1972......................... .......... . 20

A. Plaintiffs have repeatedly
pressed their claim to counsel 
fees and have not waived the 
claim during the course of this 
litigation.... ........................ 20

B. Plaintiffs' claim'for an award of 
counsel fees for the period prior 
to the effective date of Section 
718 is not barred by the doctrine 
of res judicata because the 
District Court's September 19,
1973 order dealt only with counsel
fees for an appeal to this court....  22

III. The Bradley Decision Makes §718 Appli­
cable To All Cases In Which The Issue 
Of Counsel Fees Was Pending Resolution 
On Its Effective- Date, And Is Not 
Limited To Cases In Which The Specific 
Issue Was Pending Resolution On Appeal 
At That Time.............................. 26

Conclusion 30



Table of Authorities

Cases :

Paqe

Allegrini v. DeAngelis, 68 F. Supp. 684 (E.D.
Pa. 1946,', aff' d. 161. F.2d 184 (3d Cir.
1947) ........................................ .  18n, 21n, 22n, 25n

Baxter v. Savannah Sugar Refining Corp., 495
F . 2d 437 (5th Cir. 1974) ................... ..... 18n

Bell v. School Bd. of Powhatan County, 321
F .2d 494 (4th Cir. 1963) . .................. .  13n

Bradley v. School Bd. of Richmond, 416 U.S. 696
(1974) ........................... ................ .  2, 3, 10, 12, 14, 

15, 16n, 19, 20n, 
21, 23n ,  26 ,  27, 
28, 29

Brewer v. School Bd .  of Norfolk, 500 F.2d
1129 (4th Cir. 1974) ................. .......... . 2 9n ,  30

T9 t r ’  c n ▼ T T5 i' s  n  v* ■C C  /~\ "1 Z- ' /'.w r -  ® V* Q p  -f - * ft <-.1-. •! 1 r --
i -S  v t .J  V • Vwi kJ  O.. U ' - i i U  J  i- V_L U11 J_ O  O  J_ i ' lU J J X X C .  ;

402 U.S. 33 (1971) .  ............................................ .....  6n ,  16

F.D. Rich Co., Inc. v. Industrial Lumber Co.,
417 U.S. 116 (1974) ..........................................................................................................................................  13n

Gates v. Collier, 489 F.2d 298 (5th Cir. 1973),
pending on petition for rehearing en banc . . . 19n

Hall v. Cole, 412 U.S. 1 (1973) ...................................................................................................... 19n

Incarcerated Men of Allen County v. Fair, No.
74-1052 (6th Cir., Nov. 13, 1974) _______________________________. 19n

Mills v. Electric Autolite Co., 396 U.S. 375 (1970) 19n

Moody v. Albemarle Paper Co., 474 F.2d 134 (4th
Cir. 1973) ..................................... 18n

Nesbit v. Statesville City 3d. of Educ., 418 F.2d 
1040 (4th Cir. 1969) .......................... 4n

Newman v. Piggie Park Enterprises, 390 U.S. 400
(1968) ...... ,....... ....................... .. 13n

i i



Table of Authorities (continued)

Cases (continued):
Pa ere .

Northcross v. Board of Educ. of Memphis, 412
U.S. 427 (1973) .................. ......... .. . 13

Pettway v. American Cast Iron Pipe Co., 494
F.2d 211 (5th Cir. 1974) .................. .. . 18n

Raney v. Board of Educ. of Gould, 391 U.S.
443 (1968) ................. ........ ....... .. . 17

Schwarz v. United States, 381 F.2d 627 (3d Cir. 
1967) ........................... ;........ . . . 2In, 22n

Sims v. Amos, 340 F. Supp. 691 (M.D. Ala.), aff'd
409 U.S. 942 (1972) ..... ................... 1 9n

Smith v. North Carolina State Bd. of Educ., No. 
'2572 (E.D.N.C., Sent. 26, 1974) ....... ...... . 15n, 27

Spxague v. Ticonic Nat1 i Bank, 307 U.S. ibr (1939) l3n, i8n, 2 in-, 22n

Stanford Daily v. Zuircher, 366 F. Supp. 18 (N.D. 
Cal. 1973) .............................. . . . 15n

Swann v. Charlotte-Mecklenburg Bd. of Educ:.,
402 U.S. 1 (1971) ..... ....................... 6n, 16, 22

Thompson v. School Bd. of.Newport News, 472 F.2d
177 (4th Cir. 1972) .............. ..........

Thorpe v. Housing Authority of Durham, 393 U.S.
268 (1969) .................................... . 27n

Union Tank Car Co. v. Isbrand’csen, 416 F.2d 96 
(2d Cir. 1969) ....................... , . 2 In, 22n

United States v. Schooner Peggy, 1 Cr. 103 (1801). 27n 

Statute:

20 U.S.C. §1617 [§718, Education Amendments of
1972] ................................ ....... . 1, 2, 3, 10, 12, 13, 

14, 16n, 17, lOn, 19n, 
20, 22, 23n, 24, 27,
2 9



Page

Rules:

F.R.A.P. 38, 39 ........................ ...........  24

F.R. Civ. P. 54(d) ....................... 2, 25

O ther Author it leg;:

114 Cong. Rec. 10760-64, 11339-45 ................ 13

117 Cong. Rec. 11343, 11521 ......... . 13

Goodhart, Costs, 38 Yale L.J. 849 (1929) .......... 13n

Hearings Before the Senate Select Committee on 
Equal Educational Opportunity, 91st Cong.,
Part B, pp. 1516-34 .................. ....... . 13

6 Moore's Federal Practice 54.77 [9] .............. 21n

10 Wright & Miller, Federal Practice and
Procedure §2679 (1973) ............ . . ........  21n

Table of Authorities (continued)

rv



IN THE

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

NO. 75-1059

CATHERINE C. SCOTT, et. al. ,

Plaintiffs-Appellants,

v.

WINSTON-SALEM/FORSYTH COUNTY 
BOARD OF EDUCATION, et al.,

Defendants-Appellees.

Appeal From The United States District Court 
For The Middle District Of North Carolina 

Winston-Salem Division

BRIEF FOR APPELLANTS 

Issue Presented For Review

Did the District Court err in failing to- award counsel fees 

to plaintiffs pursuant to Section 718 of the Education Amendments 

of 1972, 20 U.S.C. § 1617, because costs had previously been taxed



in this matter when the Court awarded fees for appellate

proceedings pursuant to the mandate of this Court?

Statement o_f_ the Case

This appeal challenges the refusal of the District Court to 

award prevailing plaintiffs in this school desegregation case 

reasonable attorneys' fees for the period from October 2, 1968 

until June 30, 1972, pursuant to Section 718 of the Education 

Amendments of 1972, 20 U.S.C. § 1617, as interpreted by the 

United States Supreme Court in Bradley v. School Bd. of Richmond, 

416-U.S. 696 (1974).

The District Court held., first, that Section 718 was

inapplicable to this case because it considered its September 19,

1973 Memorandum and Order, awarding attorneys' fees for appellate

proceedings pursuant to the mandate of this Court in 1973 (A. 47-
2/

49) and approving a Clerk's Memorandum taxing costs pursuant 

to F.R.C.P. 54(d), to be a final determination of plaintiffs' 

right to be awarded counsel fees for all prior proceedings (trial 

or appellate) in this case; and second, that the interests of 

justice did not require an award of fees in this case.

2/ References are to the Appendix on this appeal.

2



Plaintiffs demonstrate herein that, to the contrary, the 

September 19, 1973 Order dealt only with attorneys' fees on 

appeal to this Court, so that plaintiffs' prayers for a counsel' 

fee award for district court proceedings are still ''pending 

resolution" within the meaning of Bradley, supra; and that there 

are no circumstances present in this case which would render an 

aw’ard of counsel fees unjust.

Statement of Facts

Background

This school desegregation case was instituted by Negro 

parents and children of Forsyth County, North Carolina, on 

October 2, 1968, seeking injunctive relief against racially 

discriminatory practices by the defendants in the operation and 

administration of the Winston-Salem/Forsyth County Public: Schools 

(R. 16-29). Plaintiffs alleged in their complaint that Negro 

and white students, teachers and school personnel were being 

assigned to separate schools on the basis of race; that school 

budgets, construction of school facilities, bus routes and extra­

curricular activities and programs were being authorized, 

sanctioned and promoted by defendants on.the basis of race and 

color; that defendants County Commissioners, State Board of 

Education and State Superintendent of Public Instruction were 

dissuading and obstructing the institution and adoption of programs,



practices and policies which would eliminate racial segregation 

in the Winston-Salem/Forsyth County School System and were 

administering policies and practices to promote and perpetuate 

racial discrimination in the school system; that defendants 

refused to take appropriate and necessary steps to desegregate.

In addition to seeking elimination of the vestiges of the 

dual school system, both the original and Amended Complaint 

asked that plaintiffs be awarded their costs, including reasonable 

counsel fees, and that the Court retain jurisdiction of the case 

to award such further relief as it might deem necessary (A. 29f
3/

46). The early history of the case is set out in the margin.

3/ Following the joinder of issue but prior to completion of 
discovery, and following this Court's decision in Kesb.it v. 
Statesville City Bd. of Educ. , 418 F . 2d 1040 (4t.h Cir. .1969), 
plaintiffs on December 17, 1969 moved for a preliminary injunction 
requiring complete desegregation of the schoo.1. system no later 
than February 1, 1970. The District Court conducted a hearing on 
January 9, and on January 19, 1970, directed the Board to desegre­
gate the facu3.ti.es in each school effective with the beginning of 
the second semester of the 1969-7 0 school year-, but in no event 
later than February 1, 1970. Following further hearings on 
February 17, 1970, the District Court entered an order denying the 
motion of plaintiffs for a preliminary injunction and expediting 
the matter for final hearing on the merits. The plaintiffs noticed 
an appeal from the denial of their motion for preliminary injunc­
tion.

The Board filed a plan of desegregation on February 16, 1970, 
pursuant to an extension granted, by the Court; plaintiffs objected 
to the plan because it would have left more than 70 percent of the 
black and white students in racially segregated schools. Hearings 
were conducted, on April 30, 1970 and on June 25, the Court lie id 
that Vv7hiie the attendance zones established by the Board had not 
been gerrymandered.so as to exclude students of one race from

(continued on next page)
4



■J *

The 1973 Appeal

On March 15, 1972, the School Board submitted a revised 

pupil assignment plan (A. 11) which wTould have resegregated

3/ (Continued)
particular schools, the Board had not employed "reasonable" 
means to desegregate the elementary schools. The Court directed 
that the Board take additional steps to desegregate 3 of the 18 
all-black schools, and restrict its freedom of transfer policy 
to "majority—to—minority11 transfers, but approved the Board's plan 
in all other respects; the Court also dismissed the action as to 
the Board of County Commissioners and the State defendants.
Plaintiffs also appealed this Order.

• On July 14, 1970, the Board filed a report and motion with 
the Court pursuant to the June 25 Order. It amended its adm.inis —
• • , ,  ^ J , ,  .! « ... vn 4 « .Vl 1 -rr ^  -■* * '  -  -  ... 4—   m  •! n o  v ;  -)-5» 4“ 1 ~ ir* 4" O  ̂  CLlatlV tr. J..UC XC O u-W pCJ.UlJ.u mu.jv-xj.uj - J, — v—*. — *
submitted a summary of programs to increase contact between the 
races, and adopted a resolution to instruct its employees to 
proceed with construction of two new high schools. On July 17,
1970, the District Court approved the report except that it 
directed that the all-black schools be paired with 5 adjacent 
white schools, that no transfers be permitted from the paired 
schools, and that the Board provide transportation for other 
students electing to transfer under the majority-to-minority transfer 
provisions. The Board was directed to file a new plan within seven 
days showing how the three black and five white schools were to be 
paired. The Board noticed appeals from this Order and from the 
June 25, 1970, Order requiring that the three schools be desegre­
gated .

On July 31, 1970, the Board filed a plan for the clustering 
of the schools and also asked the District Court to stay its Order, 
and requested that the District Court require complete desegrega­
tion of all schools in the system. Plaintiffs also moved to add 
as parties defendant the Board of County Commissioners, the North 
Carolina State Board of Education and the State Superintendent of 
Public instruction since the local board had advised the Court that 
these officials were threatening to withhold funds and facilities 
to prevent the Board from complying with the Court's order.

(continued cn next page)
5



more than 70% of the system's elementary students. The District 

Court rejected this plan on July 21, 1972, after extensive review 

of both the facts and the decisions of the Supreme Court and this 
Circuit. The School Board appealed.

3/ (Continued)

By order dated August 17, 1970- the Court accepted the 
Board's plan for the three schools and joined the additional 
defendants. September 15, 1970, the Court denied the motions of 
the state officials and the County Commissioners that they be 
dismissed as parties defendant, and these parties appealed on 
September 16, 1970.

During the 1970-71 school year the Board's plan remained in 
effect and this Court postponed argument of the various appeals 
until after the United States Supreme Court's decisions in the 

and Mobile cases. Swann v. Charlotte-Meek1 ̂ nbnrc- Pd 
of Educ;-,— 402- IT. 5. 1 (1971) ; Davis v. Board" of
—— lil-—' 402 U.S. 33 (3 971). The case was thereafter briefed and 
argued before this Court, which on June 10, 1971, remanded this 
and three other cases "to the respective district courts with 
instructions to receive from the respective school.boards new plans 
which will give effect to Swann and Davis." Adams v. School Dist 
No. 5, 444 F . 2d 99 (4th Cir. 1971). ‘ ' “ *

Pursuant to the mandate of this Court, the Board submitted 
a "Revised Pupil Assignment Plan for the 1971-72 School Year," 
which the District Court approved, on July 26, 1971 for immediate 
implementation. On August 23, 1971, the Board applied to Chief 
Justice Burger for a stay of both this Court's June 10 decision 
and the subsequent Orders of the District Court, pending certiorari 
The Chie^. justice denied the Board's application for a stay on 
August 31, 1971, and on October 26, 1971, the Supreme Court denied 
the Board s Petition for Certiorari, without dissent. Meanwhile, 
on September 19, 1971, the Board had requested tlie District Court 
to reconsider and vacate its order of July 26 in light of certain 
comments in the Chief Justice's opinion denying a stay.

By Memorandum and .Order of December 3, 1971, the District Court 
authorized the Board to submit amendments to the plan of desegre­
gation, if it desired, for the 1972-73 school vear.

6



In their Brief on the Board's appeal, plaintiffs contended 

that the plan approved for 1971-72 was consistent with the 

decisions of the Supreme Court and this Court, and that the 

District Court was clearly correct in requiring its continued 

implementation. The plaintiffs further submitted:

. . . that this is the kind of frivolous 
appeal which warrants an award of double 
costs and counsel fees as provided by Rule 
38 and 39 of the Federal Rules of Appellate 
Procedure and now particularly by section 
718 of the Emergency School Aid Act of 1972*

Plaintiffs prayed, in conclusion,

. . . that this court should award them
double costs and counsel fees on this annual 
pursuant to Rules 38 and 39 of the Federal 
Rules of Appellate Procedure and section 718 
of the Emergency School Aid Act of 1972 
(emphasis added).

This Court, on April 30, 1973, affirmed the District Court' 

denial of the Board's motion to revise its pupil assignment 

plan, concluding that.:

The revision proposed by the Board in its 
motion would have meant a resegregation of 
a substantial portion of the school system. 
Such a revision in the plan would have been 
constitutionally invalid and the District 
Court properly rejected it. (A. 48)

With regard to plaintiffs' request for double costs and counsel 

fees for the appeal this Court stated:



The appellees have requested this Court 
to award double costs and counsel fees under 
Rules 38 and 39, Federal Rules of Appellate 
Procedure. We are not disposed to' make such 
an award. However, the appellees are entitled 
to an allowance of attorneys' fees under 
Section 718 of the Emergency School Aid Act 
of 1972. [Citation omitted].

The cause is accordingly remanded to the 
District Court with directions to make a 
reasonable allowance for attorneys' fees 
in favor of appellees for services rendered 
herein by them subsequent to June 30, 1972.
(A. 49)

Pursuant to this opinion and mandate, plaintiffs on June 11, 1973, 

moved for allowance of costs ana expenses and counsel fees sub-
r *  o  or*, J-r* JTi -»v. /->  ̂  ̂97 2 t  ̂0  ̂̂ }

In a letter to the District Court Clerk dated June 18, 1973 

(A. 55-56), the Board questioned whether this Court's mandate 

of April 30, 1973, intended to include costs. The Board went 

on to say:

We assume that the motion for the allowance 
of costs is made pursuant to Rule 54 rather 
than to the mandate of the Court of Jvppeals 
and that the District Court would have its 
usual discretion in awarding costs as provided 
in that Rule. (Z\. 55) (emphasis added)

With regard to plaintiffs' request for attorneys' expenses, 

the Board expressed doubt whether they were "attorney's fees 

within the mandate of this Court or Section 718 (ibid.).

8



The letter continued as follows:

As to the amount of attorney's fees, we 
would simply leave to the Court a determina­
tion of what is fair and reasonable under 
the circumstances. We trust that the standards 
to be applied by the Court in determining 
attorneys' fee in this case would be in line 
with other cases where a unit of government 
or governmental agency is taxed with attorneys' 
fees.•

Most of the costs listed by the plaintiffs 
involve transcripts and depositions. Although 
it is not stated in the Motion, we assume that 
the plaintiffs are requesting to be reimbursed 
for the original and one copy of each deposition 
and transcript. We ask simply that the customary 
rule be applied to these items, and if it is not 
usual, for instance, to allow as costs the cost 
of a copy of depositions, that such an allowance

t  J .U U U C  JL.li _jL CD t U O l

In sum we do not question that the plaintiffs 
are entitled to the attorney's fees mandated by 
the Court of Appeals, nor that they are entitled 
to be awarded costs. We simply want to make the 
Court aware that we are interested in the matter 
and would not want our silence to be construed 
as acquiescence in an award that is not usual and 
customary in these cases.(A. 56) (emphasis added)

On September 19, 1973, the Clerk filed a Memorandum and Order 

taxing costs in favor of plaintiffs in the amount of $2,441.58, 

and treating plaintiffs' motion as a Bill of Costs pursuant to 

Local Rule 27(c) (A. 58-63). On the same date, the District Court 

filed its Order approving the Clerk's action and denying recovery 

of attorneys' travel and telephone expenses (A. 64-66). On the

9



matter of attorneys' fees the court stated;

This case/was filed in 1968 and the Court 
is aware of the amount and quality of legal 
services rendered by plaintiffs * counsel" 
throughout this litigation. The Court has 
observed with approval the successful manner 
in which counsel have handled this complicated 
case. The Court is, however, at this time, only 
concerned with what is a reasonable allowance 
for attorneys1 fees fox* the preparation and, 
argument of an appeal from an order of this 
Court. (A. 65) (emphasis added)

Accordingly, plaintiffs were awarded $2,451.58 as costs and
$1/700.00 as attorneys' fees (A. 66).

The §718 Motion

May 15, 1974, the United States Supreme Court held in 

Bradley v. School Bd. of Richmond. 416 U.S-. 696, that Section 

/18 may be applied retroactively where the propriety of' a fee 

award was pending resolution when the statute became effective. 

On June 3, 1974, plaintiffs moved that the District Court award 

them counsel fees, pursuant to § 718, from the initiation of
4/

thxs action on October 2, 1968 until June 30, 1972 (A. 67-68).

4/ Responses to plaintiffs' motion for counsel fees were filed 
by the County Commissioners, the State Board of Education and the 
State Superintendent of Public Instruction. Plaintiffs are not 
appealing the District Court's denial of counsel fees as against 
these parties and their responses will therefore not be further 
cons iaered.

10



The Board of Education responded on June 18, 1974, contending 

(1) that, any claim for attorneys' fees from the institution of 

this action until the Order of September 19, 1973 had been 

finally determined and was barred by res judicata, since plaintiff 

failed to appeal from that Order; (2) that plaintiffs were barred 

by the doctrine of collateral estoppel from an award of attorneys' 

fees; and (3) that this is a case in which the District Court 

should, in its discretion, deny attorneys' fees, because "special 

circumstances would render such an award unjust" since the Board 

has acted in good faith throughout the litigation, and had 

discharged its constitutional responsibility at the .time Section 

718 was enacted (A- 70-80).

The District Court's Ru1ing

On October 31, 1974, the District Court denied plaintiffs 

any award, of attorneys' fees (A. 81-88) for the following 

reasons; (1) the September 19, 1973, Order granting plaintiffs 

costs and counsel fees pursuant to the Fourth Circuit mandate 

was "then considered to have . . . finally resolved . . . all

claims [for fees] from the filing of this action through June 11, 

1973" (A. 84); (2) at no time "prior to June 4, 1974, during the

long history of this litigation . . . have plaintiffs' counsel 

specifically and seriously asserted any claim of entitlement to 

attorneys' fees for services rendered from the date of filing of 
this action to the 'effective date of the Emergency School Aid Act

11



of 197 2 (July 1, 1972)" (A. 84); (3) the interests of justice

did not require the court, in the exercise of its equitable 

powers, to award attorneys' fees (A. 85); (4) Section 718 as

construed in Bradley is applicable only to a situation where 

the propriety of a fee award was pending resolution on appeal 

when the statute became effective (A. 86); and (5) even if 

Bradley extended § 718 to cases in which the fee issue was 

never litigated before enactment of § 718, it would be manifestly 

unjust to apply the statute to this case (A. 87).

On November 26. 1974, plaintiffs filed Notice of Appeal from 

the District Court's ruling (A. 91).

12



ARGUMENT

I

SECTION 713 REQUIRES THE AWARD OF-COUNSEL 
FEES IN THIS CASE AND THERE ARE NO SPECIAL 
CIRCUMSTANCES PRESENT IN THIS CASE WHICH 
WOULD RENDER AN AWARD OF ATTORNEYS ' FEES

UNJUST

Section 718 of the Education Amendments of 1972, 20 U.S.C.

§ 1617, represents an intentional Congressional departure from

the traditional American rule refusing to include counsel fees
5/

as part of the recoverable costs of litigation. The statute

was intended to enlarge the circumstances in which federal
district courts would exercise their inherent equitable power 

6 /
tO ci'WciJrci 1. £rC S / l}0yoriCi the tradit iona.1 IGX'muiatxon requrrmg

y"obdurate and obstinate" conduct by school boards. See, Hearings 
Before the Senate Select Committee on Equal Educational 
Opportunity, 91st Cong., Part B, pp. 1516-34; 114 Cong. Rec.
10760-64, 11339-45 (Sen. Mondale); 117 Cong. Rec. .11343, 1.1521 

(Sen. Coo].) .

The United States Supreme Court, in North cross v. Board, of 

Educ. of Memphis, 412 U.S..427, 428 (1973), held that under §718

5/ See, e.q. Goodhart, Costs, 38 Yale L. J. 849 (1929); Sprague 
v. Ticonic Nat'l Bank, 307 U.S. .161 (1939); F . D. Rich Co., Inc. 
v * Industrial Lumber Co., 417 U.S. 116 (1974).

6/ Sprague v. Ticonic Nat’l Bank, supra, 307 U.S., at 164.

7/ E. g ., Bell v. School Bd. of Powhatan County, 321 F.2d 494 
(4th Cir. 1963).

13



"the successful plaintiff 'should ordinarily recover an attorney's 

fee unless special circumstances would render such an award
8/

unjust.'" And in Bradley v. School. Bd. of Richmond, 416 U.S. 

696 (1974), a year later, the Court indicated that Section 718 

should be given retrospective application, at least where the 

counsel fee issue had not been finally determined, to authorize 

the recovery of attorneys' fees for services performed prior to 

its effective date (July 1, 1972).

In the instant case, all of the statutory requirements are 
9/

met, and there are no special 

denial of fees. Final orders h 

implementing desegregation ana

circumstances which would warrant, 

ave been entered in the case 

tlixs j_s an ap]32roj3iriati0 j u.ric Jcu tg

8/ See si Iso i Thompson v. School Bd, of Newport. News, 472 F.2d 
177 (4th Cir. 1972).

9/ Section 718 states:

Upon 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 provisions of this 
chapter or for discrimination on the basis of 
race, color or national origin in violation cf 
Title VI of the Civil Rights Act of 1964, or 
the fourteenth amendment to the Constitution 
of the United States as they pertain to ele­
mentary and■secondary education, the court, in 
its discretion, upon a finding that the pro­
ceedings 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.

14



■ 10/
for the determination and award of fees.

The appellee Board of Education has contended that the

circumstances of the instant case would render an award of
11/

attorneys' fees unjust. The Board contends that this case

is different from Bradley, supra, in that there has been nc

finding of an equitable ground for the award of fees; the Board

points to its apparent good faith and the findings of the

district, court on June 25, 1970, that the school system, in

general, was a unitary one (A. 79). But whether the Court would

be warranted in finding undue obstinacy on the part of the

defendants is not the issue here. The Supreme Court, in Bradley

makes clear that such inquirv is not necessary. All that is

required is that plaintiffs obtain a final order against defendants

enjoining their violation of rights secured by the Constitution
12/

and laws of the United States. This the plaintiffs have done.

10/ It should be noted that under the statute, courts need not 
render the counsel fee award simultaneously with the underlying 
final order, Bradley, supra, 416 U.S., at 722-23, On the other 
hand, the court need not await ultimate dismissal of the lawsuit 
to enter judgment for fees and costs, but may "award fees and 
costs incident to the final disposition of interim matters," id. 
at 273; see also, Smith v. North Carolina State Bd, of Educ., No. 
2572 (E.D.N.C. Sept. 26, 1974)

11/ We deal below (Arguments II and ill) with the separate 
questions whether, despite the fact that this case meets the 
requirements of § 718, a claim for attorneys' fees in this case 
is barred because the Statute is inapplicable or because of the 
doctrine of res judicata.
12/ See also Stanford Daily v. Zurcher, 356 F. .Supp. 18, 25 
(N.D. Cal. 1973).

15



The Board's reliance on the District Court's June 25, 1970
13/decision declaring the system a unitary one is misplaced: That

decision, which would have left 70 percent of the students 

segregated, was reversed by this Court on June 10, 1971, with 

instructions to the District court that it receive new plans 

which would give effect to the Supreme Court decisions of Swann 

v . Chari otv.e-Mcchlenburq Bd. of Educ., 402 U.S. 1 (1971) and 

Davis v. Board of School Comm'rs of Mobile, 402 U.S. 33 (1971).

After a plan substantially desegregating the schools was accepted 

by the district court, the Board attempted to resubmit proposed 

modifications which would have resegregated more than 70 percent
q-F f' hp 1 earnpr'i" r-> rw g rpopu hc 9.+* t ©rP.'P't Jr W02T6** rO^Ctcd ]?V

District Court and by this Court,' and it was only after these 
attempts had failed that the Board finally assented to desegre­

gation.

The Board curiously contends that it was only because 

of its efforts "to vacate the court's previous orders requiring 

implementation of [the revised 1971-72 pupil assignment plan]

. . . that the opportunity for plaintiffs to bring up the question 

of attorney's fees before the Court of /appeals arose" (A. 79)."

13/ . In Bradley, this Court had reversed the district court's 
award of fees in part because it. felt the school board's failure 
to anticipate Swann was justifiable. 417 F .2d 318, at 327. The 
Supreme Court held this inquiry irrelevant to § 718. 416 U.S., at
721.

16



Implicit in this statement is the belief that the present action 

v/ould have terminated and been dismissed if the Board had 

chosen initially to assent to the revised plan. That is

simply untrue in school desegregation cases. The District Court 

was required to retain jurisdiction in order to insure that a 

unitary system is actually maintained and established. Raney v. 

Board of Educ. of Gould, 391 U.S. 443 (1968). The proceedings 

had not yet been concluded on the effective date of Section 718, 

and the district court still retains jurisdiction of this case. 

See note 10, supra.

The Board's assertion (A. 79) that its actions in 

litigation might nave been different if it had known xt 

subjecting itself to liability for counsel fees is equa

thi s 

was

L4/baseless. This apparent concern with liability for counsel fees 

which the Board asserted below is in sharp contrast to its 

response to plaintiffs' 1973 motion for appellate counsel fees.

In its June 18, 1973, letter to the District Court Clerk, the 

Board indicated that it would not respond formally to plaintiffs' 

motion, and that it would assent to an award of counsel fees 

which -would be "fair and reasonable under the circumstances"

(A. 56). Nor is it true, as the Board somewhat vaguely asserted,

14/ The District Court in its Memorandum notes that defendants, 
during the period for which fees are now claimed, were attempting 
to follow the law as they believed it to be (A. 87). Assuming that 
the law was unclear during this period, such a ground is insufficien

(continued on next pace)17



that the matter cf counsel fees comes as a complete surprise 
to it. Since the inception of this case plaintiffs have repeatedly

15/
pressed their claim for counsel fees. Surely the defendants

14/ (Continued)

to warrant a court in denying counsel fees. See Newman v. Piggie 
Park Enterprises, 3 90 U.S. 400 (1968) ; Moody v. Albemarle Paper 
Co. / 474 F.2d 134,, 140-42 (4th Cir. 1.973); Pe’ctway v. American Cast 
Iron Pipe Co., 494 F.2d 211, 251-63 (5th Cir. 1974); Baxter v. * 1 2 3
Savannah Sugar Refining Corp. , 495 F.2d 437 (5th Cir. 1974).
See also, note 13, supra.
15/ Since both the Board and the District Court have maintained 
that, plaintiffs never seriously pressed a claim for counsel fees 
for the 1968-72 period (A. 34), it would be helpful to outline the 
instances in which this claim has been asserted and renewed. The 
initial request for attorneys' fees in this action was made in the 
complaint filed on October 2, 1968 (A. 29) and Amended Complaint 
pT ion y-p-no i o , i ggg (\, 46^ , <p^prp?ft6r thi« perniest was renewed
in the following documents:

(1) Plaintiffs 1 Supplemental Memorandum dated 
May 8, 1970;

(2) Appellants' Brief to the Court of Appeals for 
the Fourth Circuit dated May 16, 1971

(3) Plaintiffs' Response to Defendants' Proposed 
Modifications of the Desegregation Plan Approved 
by the Court on July 26, 1971, dated April 12,
1972.

None of these requests was formally acted upon. Denial of 
prayers for fee awards is not lightly inferred from substantive 
decrees which are silent cri the subject, Sprague v. Ticonic Nat' 1 
Bank, 307 U.S. 161, 168-69 (1939); Allegrini v. DeAngelis, 68 F. 
Supp. 684 (E.D. Pa. 1946), aff'd 161 F.2d'184 (3d Cir. 1947); thus, 
plaintiffs' claim for attorneys' fees for the period October- 2,
1968 to June 30, 1972 was pending before the district court on 
July.l, 1972, the effective date of Section 718.

18



have been aware of the claim. Here, as in Bradley, 416 U.S., at

721, there is no tenable ground upon which to suppose that an 

earlier and firmer apprehension by the school board would have 

resulted in any more rapid termination of this lawsuit..

Nor is the application of Section 718 an additional and
wunforeseen! burden which might operate as an injustice. See 

Bradley, supra, 416 U.S., at. 716-21. Plaintiffs admit that other 
school boards may be insulated from the application of Section 
718 to support an award of fees for services prior to its 
effective date, when the right to such an award at earlier stages 
of a case was actually litigated to judgment (and appellate review) 
under the "obdurate—obstinate" standard prior to the passage of

U Jthe statute. But the mere fortuity that plaintiffs' entitlement

16/ Prior to the passage of Section 718 the district court could 
have relied on alternative rationales to support a fee award in 
this suit: (a) the benefit doctrine, e_._cr., Ha 13. v. Cole, 412 U.S.
1 (1973); Mills v. Electric Jratolite C o ., 396 U.S. 375 (1970); (b)
the "private attorney-general" theory, e.g., Sims v. Amos, 340 F. 
Supp. 691 (M.D. Ala), aff'd 409 U.S. 942 (1972); Incarcerated Men 
of A llen County v. Fair, No. 74-1052 (6th Cir., Nov. 13, 1974); case 
cited in Gates v. Collier, 489 F.2d 298, 300 n. 1 (5th Cir. 1973), 
pending on petition for rehearing en banc; in other words, the 
Board's potential liability for fees in this case was always present

3,7/ in Bradley, for example, plaintiffs received a $75.00 award 
from the district court in 1964, which this Circuit refused to 
overturn for inadequacy, 416 U.S., at 699-700. The Supreme Court 
did not decide that Section 718 should be applied retroactively to 
tlie extent of reopening this judgment, which had ultimately 
determined plaintiffs* 1 rig}!t to fees for an ear3.ier portion of the 
litigation —  a question which the Court said was not presented to

(continued on next page)
- 19 -



to a counsel fee award in this case, for which plaintiffs had 

made claim in their original Complaint, had not been litigated 

prior to the effective date of Section 718, does not create an 

injustice to the defendants should it be litigated now.

IT.

THE DOCTRINES OF RES JUDICATA, WAIVER AND 
ESTOPPEL ARE INAPPLICABLE TO THIS CASE 
BECAUSE THE ISSUE OF COUNSEL FEES WAS 
PENDING ON BOTH THE EFFECTIVE DATE OF 
SECTION 718 AND ON THE DATE WHEN PLAIN­
TIFFS MOVED FOR COUNSEL FEES INCURRED 

FROM OCTOBER 1968 TO JUNE 1972

A. Plaintiffs have repeatedly pressed their claim to 
counsel fees and have not waived the claim during 
the coup'se or Lhrs litigalxon.______________ -______

Contrary to the District Court's October 31, 1974, Memorandum, 

plaintiffs have specifically and seriously asserted and renewed 

a claim for fees for services rendered prior to the effective 

date of Section 718 in this case. On at least four occasions 

plaintiffs moved the District Court and this Court for fees 

incurred during the period in question. See note 15, supra .

While these four motions were made prior to the effective date of

17/ (Continued)

it in Bradley. 416 U.S., at 710-11 and n. 14. (The Court
indicated in a footnote, however, that even that question could 
not be definitively answered in the abstract, but only upon 
consideration of the particular circumstances of each case. Ip•> 
at 711 n. 15.)

20



Section 718, the failure of the District Court and of this

Court to.act upon these motions cannot be construed as a denial, 

and the fact that plaintiffs did not appeal all orders entered 

after the motions were made but which did not mention counsel 

fees, in order to raise the issue before this Court or the 

Supreme Court (by certiorari), is not a waiver of their claim 

to counsel fees. The Supreme Court, in Bradley, explicitly 

approved of the notion that substantive matters should come first, 

with determination of collateral issues, such as entitlement to 

attorneys' fees, postponed until a more convenient time. 416 

U.S., at 722-23. See also, notes 10, 15, supra.

The Court's implicit assertion that plaintiffs' failure
continually to raise the issue of attorneys' fees at every stage

of the litigation somehow waives their right to such fees, simply 
18/

has no merit. Not only has Bradley specifically rejected such
an assertion, see note 10, supra, but the general rule prior to
Bradley was that attorneys' fees need not be requested until after

w
the outcome of the litigation. Moreover, as noted above, the

18/ No such requests are necessary or warranted. At the 
appropriate stage in the proceeding, the court would consider 
plaintiffs' motion without an annual renewal. See generally,
Wright & Miller, Federal Practice and Procedure, Section 2679 
6 Moore's Federal Practice 54.77[9].

19/ See, e ..g. , Sprague v. Ticonic Nat'l Bank, supra, 307 U.S., at 
168-69; Union Tank Car Co. v. Isbrandsten, 41.6 F.2d 96 (2d Cir, 1969) 
Schwarz v. United States, 381 F.2d 6 27 (3rd Cir. 1967); Allegx-ini v. 
DeAngelis, 68 F. Supp. 684 (E.D. Pa. 1946), aff'd 161 F.2d 184 
(3rd Cir. 1947).

the
10
(1973);

21



r

denial of fees should not be lightly inferred.

The interim orders of the District Court and this Court 

cannot on their face be construed as denials of plaintiffs' 

motions for counsel fees. A similar argument with respect to 

various orders during the course of school desegregation litiga­

tion was rejected in Smith v. North Carolina Bd, of Eauc ., supra. 

And even if one were to assume that the failure of the District 

Court to award counsel fees and costs earlier was a denial, it 

is clearly appropriate for the plaintiffs to await final dis- 

position of the action before appealing. See Swann v. Charlotte- 

Mecklenburg Bd. of Nduc., 402 U.S. at 6-8, 12-13.

B. Plaintiffs' Claim for an award of counsel fees for 
the period prior to the effective date of Section 
718 is not barred by the doctrine of res judicata 
because the.District Court's September 19, 1973 
order dealt only with counsel fees for an appeal 
to this Court.______________________________________

Despite defendants' emphatic arguments to the contrary in 

support of'their contention that plaintiffs' claim for counsel

fees was bari'ea by res judicata (A. 76-78)-- arguments apparently

not explicitly accepted by the District Court (see A. 84) —

20/

2.0/ See Sprague v. Ticonic Nat’l Bank, supra, 307 U.S., at 
168-69; Allegrini v. DeAnqelis, supra. Cf. Union Tank Car Co. 
v. Isbrandsten, supra, 416 F.2d, at 97; Schwarz v. United 
States, supra, 381 F.2d, at 631.

22



the issue of plaintiffs' entitlement to an award of counsel fees

for the period from October 1968 to June 30, 1972, has not been 

litigated and is not barred by principles of res -judicata. This 

issue was still pending before the District Court when plaintiffs 

moved for fees in June, 1974.

A review of the events leading to the District Court's 

September 19, 1973, Order shows clearly that the Order fixed 

counsel fees for a limited portion of this litigation, and was 

not intended as a final resolution of plaintiffs' claim for 

counsel fees for the entire case.

In its opinion issued April 30, 1973, this Court 

stated:
The cause is accordingly remanded to the 
district court to make reasonable allowance 
for attorneys' fees in favor of the appellees 
for services rendered herein by them subse­
quent to June 30, 197 2 (A.’ 4 9).

The relief ordered by this Court must be considered in light
21/

of the plaxntiffs' prayers. In their Brief to this Court,

21/ Defendants' claims might'be more tenable had plaintiffs sought 
from tliis Court in 1973 an award of fees for the entire litigation —  
and been limited by this Court to an award of fees for the period 
after the effective date of Section 718, in accordance with this 
Court's interpretation of the statute's applicability at that time, 
Thompson v . School Bd . of Newport News, supra. See Brewer v . School 
Bd. of Norfolk, 500 F.2d 1129, 1130 (4th Cir. 1974) (appeal of 
adequacy of limited fee award directed by this Court in 1972 when it 
rejected §718 claims, 456 F -2d 943, remanded "wdth instructions to 
determine and award to the plaintiffs such reasonable attorneys’ fees 
as may be appropriate under §710 as construed by the Supreme Court 
in Bradley . . . without limitation to what they did with respect to
the issue of free transportation").

23



plaintiffs requested an award of double costs and counsel fees 

pursuant to Rules 38 apd 39 of the Federal Rules of Appellate 

Procedure, or an award of fees on the appeal pursuant to Section 

718. This request for attorneys' fees related solely to services 

rendered in connection with the appeal; in their brief plaintiffs 

stated:
Additionally, Section 718 of the Emergency 
School Aid Act warrants an award of counsel 
fees and costs on this appeal. (emphasis 
supp]led)

Thus, this Court never considered the question of the propriety 
of counsel fees in connection with services performed in this

j rv~. if i ^ t ’O "tlVv2* I

On June 11, 1973, the plaintiffs moved in the District 

Court for an award of counsel fees and for recovery of 

their costs and expenses (A. 50-54). Plaintiffs’ motion 

was made "pursuant to the Opinion and Mandate of the United 

States Court of Appeals for the Fourth Circuit" (A. 50); 

as noted, this mandate concerned plaintiffs1 request for 

counsel fees in connection with the appeal.

24 -



Iij its Order of September 19, 1973, the District Court
stated:

The Court is, however, at this time only 
concerned with what is a reasonable allowance 
for attorneys' fees for the preparation and 
argument of an appeal from an order of this 
Court (A. 65).

The above-quoted statement from the Order of September ]9 

indicates that the District Court was aware of the limited 

nature of plaintiffs' request to this Court for attorneys' fees.

lit j.s true that, plaintiffs' motion in the District Court

asked for costs from the inception of the case as well as tor 
_ 22/ tees in connection wi th i o?1 ?nnr,ri ........

- j T  -*- • XxKJ  V tdj.. f Cv JL tor L> c i 3. U. b

■ costs, the Court merely approved the "Clerk's Memorandum and Order- 

Taxing Costs" dated September 14, 1973 (A. 66), which itself 

treated plaintiffs' motion, as a Bill of Costs required by Local 

Rule 27(c) and taxed costs in favor of plaintiffs pursuant to 

Rule 54(d) of the Federal Rules of Civil Procedure (A.. 59). 

Plaintiffs' motion for counsel fees, on the ether hand, was made 

pursuant to the mandate of this Court, which related only to fees

22/ Plaintiffs' recovery of costs for the period of this litiga­
tion prior to the appeal does not bar their request for counsel
fees. A subsequent request for an award of fees is not barred even wi
Supp.

cui dwara or rees is not barred e' 
/here costs were previously taxed, Allegrlnl v. DeAnqelis, 68 F. 
>upp. 684 (E.D. Pa. 1946) aff'd 161 F.2d 184 (3rd Cir. 1947).

25 -



in connection with the appeal. Therefore, the issue of the

propriety of fees for services prior to the appeal remained

"pending” before the District Court after the September 19, 1973
23/

Order was entered.

i i:

THE ERADLEY DECISION MAKES §718 
APPLICABLE TO ALL CASES IN WHICH 
THE ISSUE OF COUNSEL FEES WAS 
PENDING RESOLUTION ON ITS EFFECTIVE 
DATE, AND IS NOT LIMITED TO CASES 
IN WHICH THE SPECIFIC ISSUE WAS 
PENDING RESOLUTION ON APPEAL AT

(A. 85-66), that the statutory construction rule of Bradley 

is applicable only to the situation where the propriety of a 

fee award was pending resolution on appeal at the time Section 

718 became law; and that Bradley is therefore inapplicable tc 

this case. This position is clearly specious.

23/ While the District Court's September 19, 1973, Order may 
be construed to indicate that the fees awarded were those to 
which plaintiffs were entitled "under 718 of the Emergency School 
Aid Act of 1972" (A^^64, 65), the Order plainly states that the 
allowance of attorneys' fees is made pursuant to the mandate of 
this Court (A. 65, 66). As noted, plaintiffs' request to this 
Court for fees was limited to sendees in connection with the 
appeal. This Court never decided the question of the propriety 
of fees for the period' from October 1968 to June 30, 1972, a fact 
which the School Beard necessarily recognized in its letter to the 
District Court Clerk acknowledging that counsel fees would be 
awarded pursuant to the mandate of this Court (A. 55-56).



Bradley described the .issue presented by the case as one
involving the applicabi.l itv of Section ? 18 to attorneys ’ fees 

"incurred prior to" its effective date, 416U.S., at 710 

(emphasis added). The Supreme Court indicated that its

resolution of this question required. its specific disposition

of Bradley —  application of the statute so as to change the

result of a district court decree rendered prior to its effective

date, but pending on appeal at that date?

. . . The Board appealed from that award,
and its appeal was pending when Congress . 
enacted §718. The question, properly viewed, 
then, is not simply, one relating to the pro­
priety of retroactive application of §718 [24/]
to services rendered prior to its enactment,
I v n  1' r r -  j - V i n r  n r ^ p  y~f.s 1 ^ i  •n r  r f  O f  p n n l  i  f  f h -' 1 ' i f ' ' ,  r

or that section to a situation where the 
propriety of a. fee award was pending resolution 
on appeal when the statute became law.

41G IT. S . at 710 (emphasis added),

24/ Application of the principle of statutory construction 
enunciated in Bradley (and Thorpe and Schooner Peggy, relied 
upon by the Supreme Court) to future district court awards for 
past services is a simpler question than its application to 
alter a district court judgment because it docs not implicate 
the policy considerations relevant to prospective or retrospective 
application. In the textual paragraph and notes following the 
passage quoted, the Court referred to these additional consider­
ations :

This Court in the past has recognized ct 
distinction between the application cf a 
change in the law that takes place while a 
case is on direct review on the one hand, and

- 27 - (Continued on next page)



After distinguishing the circumstances of Bradley from 

cases in which the Court might be asked to reopen "final" 

adjudications in light of changes in law (see note 24, supra), •

the Court affirmed the principles which governed ins disposition 

in the matter before it, and which must be applied here:

We anchor our holding in this case on the 
principle that a court is to apply the law 
in effect at the time it renders its decision, 
unless doing so would result in manifest 
injustice or there is statutory direction or 
legislative history to the contrary.

Ibid Court concluded its discussion of the principles cf

statutory construction as follows:

2<i/ (Continued)
wits effect on a final judgment under 

collateral attack,— '' on the other hand. 
Linkletter v. W alker, 381 U . S «, G18, G27 
(1965) . Wre are concerned here only with
direct review.

14/ By final judgment we mean on€2 where "the 
availability of appeal" has been exhausted or 
has lapsed, and the time to petition for 
certiorari lias passed." Linkletter v. Walker, 
381 U.S. 613, 622 n. 5 (1965).

15/ In Chicot County Drainage District v .
Baxter State Bank, 308 U.S. 371, 374 (1940),
the Court noted that the effect of a subsequent 
ruling of invalidity on a prior final judgment 
under collateral attack is subject, to no fixed 
"principle of absolute retroactive invalidity" 
but depends upon consideration of "particular 
relations . . . and particular conduct." . . .

28 - (Continued on next page;



The availability of §718 to sustain the award 
of fees against the Board therefore merely 
serves to create an additional basis or source 
for the Board's potential obligation to pay 
attorneys’ fees. [See note 16 supra!. It does 
not impose an additional or unforeseeable 
obligation upon it.

416 u.;

Accordingly, upon considering the parties, 
the nature of the rights, and the impact of 
§718 upon those rights, it cannot be said 
that the application of the statute to an 
award of fees for services rendered prior to 
its effective date, in an action pending on 
that date, would cause "manifest injustice," 
as that term is used in Thorpe, so as to compel 
an exception of the case from the rule of 
Schooner Peggy ,

at 721 (emphasis added).

T n O c G ^ 3  6 '- d C S . v ' y*> v~ a r~- -i ^  1 <o> C -^1 ̂ T 'T _ O ̂  **

Bradley? so long as a request for attorneys1 fees is properly 

before a district court on the effective date of the statute, 

whether or not an award is sought for services performed prior 

to that time. Section 718 is to be applied, and requires the 

Court to make an award of reasonable" attorneys* fees unless there 

are "special circumstances which would render such an award unjust."

24/ (Continued)

The Court held that the statute would be given retrospective 
application in Bradley to alter a judgment pending on appeal on 
its effective aa.te (although, as set forth in the passages quoted 
in this note, the Court did not pass upon the possibility that §718 
could be applied to reopen "final" judgments). A fortiori, the 
statute is to be applied in cases such as the instant one, in which 
there had never been an adjudication of plaintiffs* claim for counsel 
fees prior to the effective date of the statute.

29



CONCLUSION

For the foregoing reasons, the judgment of the District 

Court should be reversed and the cause remanded, as in Brewer, 

supra, "with instructions to determine and award to'the 

plaintiffs . . . reasonable attorneys’ fees" for the period 

from the inception of this action until the effective date of 
§718.

Respectfully submitted,

m m .
beVOfTNI r.lIAMBERS

:hambers, Stein & Ferguson 
.951 S. Independence Boulevard 
Char]of te M'rth carolin? 78^02

JACK GREENBERG 
JAMES M. NABRIT, III 
NORMAN J. CHACHKIN 

10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs-Appellant

30



CERTIFICATE OF SERVICE

I hereby certify that on this 25th day of February, 

1975, I served two copies of the Brief for Appellants in the 

above-captioned matter upon counsel for the parties herein, 

by depositing same in the United States mail, first class 

postage prepaid, addressed as follows:

William F. Maready, Esq.
P. 0. Box 2860
Winston-Salem, North Carolina 27102

Hon. Andrew A. Vanore, Jr., Esq.
P. 0. Box 629
Raleigh, North Carolina 27602

P. Eugene Price, Jr., Esq.
G c v e iji i i ie n l. Cg iic.c:ir
Winston-Salem, North Carolina 27101

31