Shelby County v. Holder Brief Amici Curiae

    1st t h e

(tart rrf t!?p illmtrft Stairs
October Term, 1972 

No................

Carolyn  B radley , et al.,

vs.
Petitioners,

T h e  S chool  B oard of t h e  C it y  of R ic h m o n d , et al.

PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

J ack  Green b er g  
J am es  M. N a brit , III 
N orm an  J .  Ch a c h k in  
Ch a r les  S t e p h e n  R alston  
E ric  S c h n a p p e r

10 Columbus Circle
New York, New York 10019

Louis R. L ucas

525 Commerce Title Building 
Memphis, Tennessee 38103

J a m es  R. O l p h in

214 East Clay Street 
Richmond, Virginia 23219

M. R a l p h  P age

420 North First Street 
Richmond, Virginia 23219

Counsel for Petitioners



I N D E X

PAGE

Opinions Below........ ....................................   1

Jurisdiction ............      1

Question Presented ......    2

Statutory Provisions Involved .....................................  2

Statement of the Case....................................................  3

Reasons for Granting the W rit..............................   5

1. The Decision Below is Inconsistent With the
Decisions of This Court Reg*arding the Respon­
sibility of State Officials to Dismantle Dual 
School Systems ....     5

2. The Decision Below Conflicts With the Deci­
sions of Other Courts of Appeals and of Dis­
trict Courts as to Whether Legal Fees Should 
Be Awarded to Private Parties Suing to En­
force Important Congressional and Constitu­
tional Policies .............................. .....................  16

3. The Decision Below Conflicts With the Deci­
sions of This Court and Other Courts of Ap­
peals as to When Legal Fees Should Be 
Awarded to Plaintiffs Who Have Secured Re­
lief Benefitting a Class ........................ .............  28

4. The Decision Below Conflicts With the Deci­
sion of This Court as to When Federal Statutes 
Must be Applied Retroactively......................... 32

C o n c lu sio n 35



11

PAGE
A p p e n d ix

Memorandum Opinion of District Court in 
Bradley Action ...............       la

Opinion of United States Court of Appeals in 
Bradley Action .................................   34a

Opinion of United States Court of Appeals in 
Thompson Action ....................................................  78a

T able op A u t h o k it ie s

Cases:

Alexander v. Holmes County Board of Education, 396 
U.S. 19 (1969) ____ _____ _______ ___ ____ _____  13

Bowman v. County School Board of Charles City
County, 382 F.2d 326 (4th Cir. 1967) .........................  7

Bradley v. School Board of Richmond, Virginia, 345
F.2d 310 (1965) ............ ........... .......... .....3,8,9,10,13,21

Brewer v. School Board of Norfolk, Virginia, 456 F.2d
943 (4th Cir. 1972) ______________ ______15,16, 26, 29

Brown v. Board of Education of Topeka, 347 U.S. 483
(1954) ................ ............................ ..... ............ ......... 12

Brown v. Board of Education of Topeka, 349 U.S. 294
(1955) ........... .............................................................. 12

Calhoun v. Latimer, 377 U.S. 263 (1964) .....................  12
Callahan v. Wallace, 466 F.2d 59 (5th Cir. 1972) ____  31
Citizens to Preserve Overton Park v. Volpe, 401 U.S.

402 (1971) ............... ....................... ............. ..... ......... 34
. Clark v. Board of Education of Little Rock School 

Dist., 499 F.2d 493 (8th Cir. 1971) cert, denied 405 
U.S. 936 (1972); 369 F.2d 661 (8th Cir. 1966) ........ 5,15



Ill

PAGE

Cooper v. Aaron, 358 U.S. 1 (1958) ......................... 12
Cooper v. Allen, 467 F.2d 836 (5th Cir. 1972) ___ 19, 25, 27

Fleischmann Distilling Corp. v. Maier Brewing Co., 386 
U.S. 714 (1967) ................ ....................................... . 22

Ford v. White, (S.D. Miss., Civil Action No. 1230(N), 
opinion dated Aug. 4, 1972) ..........20, 21, 24, 25, 27, 31-32

Goss v. Board of Education, 373 U.S. 683 (1963) ......  12
Green v. County School Board of New Kent County,

391 U.S. 430 ..................................................4, 7,12,13-14
Griffin v. School Board, 377 U.S. 218 (1964) ..... .......... 12

Hammond v. Housing Authority, 328 F.Supp. 586 (D.
Ore. 1971) ....................... ..... ........... ..........................

Horton v. Lawrence County Board of Education, 449
F.2d 393 (5th Cir. 1971) ________ ________ _____

Housing Authority of City of Durham v. Thorpe, 271 
N.C. 468, 157 S.E.2d 147 (1967) ........... ....................

Internal Improvement Fund v. Greenough, 105 H.S.
527 (1882) ....... ................................ .......................... 5

Jinks v. Mays, 350 F.Supp. 1037 (N.D. Ga. 1972)
19, 24, 25, 31

Johnson v. Coombs, (5th Cir. No. 72-3030, opinion 
dated Dec. 6, 1972) ......... ................... .................... 19

Kelly v. Guinn, 456 F.2d 100 (9th Cir. 1972) .............. 5
Knight v. Auciello, 453 F.2d 852 (1972) ........ ............ 21, 25

La Raza Unida v. Volpe, (N.D. Cal., No. C-71-1166
REP, opinion dated Oct. 19, 1972) ..........21, 22, 25, 27,30

Lee v. Southern Home Sites Corp., 444 F.2d 143 
(1971) ...............................................................18, 24, 26-27

31

5

33



IV

PAGE
Lyle v. Teresi, 327 F.Supp. 683 (D.Minn. 1971)

21, 24, 26-27

McDaniel v. Barresi, 402 U.S. 39 (1971) ............ .........12,14
McEnteggart v. Cataldo, 451 F.2d 1109 (1st Cir. 1971) 5
Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970)

18, 23, 28-29
Monroe v. Board of Commissioners of City of Jackson,

453 F.2d 259 (6th Cir.) cert. den. 406 U.S. 945 (1972) 5

NAACP v. Allen, 340 F.Supp. 703 (M.D. Ala. 1972)
20, 22-24, 26

Newman v. Alabama, 349 F.Supp. 278 (M.D. Ala. 1972)
27, 31

Newman v. Piggie Park Enterprises, 390 U.S. 400 
(1968) ................................................... ........... 5,16,18,27

Ross v. Goshi (D. Hawaii, Civil No. 72-3610, opinion 
dated Dec. 8, 1972) ....................................21, 22, 23, 26-27

Sims v. Amos, 340 F.Supp. 691 (M.D. Ala. 1971)
19, 22, 24, 26-27, 31-32 

Sincock v. Obara, 320 F.Supp. 1098 (D. Del. 1970) .... 31 
Sprague v. Ticonic National Bank, 307 U.S. 164

(1939) .............................. ...........................................5, 28
Swann v. Charlotte-Mecklenburg Board of Education,

402 U.S. 1 (1971) ....... .... .........................................13,14

Thompson v. School Board of the City of Newport 
News (No. 71-2032, opinion dated Nov. 29, 1972) .... 33 

Thorpe v. Housing Authority of Durham, 393 U.S.
268 (1969) ............. .....................................................  33

Trafficante v. Metropolitan Life Insurance Co., 41 U.S.
Law Week 4071 (1972) ........... .............. ..................... 28

Trustees v. Greenough, 105 U.S. 527 (1882) ................ 28



V

PAGE
Wyatt v. Stickney, 344 F.Supp. 387 (M.D. Ala. 1972)

20, 22, 26-27

Yablonski v. United Mine Workers of America, 466 
F.2d 424 (1972) .......................................................... 30

Statutes & Regulations:
28 TJ.S.C. § 1254(1) .......... ............................................. 2

42 U.S.C. § 1983 ...................................................... 2,17, 24
42 U.S.C. § 2000 c-7 ......................... ............................. 17

Other Authorities:
53 F.R.D. 28 ................................................................... 1

Emergency School Aid Act of 1972, 86 Stat. 235, § 718 3



I n  t h e

(tart 0! %  Inttrtu i ’tatrs
October Term, 1972

No.................

C aeolyn  B radley , et al.,

vs.
Petitioners,

T h e  S chool  B oard oe t h e  C it y  oe R ic h m o n d , et at.

PETITION FOB A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

The Petitioners, Carolyn Bradley, et al., respectfully 
pray that a Writ of Certiorari issue to review the judgment 
and opinion of the United States Court of Appeals for the 
Fourth Circuit entered in this proceeding on November 29, 
1972.

O pinions Below

The opinion of the Court of Appeals is not yet reported 
and is reprinted in the Appendix hereto infra, at pp. 34a- 
77a. The opinion of the District Court is reported at 53 
F.R.D. 28, and appears in the Appendix hereto, infra at pp. 
la-33a.

Jurisdiction

The judgment of the Court of Appeals for the Fourth 
Circuit was entered on November 29, 1972. On February



2

21, 1973, Mr. Chief Justice Burger ordered that the time 
for filing a petition for Writ of Certiorari in this case be 
extended to March 29, 1971. This Court’s jurisdiction is 
invoked under 28 U.S.C. § 1254(1).

Question Presented

Did the Court of Appeals err in reversing the District 
Court’s award of attorneys’ fees to successful plaintiffs in 
this school desegregation action?

Statutory Provisions Involved

Section 1 of the Fourteenth Amendment to the United 
States Constitution provides:

All persons born or naturalized in the United States, 
and subject to the jurisdiction thereof, are citizens of 
the United States and of the State wherein they reside. 
No State shall make or enforce any law which shall 
abridge the privileges or immunities of citizens of the 
United States; nor shall any State deprive any person 
of life, liberty, or property, without due process of 
law; nor deny to any person within its jurisdiction the 
equal protection of the laws.

Section 1983, 42 United States Code, provides:
Every person who, under color of any statute, 

ordinance, regulation, custom, or usage, of any State 
or Territory, subjects, or causes to be subjected, any 
citizen of the United States or other person within the 
jurisdiction thereof to the deprivation of any rights, 
privileges, or immunities secured by the Constitution 
and laws, shall be liable to the party injured in an 
action at law, suit in equity, or other proper proceeding 
for redress.



3

Section 718 of the Emergency School Aid Act of 1972, 86 
Stat. 235, provides:

Upon the entry of a final order by a court of the 
United States against a local educational agency, a 
State (or any agency thereof) or the United States (or 
any agency thereof), for failure to comply with any 
provision of this title or for discrimination on the 
basis of race, color, or national origin in violation of 
title VI of the Civil Rights Act of 1964, or the four­
teenth amendment to the Constitution of the United 
States as they pertain to elementary and secondary 
education, the court, in its discretion, upon a finding 
that the proceedings were necessary to bring about 
compliance, may allow the prevailing party, other than 
the United States, a reasonable attorney’s fee as part 
of the costs.

S ta te m e n t o f  th e  Case

This case was commenced in 1961 to desegregate the 
public, schools of Richmond.

In March, 1964, after extended litigation, the District 
Court approved a “freedom of choice” plan proposed by the 
defendant school board. Plaintiffs appealed to the Fourth 
Circuit Court of Appeals, which affirmed the lower court’s 
finding that freedom of choice satisfied the school board’s 
constitutional obligations. Bradley v. School Board of 
Richmond, Virginia, 345 F.2d 310 (1965). Plaintiffs then 
petitioned this Court for a Writ of Certiorari to consider 
the constitutionality of the freedom of choice plan. On 
November 15,1965, this Court declined to review the Fourth 
Circuit’s decision regarding freedom of choice, but did 
grant plaintiffs certain additional relief regarding dis­
crimination in the assignment of teaching personnel. 382 
U.S. 103.



4

On March 30, 1966 the District Court approved a freedom 
of choice plan submitted by the parties. The plan expressly 
stated that freedom of choice would have to be modified if it 
did not produce significant results.

On May 27, 1968, this Court ruled that freedom of choice 
plans were not constitutionally permissible unless they 
actually brought about a unitary non-racial school system. 
Green v. County School Board of New Kent County, 391 
U.S. 430.

On March 10, 1970 plaintiffs moved in the District Court 
for additional relief under Green. The defendant school 
board conceded that the freedom of choice plan under which 
it had been operating was unconstitutional. After consider­
ing a series of alternative and interim plans, the District 
Court on April 5, 1971, approved a plan for the integration 
of the Richmond schools involving pupil reassignments and 
transportation only within the city of Richmond. 325 
P. Supp. 828. The defendant school board took no appeal 
from that decision.1

On August 17, 1970, the District Court directed the 
parties to attempt to reach agreement on the matter of 
attorneys’ fees. When the parties were unable to reach 
such an agreement, memoranda and evidentiary material 
were submitted to the court. On May 26, 1971, the District 
Court awarded plaintiffs attorneys’ fees of $43,355.00 as 
well as costs and expenses of $13,064.65. On appeal the 
Fourth Circuit, Judge Winter dissenting, reversed the 
award of attorneys’ fees.2

1 The defendant City Council of Richmond filed a notice of 
appeal from that decision on April 29, 1971, but on the motion of 
the City Council that appeal was dismissed on May 13, 1971.

Although the school board’s notice of appeal mentions the 
awards of both attorneys’ fees and costs, only the matter of attor­
neys’ fees was briefed, and the Fourth Circuit’s decision does not 
deal with the costs.



5

This Petition deals solely with the litigation concerning 
the schools within the city of Richmond. The subsequent 
orders of the District Court regarding Henrico and Chester­
field Counties, which are the subject of cases Nos. 72-549 
and 72-550 in this Court, are not involved.

Reasons for Granting the Writ

1. T h e  D ecision  B elow  is In co n s is ten t W ith  th e  D ecisions of 
T h is  C o u rt R eg a rd in g  th e  R esp o n sib ility  o f  S ta te  Officials 
to  D ism an tle  D ual Schoo l System s.

This Court has long recognized that in equitable actions 
such as this the courts have the authority and responsibil­
ity to award attorneys’ fees to a prevailing plaintiff where 
such an award is consistent with “fair justice.” Sprague v. 
Ticonic National Bank, 307 U.8. 164, 164-65 (1939); In­
ternal Improvement Fund v. Greenough, 105 U.S. 527 
(1882). Compare Netvman v. Piggie Park Enterprises, 390 
U.S. 400, 402 n.4 (1968). Pursuant to this rule, at least 
five circuits have held that legal fees must be paid in 
school civil rights cases to plaintiffs who should not have 
been compelled to resort to litigation to vindicate their 
clear rights. McEnteggart v. Cataldo, 451 F.2d 1109 (1st 
Cir. 1971); Horton v. Lawrence County Board of Educa­
tion, 449 F.2d 393 (5th Cir. 1971); Monroe v. Board of Com­
missioners of City of Jackson, 453 F.2d 259 (6th Cir.) cert, 
denied 406 U.S. 945 (1972); Clark v. Board of Education 
of Little Rock School Hist., 449 F.2d 493 (8th Cir. 1971); 
cert, denied 405 U.S. 936 (1972); 369 F.2d 661 (8th Cir. 
1966); Kelly v. Guinn, 456 F.2d 100 (9th Cir. 1972).

In March, 1964, the District Court in this case ordered 
the school board to implement a freedom of choice plan 
permitting black and white students to transfer to schools 
which had earlier been limited to pupils of the other race.



6

Plaintiffs appealed that order, urging that the school 
board should be required to go beyond freedom of choice 
to a plan which would actually result in a unitary school 
system. The Court of Appeals, however, affirmed the Dis­
trict Court, a majority of the court taking the position 
that the school board had satisfied its constitutional ob­
jections by granting all students “unrestricted freedom of 
choice as to schools attended,” even if the choices resulted 
in voluntary segregation. 345 F.2d at 316. This Court de­
clined to review that judgment by Writ of Certiorari. 382 
U.S. 103 (1965). The appellate proceedings, however, 
made it clear that the school board’s legal responsibilities 
were not limited to complying with the 1964 freedom of 
choice plan. This Court directed that the District Court 
consider the impact of faculty segregation on the adequacy 
of any desegregation plans, expressly declined to approve 
the merits of the 1964 plan, and cautioned the defendants 
that delays in desegregating school systems were no longer 
tolerable. 382 U.S. at 105. Two of the five Fourth Circuit 
judges expressly cautioned the school board that the plan 
should be reviewed and reappraised to see if it was work­
ing, and reminded it “that the initiative in achieving de­
segregation of the public schools must come from the 
school authorities.” 345 F.2d at 322-324.

On March 30, 1966, the District Court ordered into effect 
a new desegregation plan which went beyond that of 
1964 in several respects. The plan provided that it must 
be evaluated “in terms of results,” and that if the steps 
taken by the school board did not produce “significant 
results . . . the freedom of choice plan will have to be modi­
fied with consideration given to other procedures such as 
boundary lines in certain areas.” Teachers and other staff 
were to be assigned so that no school was identifiable as 
intended for students of a particular race. The school



7

board was forbidden to construct new schools or expand 
old ones in a way designed to perpetuate or support racial 
segregation.

Two years later, on May 27, 1968, this Court unanimously 
condemned freedom of choice plans which did not have the 
effect, in fact, of dismantling* the pre-existing* dual school 
system. Green v. County School Board of New Kent 
County, Virginia, 391 U.S. 430. The Court expressly re­
jected the argument, relied on earlier by the Fourth Cir­
cuit in approving the 1964 Richmond plan, that a school 
board could completely discharge its constitutional obliga­
tions by merely “adopting a plan by which every student, 
regardless of race, may ‘freely’ choose the school he will 
attend.” 391 U.S. at 437. Those obligations required that 
each State eliminate “root and branch” the racial identifica­
tion of its schools which had arisen under State sponsored 
segregation. 391 U.S. a.t 435, 438. Green stated unequiv­
ocally that school boards could not sit idly by maintaining 
unconstitutional school systems until and unless litiga­
tion was commenced against them. 391 U.S. at 438-439.

The message of Green can hardly have been missed by 
the respondent school board in the instant case. The 
Fourth Circuit panel reversed in Green was virtually the 
same as that which had earlier upheld Richmond’s free­
dom of choice plan, the relevant opinions were written by 
the same judge, and the 1967 decision reversed by this 
Court had relied on the earlier decision in this case.3 New

3 Green, reported at 382 F.2d 338, was a per curiam decision 
relying on a decision the same day in Bowman v. County School 
Board of Charles City County, 382 F.2d 326 (4th Cir. 1967). 
The Fourth Circuit’s earlier decision approving free choice in 
Bradley was cited at 382 F.2d 327, n.2. Judges Haynsworth, 
Boreman and Bryan were in the majority in both Bradley and 
Bowman, joined in Bowman by Judge Craven who had been 
appointed subsequent to the 1965 Bradley decision.



8

Kent County itself is located less than 15 miles from the 
City of Richmond.

Despite the indisputable illegality of Richmond’s free­
dom of choice plan under Green, and despite Green’s com­
mand that school boards seize the initiative in meeting 
their constitutional responsibilities, the Richmond school 
board made no effort to change its system to comply with 
the law. When the school board had persisted in defiance 
of Green for almost two years, plaintiffs and their counsel 
were forced once again to assume the burdens of pro­
tracted litigation to gain the constitutional rights to which 
they were clearly entitled.

After plaintiffs moved on March 10, 1970, for addi­
tional relief, the District Court’s findings showed the school 
board was not merely in violation of Green, but of the 
1966 court order as well. The court found that “there was 
generally little change in the racial composition of the 
schools from the inception of the freedom of choice plan” 
to 1970. Bradley v. School Board of City of Richmond, 
Virginia, 317 F. Supp. 555, 561 (E.D. Ya. 1971). Three of 
seven high schools were more than 90% black. Of nine 
middle schools, 3 were over 99% black and 3 were over 
90% white. There were 17 all black elementary schools, 
and another 4 over 99% black, with 15 elementary schools 
over 90% white. Bradley v. School Board of City of Rich­
mond, Virginia, 317 F. Supp. at 560; 338 F. Supp. 55, 71- 
72 (E.D. Va. 1972). Despite the 1966 order, 45 of 66 
schools had faculty and staff in excess of 90% white or 
90% black. 338 F. Supp. at 72. See also 317 F. Supp. at 
560!-561. The District Court found, “Under the freedom 
of choice plan governing Richmond’s schools through 1969- 
70, the faculties of many schools were plainly segregated. 
This fact, standing alone, contributed to the racial iden- 
tifiability of schools, and in all probability it also impaired



9

the process of student body desegregation by personal 
initiative.” Bradley v. School Board of City of Richmond, 
Virginia, 325 F. Supp. 828, 838 (E.D. Ya. 1971). Regard­
ing school construction, also governed by the 1966 decree, 
the District Court found: “School construction policy has 
contributed substantially to the current segregated con­
ditions. Schools have been built and attendance policies 
maintained so that, even ivithin existing school divisions 
and by comparison with the racial ratios prevailing therein, 
new or expanded facilities were racially identifiable. The 
evidence shows that this was purposeful, its immediate 
and intended result was the prolongation and attempted 
perpetuation of segregation within school divisions.” 338 
F. Supp. at 86 (emphasis added).

When the school board was brought back into court by 
plaintiffs in March of 1970, the board could offer no justifi­
cation for the system it had been operating for nearly two 
years in defiance of Green. On March 12, 1970 the District 
Court ordered the defendants to state whether they main­
tained the Richmond schools were being run in accordance 
with the Constitution. On March 19 the defendants filed a 
statement that they “had been advised” the school system 
was not a unitary one. On March 31, after the District 
Court inquired whether this advice had been accepted, the 
school board conceded that the school system was operat­
ing in a manner contrary to constitutional requirements. 
317 F. Supp. at 558.

The District Court based its award of legal fees in large 
measure on the failure of the school board for almost two 
years to satisfy its affirmative obligations under Green. 
See pp. 20a-25a; see also 317 F. Supp. at 560. That court 
reasoned:

School desegregation decisions illustrate the specific 
application of a court’s equitable discretion to allow



10
counsel fees to plaintiffs when the evidence shows ob­
stinate noncompliance with the law or imposition by 
defendants on the judicial process for purposes of 
harassment or delay in affording rights clearly 
owing... .

A prior appellate opinion in this case states that 
district courts should properly exercise their power 
to allow counsel fees only ‘when it is found that the 
bringing of the action should have been unnecessary 
and was compelled by the school board’s unreasonable, 
obstinate obduracy.’ Bradley v. School Board of City 
of Richmond, supra, 345 F.2d at 321. . . .

The Court has already reviewed the course of litiga­
tion. It should be apparent that since 1968 at the latest 
the School Board was clearly in default of its constitu­
tional duty. When hailed into court, moreover, it first 
admitted its noncompliance, then put into contest the 
responsibility for persisting segregation. When liabil­
ity finally was established, it submitted and insisted on 
litigating the merits of so-called desegregation plans 
which could not meet announced judicial guidelines. 
At each stage of the proceedings the School Board’s 
position has been that, given the choice between de­
segregating the schools and committing a contempt of 
court, they would choose the first, but that in any event 
desegregation would only come about by court 
order.. . .

The freedom of choice plan under which Richmond 
was operating clearly wras one such. When this Court 
filed its opinion of August 17, 1970, confirming the 
legal invalidity of that plan, the HEW proposal, and 
the interim plan, it was not propounding new legal doc­
trine. Because the relevant legal standards were clear 
it is not unfair to say that the litigation was unneces­
sary. It achieved, however, substantial delay in the



11

full desegregation of city schools. Courts are not meant 
to be the conventional means by which person’s rights 
are afforded. The law favors settlement and voluntary 
compliance with the law. When parties must institute 
litigation to secure what is plainly due them, it is not 
unfair to characterize a defendant’s conduct as ob­
stinate and unreasonable and as a perversion of the 
purpose of adjudication, which is to settle actual dis­
putes.

It is no argument to the contrary that political reali­
ties may compel school administrators to insist on inte­
gration by judicial decree and that this is the ordinary, 
usual means of achieving compliance with constitu­
tional desegregation standards. If such considerations 
lead parties to mount defenses without hope of suc­
cess, the judicial process is nonetheless imposed upon 
and the plaintiffs are callously put to unreasonable 
and unnecessary expense. Pp. 20a-22a.

The Court of Appeals did not disturb the District Court’s 
findings of fact regarding the school board’s conduct prior 
to plaintiffs’ 1970 motion for further relief. Nor did the 
Fourth Circuit question the rule applied by the District 
Court that legal fees should be allowed where a school 
board forces private citizens to resort to litigation to vindi­
cate their clear right to a unitary school system. Rather, 
the appellate court excused the failure of the defendants 
to dismantle an admittedly illegal dual school system be­
cause (1 ) the school board had received no complaints from 
plaintiffs or others, and (2) the school board faced “vexing 
uncertainties” in framing a new plan of desegregation. 
Pp. 40a-41a. The all too predictable impact of this part of 
the Fourth Circuit’s decision reaches far beyond the prob­
lems of legal fees or the boundaries of the city of Rich­
mond.



12

For almost two decades this Court has admonished school 
boards to seize the initiative in bringing their systems into 
compliance with the Constitution. In Brown IP  the Court 
stated that full implementation of the constitutional princi­
ples enunciated in Brown P might “require solution of 
varied local school problems. School authorities have the 
primary responsibility for elucidating, assessing, and solv­
ing these problems.” 349 U.S. at 299. (emphasis added) 
In Cooper v. Aaron the Court explained that under Brown 
II  school authorities were “duty bound to devote every ef­
fort toward initiating desegregation and bringing about 
the elimination of racial discrimination in the public school 
system.” 358 U.S. 1, 7 (1958). In Green v. County School 
Board of New Kent County the Court reaffirmed that school 
boards were “clearly charged with the affirmative duty to 
take whatever steps might be necessary to convert to a 
unitary school system in which racial discrimination would 
be eliminated root and branch. . . .  [I]t was to this end 
that Brown II  commanded school boards to bend their 
efforts . . . The burden on a school board today is to come 
forward with a plan that promises realistically to work, 
and promises realistically to work now.” 391 U.S. at 437- 
439 (1968); See also McDaniel v. Barresi, 402 U.S. 39, 41 
(1971). The cautious pace of “all deliberate speed” an­
nounced in Brown I  has long since given way to a call for 
immediate action. In 1963 and 1964 this Court announced 
that the context which surrounded the standard of 
Brown I had long since changed. Goss v. Board of Edu­
cation, 373 U.S. 683, 689 (1963); Calhoun v. Latimer, 377 
U.S. 263, 264-65 (1964). Griffin v. School Board announced 
“ [T]he time for mere deliberate speed has run out. . . . ” 
377 U.S. 218, 234 (1964). Seven years ago, in this very

4 Brown v. Board of Education of Topeka, 349 U.S. 294 (1955). 
6 Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).



13

case, the Court declared, “Delays in desegregating school 
systems are no longer tolerable.” Bradley v. School Board 
of Richmond, 382 U.S. 103, 105 (1965). The command in 
Green for integration now has been reiterated in subse­
quent decisions. Alexander v. Holmes County Board of 
Education, 396 U.S. 19, 201 (1969); Swann v. Charlotte- 
MecTdenburg Board of Education, 402 U.S. 1, 13-14 (1971).

This Court’s long standing command that school boards 
seize the initiative in desegregating their schools is now 
a dead letter in the Fourth Circuit. School authorities in 
the five states therein are permitted under the decision of 
the Court of Appeals to continue operating dual school 
systems unless they are pressed with complaints and know 
exactly what desegregation plan they should implement. 
This rule is on its face plainly inconsistent with the opin­
ions of this Court. Few students or parents without the 
assistance and protection of counsel will brave the com­
munity pressures against those who protest segregation. 
Compare Green v. County School Board of Neiv Kent 
County, 391 U.S. 430, 440 n.5 (1968). Virtually any school 
district will be able to claim that, in view of the complex 
problems of pupil assignment, transportation, school con­
struction and financing, it, like the Richmond school board, 
could not foresee the precise plan which would be approved 
by the courts if litigation were commenced. Compare 
Swann v. Charlotte-Mecklenburg Board of Education, 402 
U.S. 1 (1971). Under the Court of Appeals’ decision in 
this case, it is difficult to imagine any circumstances in 
which a school board in the Fourth Circuit could be said 
to have an affirmative obligation to integrate its schools 
without awaiting litigation.

The sweep of the Fourth Circuit’s rule is well illustrated 
by the facts of this case. It has never been claimed, and 
no court has ever held, that the actual reason the school



14

board took no action in the face of Green in 1968 was that 
it had no complaints or did not know what to do. The 
school board never asserted that it spent the 22 months 
after Green trying to formulate a new desegregation plan; 
once litigation commenced, the board was able to devise 
its first proposed plan in 41 days, and its second in 27. 
On the contrary, as late as March, 1970 the school board 
was still equivocating as to the meaning of Green, pp. 
2a-3a, and the District Court found that the general atti­
tude of the authorities was that they would take no steps 
to establish a unitary school system except under court 
order. P. 21a. Whatever “uncertainties” existed before 
or after Swann were as to the tools which the courts could 
use when state officials failed to comply with the law. The 
tools available to school officials themselves are limited 
only by their imagination and practical considerations; 
school boards have always been free to adopt any tech­
niques which worked, even though some might be beyond 
the power of the federal courts to order. Compare Swann 
v. Chariotte-Mecklenburg Board of Education, 402 U.S. 1, 
16 (1971); McDaniel v. Barresi, 402 U.S. 39 (1971). The 
goal to be achieved has always been clear—the creation of 
a unitary school system. Compare Green v. County School 
Board of New Kent County, 391 U.S. 430 (1968). Any un­
certainty on the part of the board as to how to achieve a 
unitary system cannot excuse the board’s decision not to 
try to achieve such a system at all.

When this Court first condemned segregation on the 
basis of race in Brown I  some 19 years ago, school au­
thorities in more than half a dozen states were operating 
dual school systems. Had those authorities stepped for­
ward on their own initiative and begun to integrate their 
schools, the goals of Brown I  would have been achieved 
long ago. Instead, however, many if not most school



15

boards decided to continue to operate dual school systems 
until and unless they were sued by black students and 
their parents. Explaining the circumstances that forced 
plaintiffs to initiate the instant litigation, the Court of 
Appeals noted a decade ago:

Nearly nine years have elapsed since the decisions in 
the Brown v. Board of Education cases and since the 
Supreme Court held racial discrimination in the schools 
to be unconstitutional. The Richmond school author­
ities could not possibly have been unaware of the 
results of litigation involving the school systems of 
other cities in Virginia, notably Norfolk, Alexandria, 
Charlottesville and Roanoke. Despite the knowledge 
which the authorities must have had as to what was 
happening in other nearby communities, the dual at­
tendance areas and ‘feeder’ system have undergone no 
material change. 317 F.2d 429, 437 (4th Cir. 1963)

As Judge Winter noted last year, “Almost all of the burden 
of litigation has been upon the aggrieved plaintiffs and 
those non-profit organizations which have provided them 
with representation.” Bretver v. School Board of Norfolk, 
Virginia,,, 456 F.2d 943, 954 (4th Cir. 1972) ( concurring 
opinion) So long as state authorities persist in such con­
duct, the meager resources available to private litigants 
will be inadequate to deal with the resulting constitutional 
violations.

Nearly two decades after Brown I, recalcitrant state 
officials should not be permitted to force unwilling victims 
of illegal discrimination to bear the constant and crushing 
expense of enforcing their constitutionally accorded rights. 
Clark v. Board of Education of Little Bock School Dist., 
499 F.2d 493 (8th Cir. 1971) cert, denied 405 U.S. 936 
(1972); 369 F.2d 661 (8th Cir. 1966). “The time is now



16

when those who vindicate these civil rights should receive 
fair and equitable compensation from the sources which 
have denied them, even in the absence of any showing of 
‘unreasonable, obdurate obstinacy.’ ” Brewer v. School 
Board of Norfolk, Virginia, 456 F.2d 943, 954 (4th Cir. 
1972) (Winter, J., concurring) cert, denied 406 U.S. 933 
(1972). This Court should grant the Writ sought and re­
affirm that the duty to take affirmative action to dismantle 
dual school systems applies to school officials in the 
Fourth Circuit as well as to those in the rest of the country. 
That responsibility should be enforced by requiring that 
parents and students who are still compelled at this late 
date to resort to litigation to obtain their well established 
rights be paid costs and attorneys’ fees by the recalcitrant 
school board.

2. T h e  D ecision  B elow  C onflicts W ith  th e  D ecisions of 
O th e r  C ou rts  o f  A ppeals a n d  o f  D is tric t C ou rts  as to  
W h e th e r  Legal Fees S h o u ld  Be A w arded  to  P riv a te  P a r tie s  
S u ing  to  E n fo rc e  Im p o r ta n t  C o n g ressio n a l a n d  C o n stitu ­
tio n a l P olic ies.

The District Court further grounded its award of at­
torneys’ fees on its conclusion that full and appropriate 
relief in school desegregation cases under 42 U.S.C. § 1983 
should include such awards. Referring to this Court’s rea­
soning in Newman v. Piggie Park Enterprises, Inc., 390 
TJ.S. 400 (1968), the District Court held with regard to 
school desegregation litigation:

The private lawyer in such a case most accurately 
may be described as ‘a private attorney general.’ 
Whatever the conduct of the defendants may have 
been, it is intolerably anomalous that counsel entrusted 
with guarantying the effectuation of a public policy 
of nondiscrimination as to a large proportion of



17

citizens should be compelled to look to himself or to 
private individuals for the resources needed to make 
his proof. The fulfillment of constitutional guarantees, 
when to do so profoundly alters a key social institution 
and causes reverberations of untraceable extent 
throughout the community is not a private matter, 
Pp. 27a-28a.

The District Court noted that, despite the public importance 
of this type of litigation, it was the sort of enterprise “on 
which any private individual should shudder to embark” 
in view of the cost and difficulty of proving a case for 
injunctive relief, the unlikelihood of damages, and possible 
hostility toward counsel involved in such unpopular causes. 
P. 24a. The court felt it particularly inappropriate that 
officials should be permitted to spend large sums to de­
fend unsuccessfully an unconstitutional school system and 
then refuse to pay the expenses incurred by the plaintiffs 
in forcing the State into compliance with the law. P. 32a. 
The court concluded that it should exercise its broad 
equitable powers under Section 1983 to adopt in this case 
the standard set in Newman v. Piggie Park and award 
legal fees “unless special circumstances would render such 
an award unjust.” P. 28a.

The Fourth Circuit, reversing, held that, in the absence 
of an express statutory authorization, no court could award 
attorneys fees to a private litigant merely because he had 
successfully sued to effectuate an important Congressional 
or Constitutional policy. Pp. 51a-60a. The Fourth Cir­
cuit relied heavily on the absence of any express authoriza­
tion of legal fees for school desegregation cases in 42 
U.S.C. § 1983 or the 1964 Civil Rights Act, 42 U.S.C. § 2000 
c-7, reasoning that such an omission must reflect a pur­
poseful decision by the Congress not to sanction attorney’s



18

fees for enforcing that statute involved. Pp. 54a-55a. 
Noting that this Court had recently awarded legal fees in 
the absence of express statutory authority in Mills v. 
Electric Auto-Lite Co., 396 U.S. 375 (1970), the Fourth 
Circuit held that fees had been awarded in Mills solely 
because the plaintiff-stockholder there had benefitted other 
stockholders by forcing the accurate disclosure of the rele­
vant terms in a proposed corporate merger. The court 
rejected the suggestion that the result in Mills was based 
on any effect the litigation might have had in enforcing 
the public policies contained in the Securities Exchange 
Act. Pp. 55a-56a. The Court of Appeals noted that any 
rule sanctioning legal fees for enforcing important public 
policies might lead to the award of such fees in reappor­
tionment, environmental protection or First Amendment 
cases. P. 56a. Unwilling to reach such a conclusion, the 
Fourth Circuit refused to permit the award of attorneys’ 
fees to private litigants merely because they had func­
tioned as private attorneys general.

The rule adopted by the District Court and rejected by 
the Court of Appeals has been expressly approved by two 
Courts of Appeals, one three judge court, and six District 
Courts in eleven different decisions.

In Lee v. Southern Home Sites Corp., 444 F.2d 143 
(1971), the Fifth Circuit directed the award of legal fees 
on the ground that the plaintiff there had effectuated im­
portant policies by obtaining an injunction against hous­
ing discrimination. Quoting this Court’s opinion in New­
man v. Piggie Park Enterprises, 390 U.S. 400 (1968), the 
court concluded:

We think the factors relied on in Piggie Park in 
interpreting the provision for awarding attorney’s 
fees apply also to suits under § 1982. The policy



19

against discrimination in the sale or rental of prop­
erty is equally strong. The statute, under present judi­
cial development, depends entirely on private enforce­
ment. Although damages may he available . . . in 
many cases, there may be no damages or damages 
difficult to prove. To ensure that individual litigants 
are willing to act as ‘private attorneys general’ to 
effectuate the public purposes of the statute, attorney’s 
fees should be available as under 42 U.S.C. § 3612(c).6 
444 F.2d at 147-48.

The reasoning in Lee was in no way limited to housing- 
discrimination suits under § 1982. The Fifth Circuit sub­
sequently applied the same Newman standard for legal 
fees in an employment discrimination case against the 
City of Atlanta, stating simply “There is no relevant dis­
tinction between a section 1982 suit and a section 1981 suit 
such as this one.” Cooper v. Allen, 467 F.2d 836, 841 (5th 
Cir., 1972).7 A more recent district court decision apply­
ing Lee and Cooper reached the obvious conclusion that 
“[i]t would be equally difficult to distinguish §1981 and 
§ 1982 suits from § 1983 suits, such as this one” ; adopting 
the Neivman standard and finding no special circumstances 
which would render an award unjust, the court directed 
the payment of legal fees to the plaintiff in a section 1983 
action in order to encourage litigation “to vindicate the 
federal rights of our citizens.” Jinks v. Mays, 350 F. Supp. 
1037, 1038 (N.D. Ga. 1972). In Sims v. Amos, 340 F. Supp. 
691 (M.D. Ala. 1971) a § 1983 reapportionment case, the 
three judge panel also awarded legal fees on the grounds 
rejected by the Fourth Circuit in this case:

6 This is the statute involved in Newman.
7 Six Fifth Circuit judges participated in Lee and Cooper. An­

other Fifth Circuit panel appears to have taken a position incon­
sistent with Lee and Cooper in Johnson v. Coombs (5th Cir., No. 
72-3030, opinion dated December 6, 1972).



20

In instituting the case sub judice plaintiffs have served 
in the capacity of “private attorneys general” seeking 
to enforce the rights of the class they represent. See 
generally Newman v. Piggie Park Enterprises. . . . 
If, pursuant to this action, plaintiffs have benefitted 
their class and have effectuated a strong congressional 
policy, they are entitled to attorneys’ fees regardless 
of defendants’ good or bad faith. See Mills v. Electric 
Auto-Lite Co. . . . Indeed, under such circumstances, 
the award loses much of its discretionary character 
and becomes a part of the effective remedy a court 
should fashion to encourage public-minded suits, id., 
and to carry out congressional policy. 340 F. Supp. 
at 694.

Within the Fifth Circuit, legal fees for private attorneys 
general have also been awarded in Ford v. White, (S.D. 
Miss., Civil Action No. 1230(N), opinion dated August 4, 
1972), Wyatt v. Stickney, 344 F. Supp, 387 (M.D. Ala. 
1972), and NAACP v. Allen, 340 F. Supp. 703 (M.D. Ala. 
1972).

The rule applied by the District Court in this case has 
also been adopted in the First Circuit. Reversing a denial 
of legal fees in a § 1982 housing discrimination case, that 
court of appeals cited Newman and Lee and explained:

The violation of an important public policy may in­
volve little by way of actual damages, so far as a 
single individual is concerned, or little in comparison 
with the cost of vindication, as the case at bar illus­
trates. If a defendant may feel that the cost of litiga­
tion, and particularly that the financial circumstances 
of an injured party may mean that the chances of suit 
being brought, or continued in the face of opposition, 
will be small, there will be little brake upon deliberate



21

wrongdoing. In such instances public policy may sug­
gest an award of costs that will remove the burden 
from the shoulders of the plaintiff seeking to vindicate 
the public right.

Knight v. Auciello, 453 F.2d 852, 853 (1972).
Legal fees for private attorneys general have recently 

been sanctioned by district courts in the Eighth and Ninth 
Circuits. In La Rasa Unida v. Volpe, the court, relying on 
the Fifth Circuit decision cited above, explained:

The rule briefly stated is that whenever there is noth­
ing in a statutory scheme which might be interpreted 
as precluding it, a “private attorney-general” should 
be awarded attorneys’ fees when he has effectuated a 
strong Congressional policy which has benefited a large 
class of people, and where further the necessity and 
financial burden of private enforcement are such as to 
make the award essential. (N.D. Cal., No. C-71-1166 
RFP, opinion dated October 19, 1972).

See also Ross v. Goshi, (D. Hawaii, Civil No. 72-3610, 
opinion dated December 8, 1972); Lyle v. Teresi, 327 
F. Supp. 683 (D. Minn. 1971).

The Fourth Circuit’s decision is openly critical of the 
Fifth Circuit’s opinion in Lee v. Southern Home Sites Corp., 
pp. 55a n.47 and 58a and expressly disapproves the result 
reached by the three judge court in Sims v. Amos, p. 53a. 
In turn, six of the decisions approving legal fees for 
private attorneys general expressly rely on the very dis­
trict court decision reversed by the Fourth Circuit in this 
case, Bradley v. School Board of the City of Richmond, 
Virginia, 53 F.R.D. 28 (E.D. Va. 1971). La Rasa Unida 
v. Volpe, (N.D. Cal., No. C-71-1166 RFP, opinion dated 
October 19, 1972); Ford v. White, (S.D. Miss., Civil Action



22

No. 1230(N), opinion dated August 5, 1972); Boss v. GosM, 
(D. Hawaii, Civil No. 72-3610, opinion dated December 8, 
1972); Wyatt v. Stickney, 344 F. Supp. 387, 409 (M.D. Ala. 
1972); NAACP v. Allen, 340 F. Supp. 703, 710 (M.D. Ala. 
1972); Sims v. Amos, 340 F. Supp. 691, 694 (M.D. Ala. 
1972). Although the Fourth Circuit expressly disapproved 
legal fees for private attorneys general in reapportion­
ment, First Amendment, and environmental protection 
cases, other courts outside that circuit have awarded such 
fees in just such cases. La Baza Unida v. Volpe, (N.D. Cal., 
No. C-71-1166 RFP, opinion dated October 19, 1972 (en­
vironmental protection); Boss v. Goshi, (D. Hawaii, Civil 
No. 72-3610), opinion dated December 8, 1972) (First 
Amendment); Sims v. Amos, 340 F. Supp. 691 (M.D. Ala. 
1972) (reapportionment).

At least five decisions have considered and rejected the 
Fourth Circuit’s argument that the mere absence of an 
express authorization of legal fees precludes such fees for 
private attorneys general, at least in civil rights cases. In 
Lee v. Southern Home Sites Corp., the Fifth Circuit dis­
tinguished Fleischmann Distilling Corp. v. Maier Brewing 
iCo., 386 U.S. 714 (1967) relied on below, p. 54a, noting 
that, like section 1983, section 1982 “is not a statute pro­
viding detailed remedies, and thus the policy of effectuating 
Congressional purpose does not militate against an award 
of attorney’s fees.” 444 F.2d 143, 145 (1971). In Boss v. 
Goshi the court held:

The statutes which are the basis of relief on the merits 
do not specifically provide for the awarding of fees, 
and the general rule is that fees are not recoverable 
absent an express authorization. The courts have, 
however, . . . recognized that “whenever there is noth­
ing in a statutory scheme might be interpreted as pre­
cluding it, a private attorney should be awarded at-



23

torneys’ fees . . . ” Fleischmann Distilling Corp. v. 
Maier Brewing Go., 386 U.S. 714 (1968), cited by De­
fendants, is not to the contrary. That case involved an 
area of the law . . . where Congress has prescribed 
such “intricate remedies” that the absence of statutory 
authorization for attorneys’ fees must be read as an 
intent to prohibit such awards. Section 1983, on the 
other hand, is not a statute providing detailed reme­
dies, and there is no reason to infer any congressional 
intent to limit the otherwise broad equitable powers 
of this court. (D. Hawaii, Civil No. 72-3610, opinion 
dated December 8, 1972).

NAACP v. Allen held, “With regard to an award of attor­
neys’ fees, it is of no consequence that 42 U.S.C. § 1983, the 
statute under which plaintiffs filed this suit, is silent on 
the availability of such an award.” 340 F. Supp. 703, 709- 
710, n.7 (M.D. Ala. 1972). In Sims v. Amos the three judge 
panel similarly concluded “It is of no consequence that the 
statute under which plaintiffs filed this suit, 42 U.S.C. 
§ 1983, is silent on the availability of attorneys’ fee.” 340 
F. Supp. 691, 695 (M.D. Ala. 1972). The conclusions 
reached by the Fourth Circuit in this regard are clearly at 
odds with this Court’s recent holding that the mere absence 
of a provision for attorneys fees does not evince “a pur­
pose to circumscribe the courts’ power to grant appropri­
ate remedies.” Mills v. Electric Auto-Lite Co., 396 U.S. 
375, 391 (1970).

Although the Fourth Circuit barred legal fees to private 
attorneys general under § 1983 because that section makes 
no express reference to such fees, at least six decisions 
have actually awarded legal fees to private attorneys gen­
eral suing to enforce that very section. Boss v. Goshi, 
(D. Hawaii, Civil No. 72-3610, opinion dated December 8,



24

1972); Fordv. White, (S.D. Miss., Civil Action No. 1230(N), 
opinion dated August 4, 1972); Jinks v. Mays, 350 F. Supp. 
1037 (N.D. Ga. 1972); NAACP v. Alien, 340 F. Supp. 703 
(M.D. Ala. 1972); Sims v. Amos, 340 F. Supp. 691 (M.D. 
Ala. 1972); Lyle v. Teresi, 327 F. Supp. 683 (D. Minn. 
1971).8

In awarding legal fees in Mills v. Electric Auto-Lite Go., 
this Court relied, not only on the benefit which the plaintiffs 
there had conferred on the corporation and stockholders 
involved, but also on “the stress placed by Congress on the 
importance of fair and informed corporate suffrage,” and 
the fact that litigation provided “an important means of 
enforcement of the proxy statute.” 396 U.S. 375, 396. 
Despite this language, the Fourth Circuit held that the re­
sult in Mills was based on “conferral of benefits, not policy 
enforcement.” P. 55a. Two of the federal courts sanction­
ing legal fees for private attorneys general have read Mills 
differently, concluding that the language quoted authorizes 
legal fees for enforcing important public policies. In Lee 
v. Southern Home Sites, 444 F.2cl 143,145 (1971), the Fifth 
Circuit held that the decision in Mills “is better understood 
as resting heavily on its acknowledgment of ‘overriding 
considerations’ that private suits are necessary to effectu­
ate congressional policy and that awards of attorney’s fees 
are necessary to encourage private litigants to initiate 
such suits.” The court in La Rasa Unida v. Volpe, con­
cluded that Mills authorized legal fees either when a benefit 
was conferred or important policies effectuated. “Mills, 
then, represents both the defensive and offensive use of

8 The fact that Congress did not mention legal fees in school 
desegregation cases when it enacted the 1964 Civil Rights Act 
cannot limit the broad authority to provide full relief in such 
cases conferred upon the courts in 1871 with the enactment of 
42 TJ.S.C. §1983. Furthermore, no judicial remedies with respect 
to school desegregation were created by the 1964 Act. Compare 
Newman v. Piggie Park Enterprises, supra.



25

the Court’s equitable powers. Defensive, to prevent unjust 
enrichment of free riders and offensive, to promote the 
effective implementation of the Congressional objective of 
fair and informed corporate suffrage.” (N.I). Cal., No. 
C-71-1166 RFP, opinion dated October 19, 1972). The con­
struction of Mills in Lee and La Rasa Unida is clearly 
inconsistent with that stated by the Fourth Circuit.

The Fourth Circuit sought to minimize the obvious con­
flict between its own decision and those in other circuits 
by urging “in all the cases where the right to make an 
award for policy reasons has been stated, it has been stated 
simply as an alternative ground to a finding of unreason­
able obduracy,” p. 59a, n.56. This is simply incorrect. In 
three of the private attorney general cases noted above 
the court expressly found there was not unreasonable ob­
duracy. La Rasa Unida v. Volpe, (N.D. Cal., No. C-71-1166 
RFP, opinion dated October 19, 1972 ;9 Ford v. White, 
(S.D. Miss., Civ. No. 1230(N), opinion dated August 5, 
1972) ;10 Jinks v. Mays, 350 F. Supp. 1037, 1038 (N.D. Ga. 
1972).11 In four decisions awarding attorneys fees to pri­
vate litigants enforcing important congressional policies, 
the courts made no finding either way regarding obduracy 
by the defendants. Cooper v. Allen, 467 F.2d 836 (5th Cir. 
1972); Knight v. Auciello, 453 F.2d 853 (1st Cir. 1972);

9 “La Baza involved complicated legal questions; by no means 
were the duties of the state clear, and the court reaffirms its earlier 
findings that the State Highway Department did not behave in 
bad faith . . . .  [Defendants’ errors and conduct falls short of 
obdurate behavior.”

10 “The plaintiffs do not base their claim for attorneys’ fees on 
any bad faith or unreasonableness on the part of the defendants. 
Prom the outset, the defendants and their attorney worked closely 
with the attorneys for the plaintiffs as is evidence by the final 
resolution of this case by a Consent Decree.”

11 “In its written opinion the Fifth Circuit pointed out that the 
reeord in this case is devoid of evidence of any bad faith or unlaw­
ful motive on the part of defendants.”



26

Ross v. Goshi, (D. Hawaii, Civil No. 72-3610, opinion dated 
December 8, 1972); Lyle v. Teresi, 327 F. Supp. 683 (D. 
Minn. 1971). In four of the private attorney general cases 
the court did find the defendants guilty of unreasonable 
conduct. In each of these decisions, however, the court 
carefully stated that it was basing its decision not on this 
conduct, but on the more general rule announced favoring 
legal fees for private litigants effectuating public purposes. 
Lee v. Southern Home Sites Corp., 444 F.2d 143, 144 (5th 
Cir. 1971) ;12 Wyatt v. Stickney, 344 F. Supp. 387, 408 
(M.D. Ala. 1972) ;13 NAACP v. Allen, 340 F. Supp. 703, 708 
(M.D. Ala. 1972) ;14 Sims v. Amos, 340 F. Supp. 691, 694 
(M.D. Ala. 1972).15

Plaintiffs would urge that the District Court in this 
case, and the eleven decisions agreeing with it, correctly 
conclude that the inherent equitable powers of the courts 
include the authority to award legal fees to a private liti­
gant who has succeeded in effectuating an important con­
gressional or constitutional policy. The integration of 
public schools is one of the most vital of those policies, 
and the burden of such litigation has been borne largely 
by private parties, Brewer v. School Board of Norfolk, 
Virginia, 4o6 F.2d 943, 954 (4th Cir. 1972) (concurring 
opinion.) The question of legal fees for private attorneys 
general in cases such as this is a matter of substantial 
and growing importance; although the idea was largely

12 “We base our holding, however, on a broader ground.”
13 “A second, and more appropriate, justification for the Court’s 

award. . . .”
14 “This court, however, feels that the attorneys’ fee award should 

be premised on a broader basis than defendants’ bad faith.”
15 “Nevertheless, a finding of bad faith is not always a pre­

requisite to the taxing of attorneys’ fees against defendants, and 
in this case, despite the availability of that ground, the Court has 
decided to base its award on far broader considerations of equity.”



27

undeveloped prior to this Court’s decision in Newman v. 
Piggie Park Enterprises, 390 TT.S. 400 (1968), the pro­
priety of awarding such fees was decided in three lower 
court cases in 1971 and 10 in 1972. The problem is not 
limited to legal fees in school cases—attorneys’ fees have 
been awarded to private attorneys general in cases involv­
ing reapportionment,16 free speech,17 environmental pro­
tection,18 housing relocation,19 jury discrimination,20 dis­
crimination in public employment,21 discrimination in the 
sale or rental of housing,22 conditions in institutions for 
the retarded and mentally ill,23 adequacy of medical facil­
ities in prisons,24 and discriminatory prosecution and police 
harassment.26 Although attorneys’ fees for private attor­
neys general are forbidden in the Fourth Circuit absent 
an express statutory authorization, such fees are actually 
being awarded in the First, Fifth, Eighth and Ninth Cir­
cuits. Only this Court can establish a uniform Federal rule 
regarding this question.

16 Sims v. Amos, 340 F. Supp. 691 (M.D. Ala. 1972).
17 Boss v. Goshi (D. Hawaii, Civ. No. 72-3610, opinion dated 

December 8, 1972).
18 La Baza Unida v. Volpe (N.D. Cal., No. C-71-1166 KFP, opin­

ion dated October 19, 1972).
19 Id.
20 Ford v. White (S.D. Miss., No. Civ. 1230(N), opinion dated 

August 4, 1972).
21 Cooper v. Allen, 467 F.2d 836 (5th Cir. 1972); NAACP v. 

Allen, 340 F. Supp. 703 (M.D. Ala. 1972) ; Jinks v. Mays, 350 
F. Supp. 1037 (N.D. Ga. 1972).

22 Lee v. Southern Home Sites Corp., 444 F.2d 143 (5th Cir. 
1971) ; Knight v. Auciello, 453 F.2d 853 (1st Cir. 1972).

23 Wyatt v. Stickney, 344 F. Supp. 387 (M.D. Ala. 1972).
24 Newman v. Alabama, 349 F. Supp. 278 (M.D. Ala. 1972).
25 Lyle v. Teresi, 327 F. Supp. 683 (D. Minn. 1971).



28

3. The Decision Below Conflicts With the Decisions of This 
Court and Other Courts of Appeals as to When Legal Fees 
Should Be Awarded to Plaintiffs Who Have Secured Relief 
Benefitting a Class.

For almost a century this Court has sanctioned the 
award of attorneys’ fees to a plaintiff who has successfully 
maintained a suit that benefits a group of others in the 
same manner as himself. Trustees v. Greenough, 105 U.S. 
527, 531-537 (1882). The foundation for this practice is 
the original authority of the chancellor to do equity in a 
particular situation. Sprague v. Ticonic Nat. Bank, 307 
U.S. 161 (1939). To allow the others to obtain full benefit 
from the plaintiffs’ efforts without contributing equally 
to the litigation expenses would be to enrich the others 
unjustly at the plaintiffs’ expense. In its most recent re­
statements of this doctrine, this Court held that legal 
fees should be awarded even though the litigation had not 
created a fund from which those expenses could be de­
ducted. Mills v. Electric Auto-Lite Co., 396 U.S. 375, 392- 
OS (1970); Sprague v. Ticonic Nat. Bank, 301 U.S. 161, 166 
(1939).

In the instant litigation plaintiffs seek legal fees inter 
alia on the ground that their successful effort to integrate 
the Richmond schools benefitted a large group other than 
themselves. The beneficiaries include not only the many 
thousands of black public school students spared the con­
sequences of an inherently unequal separate education, 
but also the white students involved . Compare Trafjicante 
v. Metropolitan Life Insurance Company, 41 U.S. Law 
Week 4071 (1972). The most appropriate device for shar­
ing the cost of plaintiffs’ successful litigation among all 
the student beneficiaries is to impose that cost on the 
school board, since the board’s funds are raised from the 
entire population and are to be used for the benefit of



29

Richmond’s school children. Compare Mills v. Electric 
Auto-Lite Co., 396 U. S. 375, 393-94 (1970).

While this appeal was pending* the Fourth Circuit an­
nounced its interpretation of Mills, Sprague and Green- 
ough in Brewer v. School Board of City of Norfolk, Vir­
ginia, 456 F.2d 943, cert, denied 406 U.S. 933 (1972). In 
Brewer the plaintiffs obtained in the district court a sub­
stantial restructuring of Norfolk’s school system, including 
the pairing and clustering of schools and the reassignment 
of large numbers of students. On appeal the Fourth Cir­
cuit also directed, at plaintiff’s behest, that the school 
board furnish free transportation to students who were not 
within walking distance of their new schools. 456 F.2d 
943, 946-948. The Fourth Circuit awarded attorneys fees 
for plaintiffs’ efforts in obtaining free transportation, on 
the ground that the benefit involved was “pecuniary” in 
nature. 456 F.2d 943, 951-52. Since the benefits of an inte­
grated education also obtained by plaintiffs for the class 
were not deemed pecuniary, legal fees for this aspect of 
the litigation were denied.26

In the instant case the benefit claimed to have been con­
ferred by plaintiffs on the class of students was precisely 
the type of benefit rejected as not pecuniary in Brewer— 
an integrated education. Accordingly, the Fourth Circuit 
held that, under Brewer, legal fees could only be obtained 
in this case on a showing that the school officials had shown 
unreasonable, obdurate obstinacy. Pp. 35a and 54a.

The requirement of Brewer, applied in this case, that 
legal fees for benefitting a class only be awarded for bene-

26 On remand the district court awarded attorneys fees for legal 
services in securing free transportation, but awarded no fees for 
the far more extensive services which resulted in Norfolk’s general 
desegregation plan. Unreported opinion of Judge MacKenzie dated 
January 22, 1973.



30

fits of a pecuniary nature, is completely at odds with the 
decisions of this Court and lower federal courts. In Mills 
v. Electric Auto-Lite Co. this Court expressly reputed any 
such requirement that the benefit be pecuniary:

The fact that this suit has not yet produced, and may 
never produce, a monetary recovery from which the 
fees could be paid does not preclude an award based 
on this rationale. Although the earliest cases recog­
nizing a right to reimbursement involved litigation that 
had produced or preserved a ‘common fund’ for the 
benefit of a group, nothing in these cases indicates that 
the suit must actually bring money into court as a 
prerequisite to the court’s power to order reimburse­
ment of expenses. . . . [A]n increasing number of 
lower courts have acknowledged that a corporation 
may receive a ‘substantial benefit’ from a derivative 
suit, regardless of whether the benefit is 'pecuniary in 
nature. . . .  [I] t may be impossible to assign monetary 
value to the benefit. Nevertheless . . . petitioners have 
rendered a substantial service to the corporation and 
its shareholders. 396 U.S. at 392, 395-396. (Emphasis 
added)

Taking this unambiguous language to mean what it said, 
the Court of Appeals for the District of Columbia recently 
awarded legal fees in another case on the ground, inter 
alia, that “ [T]he Supreme Court made clear in Mills that 
the judicial power to award counsel fees does not depend 
upon . . . whether the benefit conferred is pecuniary in 
nature.” Yablonski v. United Mine Workers of America, 
466 F.2d 424, 431 n.10 (1972). See also La Rasa Unida v. 
Volpe, (N.D. Cal., October 19, 1972, No. C-71-1166 RFP 
opinion dated October 19, 1972) {“Mills extended the scope 
of the common-fund justification for the awarding of fees



31

by holding that no pecuniary benefit need be demon­
strated.”)

Relying on this Court’s opinion in Mills, Federal courts 
have repeatedly awarded legal fees under circumstances 
not involving the “pecuniary benefit” required by the 
Fourth Circuit. In Yablonski v. United Mine Workers of 
America, attorneys’ fees were awarded for four successful 
lawsuits aimed at guaranteeing free and fair elections with­
in a labor union. 466 F.2d 424 (D.C. Cir., 1972). Legal fees 
have also been awarded in litigation regarding constitu­
tionally inadequate medical facilities for prisoners and dis­
crimination in public housing, Hammond v. Housing Au­
thority, 328 F. Supp. 586 (D. Ore. 1971); Newman v. State 
of Alabama, 349 F. Supp. 278 (M.D. Ala. 1972). See also 
Jinks v. Mays, 350 F. Supp. 1037 (N.D. Ga. 1972); Callahan 
v. Wallace, 466 F.2d 59 (5th Cir. 1972); Sincock v. Ohara, 
320 F. Supp. 1098 (D.Del. 1970). Decisions awarding legal 
fees to plaintiffs who both effectuate public policies and 
benefit others have done so for such non-pecuniary bene­
fits as legislative reapportionment, Sims v. Amos, 340 
F. Supp. 691 (M.D. Ala. 1972) and ending jury discrimina­
tion, Ford v. White, (S.D. Miss., Civ. Act. No. 1230 (N ); 
opinion dated August 4, 1972).

The Fourth Circuit’s disagreement with Mills and its 
progeny is thinly veiled at best. Mills itself is character­
ized as “an uneasy half-way house” between “the traditional 
position” and “universal fee shifting from the successful 
party. P. o9a. Lee is described as sanctioning “excessive 
judicial discretion that may emasculate the general rule 
against fee awards and inject more unpredictability into 
the judicial process.” P. 58a, The Court of Appeals ex­
pressly opposed a rule allowing awards in reapportionment 
cases, while noting that just such an award had been made 
m Sims. P. 57a. The very District Court decision reversed



32

by the Fourth Circuit in this case, awarding legal fees to 
the instant plaintiffs, was cited with approval by two of 
the federal courts approving legal fees for non-pecuniary 
benefits under Mills. Ford v. White, (S.D. Miss., No. Civ. 
1230 (N), opinion dated August 4, 1972)); Sims v. Amos, 
340 F. Supp. 691, 694 (M.D. Ala. 1972).

Only this Court can end the confusion and inconsistency 
which plainly exists as to whether, particularly in civil 
rights cases, legal fees can be awarded to plaintiffs who 
benefit others in a non-pecuniary manner.

4 . T h e  D ecision  B elow  C onflicts W ith  th e  D ecision  o f  T h is 
C o u rt as to  W h en  F e d e ra l S ta tu te s  M ust b e  A pp lied  
R etroactive ly .

While the legal fees portion of this litigation was pend­
ing on appeal, Congress enacted new legislation mandating 
the award of legal fees in school desegregation cases. 
Section 718 of the Emergency School Aid Act of 1972, 
which became effective on July 1, 1972, provides:

Upon the entry of a final order by a court of the 
United States against a local educational agency, a 
State (or any agency thereof) or the United States 
(or any agency thereof), for failure to comply with 
any provision of this title or for discrimination on the 
basis of race, color, or national origin in violation of 
title VI of the Civil Rights Act of 1964, or the four­
teenth amendment to the Constitution of the United 
States as they pertain to elementary and secondary 
education, the court, in its discretion, upon a finding 
that the proceedings were necessary to bring about 
compliance, may allow the prevailing party, other than 
the United States, a reasonable attorney’s fee as part 
of the costs.



33

Plaintiffs brought this statute to the attention of the 
Court of Appeals and urged that it entitled them to legal 
fees in the instant case.

After an en banc hearing the Fourth Circuit refused to 
apply section 718 to legal services rendered prior to June 
30, 1972. P . 61a. In a companion case, Thompson v. School 
Board of the City of Newport News, the Court explained 
tersely, and without citation, that this result was compelled 
by “the principle that legislation is not to be given retro­
spective effect to prior events unless Congress has clearly 
indicated an intention to have the statute applied in that 
manner.” (No. 71-2032, opinion dated November 29, 1972). 
Pp. 78a-81a.

The origin of the “principle” relied on by the Court of 
Appeals is not explained. The Fourth Circuit’s principle 
appears to be the very same principle announced by the 
Supreme Court of North Carolina five years earlier: “The 
First rule of construction is that legislation [and direc­
tives] must be considered as addressed to the future, not 
the past. . . . [A] retrospective operation will not be 
given to a statute [or directive] which interferes with ante­
cedent rights unless such be ‘the unequivocal and inflexible 
import of its terms, and the manifest intention of the 
legislature.’ ” 27

The principle of the North Carolina Supreme Court, 
apparently revived by the Fourth Circuit, was unanimously 
rejected by this Court on certiorari. The general rule, 
the Court stated in Thorpe v. Housing Authority of Dur­
ham, “is that an appellate court must apply the law in 
effect at the time it renders its decision. . . . ‘A change in 
the law between a nisi prius and an appellate decision 
requires the appellate court to apply the changed law’ . .

21 Housing Authority of City of Durham v. Thorpe, 271 NC 
468, 470, 157 S.E. 2d 147, 149 (1967).



34

‘[I]f subsequent to the judgment and before tlie decision 
of the appellate court, a law intervenes and positively 
changes the rule which governs, the law must be obeyed, 
or its obligation denied. . . . This same reasoning has been 
applied where the change was constitutional, statutory, or 
judicial.” 393 U.S. 268, 281-282 (1969). The Fourth Cir­
cuit did not argue that this ease involves any of the ac­
knowledged exceptions to the rule in Thorpe. See 393 
U.S. 268, 282. The decision of the Fourth Circuit an­
nounced in this case and Thompson, limiting section 718 
to legal services rendered after June 30, 1972, is plainly 
inconsistent with this Court’s decision in Thorpe and must 
be reversed. See also Citizens to Preserve Overton Park 
v. Volpe, 401 U.S. 402, 418-420 (1971).

The Fourth Circuit further grounded its refusal to apply 
§ 718 to this case on the fact that no final order regarding 
the merits of this case was pending on appeal on June 30, 
1972. The reason why the Court of Appeals thought this 
fact significant is unclear. Judge Winter, dissenting, reads 
the majority as holding that legal fees can only be awarded 
under § 718 if that award is made simultaneous with the 
decision on the merits. Pp. 75a-77a.28 Such a rule makes 
no sense whatever, and can only serve to frustrate the 
congressional purposes behind the new statute. See p. 76a. 
It is possible, alternatively, that the Fourth Circuit was 
announcing a new rule on retroactivity, requiring not only 
the question of legal fees but also the merits of the deseg­
regation litigation to be pending on appeal when the new 
statute was enacted. Plaintiffs conceive of no warrant for 
such a rule. Thorpe clearly requires that new laws be ap­
plied to pending controversies regardless of whether other 
controversies between the same parties have been finally 
decided.

28 In fact the question of legal fees was pending before the Dis­
trict Court when the plan of April 5, 1971, was approved.



35

CONCLUSION

For these reasons, a Writ of Certiorari should issue to 
review the judgment and opinion of the Fourth Circuit.

J ack  G r een berg

J a m es  M. N a b r it , III
N orm an  J .  C h a c h k in

C h a r les  S t e p h e n  R alston

E ric  S ci-in a p p e r

10 Columbus Circle 
New York, New York 10019

Loins R. L ucas

525 Commerce Title Building 
Memphis, Tennessee 38103

J a m es  R. Ol p h in

214 East Clay Street 
Richmond, Virginia 23219

M. R a l p h  P age

420 North First Street 
Richmond, Virginia 23219

Counsel for Petitioners



APPENDIX



Memorandum Opinion of District Court 
in Bradley Action

I n t h e

UNITED STATES DISTRICT COURT 
F oe t h e  E a stern  D ist r ic t  of V ir g in ia  

R ic h m o n d  D iv isio n  

C iv il  A ction  N o. 3353-R

C arolyn  B radley , e tc ., et al., 
v.

T h e  S chool  B oard oe t h e  
C it y  oe R ic h m o n d , V ir g in ia , et al.

This class action, brought ten years ago in an effort to 
end racial discrimination in the operation of public schools 
in Richmond, Virginia, is before the Court on a motion for 
attorneys’ fees. An appropriate ruling on the pending mo­
tion requires an abridged review of events since March of 
1970.

On March 10, 1970, a motion for further relief was filed 
in this case, and after extensive hearings this Court or­
dered into effect an interim desegregation plan prepared 
by the School Board for the school year 1970-71, Bradley 
v. School Board of City of Richmond, 317 F. Supp. 555 
(E.D. Va. 1970), and later, a plan for 1971-72, Id., 325 
F. Supp. 828 (E.D. Va. April 5, 1971). Appended to the 
motion for further relief was an application for an award 
of reasonable attorneys’ fees, to be paid by the City School 
Board. In light of the defendants’ conduct before and dur-



2a

Memorandum Opinion of District Court 
in Bradley Action

ing litigation, and by reason of the unique character of 
school desegregation suits, justice requires that fees should 
be awarded.

This case lay dormant from 1966 until the motion of 
March, 1970. During that period the city schools were 
operated under a free choice system of pupil assignment. 
The plan was approved by the court of appeals, Bradley 
v. School Board of City of Richmond, 315 F.2d 310 (4th 
Cir. 1965), but the case was remanded for further hearings 
on faculty assignments by the Supreme Court, Bradley v. 
School Board of the City of Richmond, 382 U.S. 103 (1965). 
After some further district court proceedings the case lay 
idle until 1970.

When the suit was reactivated the defendants were di­
rected, pursuant to this Court’s usual practice in school 
desegregation cases, to state on the record whether they 
contended that the schools were then operating as a unitary 
system, and, if not, what period of time would be required 
to formulate a constitutional plan. In open court, albeit 
reluctantly, the defendants admitted that the Constitution 
was not being complied with 51 they were ordered on April 
1, 1970, to submit a unitary plan on or before May 11, 1970. 
Hearings were set for June, and the parties were admon-

1 Of _ course, it scarcely _ excuses the School Board’s continued 
operation under an invalid plan that they were under an out­
standing court order to do so. Legal requirements change; what 
is consistent, moreover, with a pace of deliberate speed at one time 
should not be confused with the ultimate goal. The school system 
was in violation of outstanding authoritative decisions, Swann v. 
Charlott e-Mecklenburg Board of Education, 431 F.2d 138 141 
(4th Cir. 1970), rev’d. in part, 402 U.S, 1 (April 20, 1971) 
To await the plaintiffs’ initiation of legal action'may have seemed 
a wise strategic choice, but it cannot be equated with the fulfill­
ment of the affirmative duty to desegregate.



3 a

Memorandum Opinion of District Court 
in Bradley Action

ished as to the necessity of implementing a unitary plan 
in the fall of 1970.

The Court will not restate its findings of fact and con­
clusions of law which resulted from the hearings of the 
summer of 1970; these are adequately covered in the re­
ported decision. A few points relevant to the present mo­
tion should be stressed.

Although the School Board had stated, as noted, that 
the free choice system failed to comply with the Constitu­
tion, producing as it did segregated schools, they declined 
to admit during the June hearings that this segregation 
was attributable to the force of law (transcript, hearing 
of June 20, 1970, at 322). Hearings which the Court had 
hoped would be confined to the effectiveness of a plan of 
desegregation consequntly were expanded; the plaintiffs 
were put to the time and expense of demonstrating that 
governmental action lay behind the segregated school at­
tendance prevailing in Richmond. Public and private dis­
crimination were shown to lie behind the residential segre­
gation patterns over which the School Board proposed to 
draw neighborhood school zone lines. Evidence on choice 
of school and public housing sites, restrictive covenants in 
deeds, discrimination in federal mortgage insurance oppor­
tunities, housing segregation ordinances, and continued 
practice of private discrimination was presented, most of 
it without cross-examination or serious attempt at refuta­
tion. All of this proof wms clearly relevant, not only under 
Swann v. Charlotte-MecMenburg Board of Education, 
supra, 431 F.2d at 141, decided just prior to the hearings, 
but also under Brewer v. School Board of City of Norfolk, 
397 F.2d 37, 41 (4th Cir. 1968).

At the same hearings the School Board presented a de­
segregation proposal developed by a team from the Depart-



4a

Memorandum Opinion of District Court 
in Bradley Action

ment of Health, Education and Welfare that was obviously 
unacceptable under law then current. It is hard to see 
how the Board could have contended otherwise, for its 
proposals achieved very little desegregation beyond what 
prevailed under the free choice system, which it had rightly 
declined to defend. These hearings were held more than 
two years after Green v. County School Board of New Kent 
County, 391 U.S. 430 (1968) was handed down. Since that 
time it has been clear that compliance with the Constitution 
is not measured by the formal racial neutrality of a pupil 
assignment plan but rather by its effectiveness in extin­
guishing the public policy of segregation. Freedom of 
choice had left three of seven high schools all black and 
one nearly all white. It left five junior high schools out of 
eleven all black or nearly so and two nearly all white. Of 
forty-four elementary schools, twenty-two were substan­
tially all black and eight almost all white, with several 
others containing a significant but still grossly dispropor­
tionate Negro enrollment. The School Board’s desegrega­
tion proposal—the HEW plan—would have placed small 
minorities of the opposite race in the three formerly black 
high schools and would have left the white high school 
unchanged. Three junior high schools would have remained 
as obviously black facilities and there would have been two 
clearly white; and five almost 100% white and fifteen 
nearly all black elementary schools. Many other elementary 
schools could not strictly have been called all black or all 
white, but departed substantially from the systemwide ratio 
and would be readily identifiable racially.2

2 A full tabulation of the results projected under the HEW 
plan is given in Bradley v. School Board of the City of Richmond, 
supra, 317 F. Supp. at 564-65.



5a

Memorandum Opinion of District Court 
in Bradley Action

Not only did the results of the School Board proposal 
condemn it, but also it failed to pass legal muster because 
those who prepared it were limited in their efforts further 
to desegregate by self-imposed restrictions on available 
techniques. Consideration of residential segregation in 
drawing zone lines was omitted, except that it was decided 
at a late date to pair a few schools; transportation was 
not seriously considered as a desegregation tool, and in 
general, astonishingly, race was not taken into account in 
the formulation of the plan. Since 1966 it has been plain 
that school boards in this circuit may consider race in 
preparing zone plans. Wanner v. County School Board of 
Arlington County, 357 F.2d 452 (4th Cir. 1966). To bar 
this key factor from discussion would render impossible 
almost the first step in the Board’s task of disestablishing 
the dual system. For failure to address itself to the legal 
duty imposed upon it by Green, that of taking affirmative 
action to desegregate, the plan was manifestly invalid. 
Furthermore, Swann held that busing and satellite zoning 
were legitimate integration techniques. Swann v. Charlotte- 
MecHenburg Board of Education, supra, 431 F,2d at 145- 
46. A plan that failed even to experiment with these legiti­
mate tools and yet left such substantial segregation should 
never have been proposed to the Court.

The School Board was directed to submit a further plan 
within a month’s time, and hearings were held on the second 
proposal. At the conclusion of the June proceeding the 
Court had specifically called the parties’ attention to recent 
appellate rulings fixing the extent of their obligation: 
Brewer v. School Board of City of Norfolk, 434 F.2d 408 
(4th Cir.) cert, denied 399 U.S. 929 (1970); Green v. School 
Board of City of Roanoke, 428 F.2d 811 (4th Cir. 1970);



6a

Memorandum Opinion of District Court 
in Bradley Action

United States v. School Board of Franklin City, 428 F.2d 
373 (4th Cir. 1970); Swann v. Charlotte-MecHenburg Board 
of Education, supra, 431 F.2d. Under these precedents the 
School Board’s second plan also failed to establish a uni­
tary school system. Its deficiencies are fully treated in the 
Court’s earlier opinion ;3 the most glaring inadequacy is the 
large proportion of elementary students placed in substan­
tially segregated schools. The Fourth Circuit in Swann re­
jected an elementary plan which left over half the black 
elementary students in 86 %: to 100% black schools and 
about half the whites in 86% to 100% white schools. In the 
face of that ruling the School Board proposed a plan under 
which 8,814 of 14,943 black elementary pupils would be in 
twelve elementary schools over 90% black, and 4,621 of 
10,296 white elementary pupils would attend seven 90% 
or more white schools. At the same time, although testi­
mony in the June hearings by school administrators indi­
cated a consensus that desegregation of such schools could 
not be achieved without transporting students, the School 
Board had in August still taken no steps to acquire the 
necessary equipment. Because by that time it was too late 
to do so by the beginning of the 1970-71 school year, the 
plaintiffs were forced to accept only partial relief in the 
form of the School Board’s inadequate plan on an interim 
basis.

The order approving that plan included a direction to 
the defendants to report to the Court by mid-November 
the specific steps taken to create a unitary system and to 
advise the Court of the earliest date such a system could 
be put into effect.

3 Bradley v. School Board of the City of Richmond, supra, 317 
F. Supp. at 572-76.



7a

Memorandum, Opinion of District Court 
in Bradley Action

Appeals were noted by all parties, but efforts by the 
City Council to secure a stay, pursued at all levels, failed. 
On motion of the School Board, however, briefing was post­
poned by the Court of Appeals pending rulings by the 
Supreme Court on school desegregation cases then before 
that court. The effect of that order was to stay all appellate 
proceedings.

The School Board’s November report stated only that 
three further desegregation plans were in preparation and 
would be submitted on January 15, 1971. These proposals 
were to be based on various assumptions concerning the 
Supreme Court’s disposition of the cases before it.

In the meantime the School Board sought relief from the 
Court’s outstanding order enjoining planned school con­
struction. Depositions of expert witnesses were taken and 
the matter was submitted on briefs. The evidence disclosed 
that the School Board had not seriously reviewed the site 
and capacity decisions which it had made, according to 
earlier testimony, without consideration of their impact on 
efforts to desegregate. Rather it was reportedly deter­
mined that the sites chosen were compatible with various 
conceivable measures of the affirmative duty to desegregate, 
none of which was consistent with current decisions. Bases 
for the conclusions of compatibility, moreover, were not 
presented. The Court declined to lift the construction in­
junction. Bradley v. School Board of City of Richmond, 
----- F. Supp. ------  (E.D. Ya. Jan. 29, 1971).

In December, prior to consideration of the school con­
struction issue, the plaintiffs moved for further relief ef­
fective during the second semester of the 1970-71 school 
year, stating' that the defendants’ report indicated that 
they did not intend further desegregation efforts during



8a

Memorandum Opinion of District Court 
in Bradley' Action

the current year. The promised plans were filed in Janu­
ary.4 The only proposal which promised more than an 
insubstantial advance over the inadequate interim plan, the 
School Board’s Plan 3, required the purchase of trans­
portation facilities which the School Board still would 
only say it would acquire if so ordered. In its November 
report the Board stated firmly its opposition to any mid­
year modifications of the plan.

The Court declined to order further mid-year relief, 
Bradley v. School Board of City of Richmond,----- F. Supp.

- ■ (E.D. Va., Jan. 29, 1971). Because of the nearly 
universal silence at appellate levels, which the Court inter­
preted as reflecting its own hope that authoritative Su­
preme Court rulings concerning the desegregation of 
schools in major metropolitan systems might bear on the 
extent of the defendants’ duty, the Court felt that it would 
not be reasonable to require further steps to desegregate 
during the second semester, and particularly so in view 
of the expense of such steps and the likelihood that they 
could not become effective, on account of the delay in ac­
quiring transportation facilities, until late in that semester. 
The fact remains, nonetheless, that the School Board had 
made effective and immediate further relief nearly im­
possible because it had not taken the specific step of 
seeking to acquire buses. This policy of inaction, until 
faced with a court order, is especially puzzling in view of 
representations later made by counsel for the School Board 
to the effect that at least fifty-six bus units would have 
to be bought, in the Board’s view, in order to operate under

4 They are described in this Court’s prior opinion, Bradley v. 
School Board of City of Richmond, 325 F. Supn 828 (ED  Va 
Apr. 5, 1971).



9a

Memorandum Opinion of District Court 
in Bradley Action

nearly any possible plan during the 1971-72 school year.
Finally, the Court heard further evidence on the plan 

to be implemented during 1971-72.5 The School Board, as 
noted, offered three plans;6 one only, as stated, would 
work to eliminate the substantial segregation that remained 
in Richmond schools. Plan 1 was a strictly contiguous 
geographic zoning system. Plan 2, at the elementary level, 
suffered from the same faults which had condemned the 
school administration’s plan in Swann and the interim plan 
in this case. Plan 3 substantially eliminated the racial 
identifiability of numerous elementary facilities. But, al­
though the Board prepared that plan, they did not urge its 
adoption but instead endorsed plan 2 for the 1971-72 school 
year. At the hearings, counsel for the School Board again 
stated that no further transportaiton units would be ac­
quired unless the Court so ordered specifically, despite 
that the Court had found in August of 1970 that the interim 
plan did not achieve a sufficient level of desegregation and 
could be approved as a temporary expedient only in view 
of the lack of equipment necessary for further desegrega­
tion. The Court directed the adoption of plan 3 for the 
upcoming school year.

As a very general statement of the law, it is true that 
American courts do not reimburse the victorious litigant 
for the full price of his victory, his attorney’s fees and 
expenses. See Goodhart, Costs, 38 Yale L.J. 849 (1929). 
Like most generalizations in law, this rule is subject to

5 The instant motion seeks only fees and expenses for litigation 
to January 29, 19 71, but evidence of subsequent behavior of the 
defendants is relevant in that it tends to show a consistent policy, 
pursued at all stages of the case.

6 Details of the proposals are given in Bradley v. School Board 
of City of Richmond, 325 F. Supp. 828 (E.D. Va., April 5, 1971).



10a

Memorandum Opinion of District Court 
in Bradley Action

several exceptions. The shape of these exceptions provides 
an example of the tensions existent in our system between 
two sources of legal rules: courts and legislatures. For 
the cases show that courts recognize a power in themselves, 
necessary at times in order fully to achieve justice, to direct 
that a losing litigant pay his opponent’s attorney’s fees. 
This power, if it has a statutory source at all, is conferred 
implicitly in the grant of equitable jurisdiction. At the 
same time legislative directives sometimes provide that a 
court may or must award a winning plaintiff reasonable 
counsel fees. Such statutes, not infrequently, form part of 
a more extensive legislative scheme which creates a legal 
right and the appropriate remedy for its violation. It is 
not difficult to see how legal doubts may arise as to the 
court’s power in a certain case to direct the payment of 
fees. Most federal cases involve the vindication of statu­
tory rights. In certain cases the question arises whether 
Congress, in omitting from legislation any provision for 
the award of counsel fees, intended to impose a restriction 
on available relief or intended instead to permit the courts 
to exercise the power resting in them under existing deci­
sions. Conversely, where a fee award is specifically author­
ized, the question arises whether some different factual 
showing from that required under general equitable princi­
ples supports an award.

The plaintiffs do not argue that explicit statutory au­
thorization exists for an award of counsel fees. The case 
is brought pursuant to 42 U.S.C. § 1983 and this Court’s 
general equitable power to enforce constitutional protec­
tions; Congress has not mandated that judgments on such 
cases should as a matter of ordinary course include the 
payment of counsel fees. Williams v. Kimbrough, 415 F.2d 
874 (5th Cir. 1969), cert, denied, 396 U.S. 1061 (1970).



11a

Memorandum Opinion of District Court 
in Bradley Action

The case therefore presents an issue to be resolved on the 
basis of principles governing this Court’s general equitable 
discretion, if discretionary power is available to the Court 
in matters of this nature. In seeking out whatever particu­
lar or special circumstances justify an award of attorney’s 
fees, the Court must be mindful that this case should be 
compared not solely with other cases concerning school 
desegregation, but with all other types of litigation as well.

Sprague v. Ticonic National Bank, 307 U.S. 161 (1939), 
establishes that counsel fees and other litigation expenses, 
not taxable as costs by statute, may be awarded as part of 
a litigant’s relief. “Allowance of such costs in appropriate 
situations is part of the historic equity jurisdiction of the 
federal courts,” id., 164. One circumstance in which an 
award may be an appropriate use of the power of equity 
is that in which an individual litigant by his activities 
creates or preserves a fund in which others than he may 
have an interest.7 Sprague was such a case, in effect, but 
the Court in that decision declined to limit the equity court’s 
power to any particular circumstances. “As in much else 
that pertains to equitable jurisdiction, individualization in 
the exercise of a discretionary power will alone retain 
equity as a living system and save it from sterility . . . .  
In any event such allowances are appropriate only in excep­
tional cases and for dominating reasons of justice,” Id., 167.

Fleischmann Distilling Corp. v. Maier Brewing Co., 386 
U.S. 714 (1967), stresses that the principles allowing 
awards of counsel fees have no application in cases involv-

7 See, e.g., Trustees v. Greenough, 105 U.S. 527 (1881) • Kalian 
v. Rosenstiel, 424 F.2d 161 (3d Cir.), cert, denied, 348 U.S. 950 
(1970); Gibbs v. Blackwelder, 346 F.2d 943 (4th Cir. 3965) - 
Mercantile-Commerce Bank v. Southeast Arkansas Levee 'District 
106 F.2d 966 (8th Cir. 1939). ’



12a

Memorandum Opinion of District Court 
in Bradley Action

ing “statutory causes of action for which the legislature 
had prescribed intricate remedies,” Icl., 719, not intended 
by Congress to include the payment of counsel fees. Fleisch- 
mcmn has, however, been followed by Newman v. Piggie 
Park Enterprises, 390 U.S. 400 (1968), and Mills v. Electric 
Auto-Lite Co., 396 U.S. 375 (1970). In Newman, an action 
under the 1964 Civil Eights Act, 42 U.S.C. § 2000a, et seq., 
an enactment which provides in terms that its remedies are 
exclusive, 42 U.S.C. §2000a-6(b), the Court held that a 
successful plaintiff should be awarded attorney’s fees in 
the ordinary case, under a specific provision of the act. The 
Court noted, however, that such a sanction could have been 
imposed upon a defendant who litigated in bad faith for 
purposes of delay, Newman v. Piggie Park Enterprises, 
supra, 402 n. 4, even had Congress not authorized by statute 
an award of counsel fees.

In Mills the Court directed that a corporation reimburse 
plaintiffs in a derivative suit for their attorney’s fees, 
despite that the statute involved made specific provision 
for attorney’s fees only in sections other than that on which 
liability was predicated in the action. Congress’ failure to 
establish precise bounds of possible relief for violation of 
its prohibitions (indeed the private right of action is im­
plied) was thought to reflect an intention not to exclude 
the possibility of an award of attorney’s fees under con­
ventional principles. Mills v. Electric Auto-Lite Co., supra, 
391. The Court directed an interim award on a variation of 
the fund theory.

Lower courts have also construed federal enactments, 
old and recent, not to bar an award of attorney’s fees when 
equity would require it, in the absence of indicia of con­
gressional purpose to render such relief unavailable. See



13a

Memorandum Opinion of District Court 
in Bradley Action

Lee v. Southern Home Sites Corp., 429 F.2d 290 (5th Cir. 
1970) (42 U.S.C. § 1982); Kalian v. Rosentiel, supra, (Se­
curities Exchange Act § 10b, Rule 10b-5); Local 149, Inter­
national Union, Automobile, Aircraft and Agricultural 
Implement Manufacturers of America v. American Brake 
Shoe Co., 298 F.2d 212 (4th Cir.), cert, denied, 369 U.S. 873 
(1962) (Labor Management Relations Act §301).

Section 1983 and general federal equitable power to 
protect constitutional rights are not restricted by any 
congressional language indicating an intention to preclude 
an award of counsel fees, either by express exclusion or 
the creation of an intricate remedial scheme. The statute 
creates liability

“in an action at law, suit in equity, or other proper 
proceeding for redress.” 42 U.S.C. § 1983.

In its reference to suits in equity the statute must be 
taken to authorize relief, such as an award of counsel fees, 
as might normally be available in such suits. Case law 
prior to Fleischmann in school desegregation cases, dis­
cussed below, recognizes the power of a federal equity 
court trying a desegregation suit to award counsel fees. 
In the light of the decisions subsequent to Fleischmann, 
such construction of § 1983 is not subject to serious ques­
tion.

The issue, then, is whether this case is a proper one for 
a discretionary award.

Many of the cases directing or approving an award of 
attorney’s fees turn upon the fund theory: the concept that, 
first, a litigant s counsel fees have been expended in such 
a manner as to benefit a number of other persons, not 
participating in the suit, and that, second, means are avail-



14a

Memorandum Opinion of District Court 
m Bradley Action

able whereby such outside beneficiaries can be made to 
bear something like a pro rata share of expenses by taking 
the fee from a defendant (a fiduciary, often) who holds or 
controls something in which the beneficiaries have an in­
terest. School desegregation cases, or any suits against 
governmental bodies, do not fit this fund model without 
considerable cutting and trimming. This is a class suit to 
be sure, with class relief, but to say that the plaintiff class 
will actually in effect pay their attorneys if the School 
Board is made to pay counsel fees entails a number of 
unproved assumptions about the extent to which pupils 
pay for their free public schooling.

Nonetheless, the fund theory does not exhaust the 
grounds on which an equity decree to pay counsel fees may 
be based. Other cases exist in which “overriding considera­
tions indicate the need for such recovery.” Mills v. Electric 
Auto-Lite Co., supra, 391-92; see Note, 77 Harvard L.Rev. 
1135 (1964). Such considerations in general are present 
when a party has used the litigation process for ends other 
than the legitimate resolution of actual legal disputes.

In Guardian Trust Co. v. Kansas City Southern Railway 
Co., 28 F.2d 233 (8th Cir. 1928), rev’d on other grounds, 
281 U.S. 1 (1930), the Eighth Circuit reviewed exhaustively 
the circumstances in which an equity court might allow 
costs “as between solicitor and client” despite the lack of 
statutory authority. That court concluded that such a fee 
award was proper in a number of instances, including those 
in which a fiduciary has defended his trust, or a party has 
defended his title to certain property against baseless and 
vexatious litigation, or a defendant, charged with gross 
misconduct, has prevailed on the merits.

In Rude v. Buchalter, 286 U.S. 451 (1932), the Supreme 
Court held unwarranted an award of attorney’s fees against



16a

Memorandum Opinion of District Court 
in Bradley Action

which was required, as a bargaining agent, to protect 
their interests. The vindication of their rights neces­
sarily involves greater expense in the employing of 
counsel to institute and carry on extensive and im­
portant litigation than the amount involved to the 
individual plaintiffs would justify their paying. In 
such situations, we think that the allowance of coun­
sel fees in a reasonable amount as a part of the re­
coverable costs of the case is a matter resting in the 
sound discretion of the trial judge. Id., 481.

Although the indication that such costs are proper if 
“essential to the doing of justice” in a sense begs the ques­
tion, the factors mentioned give some guidance. The suit 
obviously benefited an entire class of Negro locomotive 
firemen. The defendant, equipped with legislatively-con­
ferred bargaining powers, owed them something akin to a 
fiduciary’s concern and had violated that duty. The re­
sources of the parties were disproportionate. The cost of 
litigation was disproportionate to the monetary benefit to 
any one plaintiff. Last, the legal issues were relatively 
settled before suit. Analogous factors are present in the 
instant litigation.

In Taussig v. Wellington Fund, Inc., 187 F. Supp. 179 
(D. Del. 1960) aff’d. 313 F.2d 472 (3d Cir. 1963), cert, 
denied, 374 U.S. 806 (1963), a stockholders derivative suit 
charging unfair competition, the shareholder plaintiffs 
were awarded attorneys’ fees not out of the treasury of 
their corporation, which their lawsuit presumably benefited, 
but against those guilty of unfair practices. Such an 
equitable damage award, the court said, must be premised 
on a finding that “the wrongdoers’ actions were unconscion-



16a

Memorandum Opinion of District Court 
in Bradley Action

which was required, as a bargaining agent, to protect 
their interests. The vindication of their rights neces­
sarily involves greater expense in the employing of 
counsel to institute and carry on extensive and im­
portant litigation than the amount involved to the 
individual plaintiffs would justify their paying. In 
such situations, we think that the allowance of coun­
sel fees in a reasonable amount as a part of the re­
coverable costs of the case is a matter resting in the 
sound discretion of the trial judge. Id., 481.

Although the indication that such costs are proper if 
“essential to the doing of justice” in a sense begs the ques­
tion, the factors mentioned give some guidance. The suit 
obviously benefited an entire class of Negro locomotive 
firemen. The defendant, equipped with legislatively-con­
ferred bargaining powers, owed them something akin to a 
fiduciary’s concern and had violated that duty. The re­
sources of the parties were disproportionate. The cost of 
litigation was disproportionate to the monetary benefit to 
any one plaintiff. Last, the legal issues were relatively 
settled before suit. Analogous factors are present in the 
instant litigation.

In Taussig v. Wellington Fund, Inc., 187 F. Supp. 179 
(D. Del. 1960) aff’d. 313 F.2d 472 (3d Cir. 1963), cert, 
denied, 374 U.S. 806 (1963), a stockholders derivative suit 
charging unfair competition, the shareholder plaintiffs 
were awarded attorneys’ fees not out of the treasury of 
their corporation, which their lawsuit presumably benefited, 
but against those guilty of unfair practices. Such an 
equitable damage award, the court said, must be premised 
on a finding that “the wrongdoers’ actions were unconscion-



17a

Memorandum Opinion of District Court 
in Bradley Action

able, fraudulent, willful, in bad faith, vexatious, or excep­
tional,” Id., 187 F. Supp. at 222 (footnotes omitted).

Our own Circuit ruled that it was within the power of a 
court of equity to award attorneys’ fees in a suit under 
§ 301 of the Taft-Hartley Act to enforce an arbitrator’s 
award if it were shown that the employer’s refusal to com­
ply with the award was arbitrary and unjustified. The de­
cision was based on precedents establishing a court’s 
equitable power and on the judicial duty to develop a body 
of federal law under § 301. In the particular case the litiga­
tion was justified, and a fee award improper, because ques­
tions of some legal substance remained. Local 149, Inter­
national Union, United Automobile, Aircraft and Agricul­
tural Implement Workers of America v. American Brake 
Shoe Co., supra.

In Vaughan v. Atkinson, 369 U.S. 527 (1962), attorneys’ 
fees as an item of damages or an admiralty case were held 
due when the owner’s conduct toward an ill seaman was 
consistently stubborn:

In the instant case respondents were callous in their 
attitude, making no investigation of libellant’s claim 
and by their silence neither admitting nor denying it. 
As a result of that recalcitrance, libellant was forced 
to hire a lawyer and go to court to get what was plainly 
owed him under laws that are centuries old. The de­
fault was willful and persistent. Id., 530-31.

A district court in another case declined to exercise its 
acknowledged equity power to award attorneys’ fees in a 
suit against a labor union, finding no “fund” had been cre­
ated and no compelling circumstances otherwise existed. 
The court commented, however, that:



18a

Memorandum Opinion of District Court 
in Bradley Action

[W]ith the possible exception of civil rights litigation, 
see Bell v. School Bd., 321 F.2d 500 (4th Cir. 1963), 77 
Harv. L. Rev. 1135 (1964), no area is more susceptible 
to the salutary effects of the exercise of the chancellor’s 
power to award counsel fees without the presence of a 
fund than litigation involving a member and his union. 
Primarily, this litigation seeks solely equitable relief 
and traditionally puts an impecunious group of mem­
bers against a solvent union with little expectation of a 
substantial monetary award from which to pay a coun­
sel fee, even a contingent one. This recognition has 
prompted several courts to allow counsel fees to suc­
cessful union members who through litigation have 
corrected union abuse even though they have not estab­
lished a fund or conferred a pecuniary benefit upon 
the commonwealth of the union. Cutler v. American 
Federation of Musicians, 231 F. Supp. 845 (S.D. N.Y. 
1964), aff’d. 366 F.2d 779 (2d Cir. 1966), cert, denied, 
386 U.S. 993 (1967).

A class suit to reapportion a local government unit, Dyer 
v. Love, 307 F. Supp, 974 (N.D. Miss. 1969), was the con­
text for an award of counsel fees in a civil rights case. 
When the defendants, members of a board of supervisors, 
declined to reapportion their constituents, despite gross 
population variations between districts, and instead forced 
citizens to initiate “vigorously opposed” litigation, the 
court found this “unreasonable and obstinate” conduct to 
be fair basis for a fee allowance, even though there had been 
no Supreme Court holding during most of the suit’s pen­
dency explicitly defining the defendants’ duty, Id., 987. The 
direction of the developing law, the court said, should have



19a

Memorandum Opinion of District Court 
in Bradley Action

been clear. Additionally, the court held that the absence 
of any fee agreement between plaintiffs and their lawyer 
constituted no bar to an award, because it was within the 
court’s power to order payment to the attorneys themselves.

In another case out of the same court, an allowance of 
counsel fees was denied when the losing defendants, public 
educational administrators, were found not to have pre­
sented their defenses “in bad faith or for oppressive rea­
sons,” Stacy v. Williams, 50 F.R.D. 52 (N.D. Miss. 1970).

In Lee v. Southern Home Sites Corp., supra, the Fifth 
Circuit authorized attorneys’ fee awards in a suit under 42 
U.S.C. § 1982 contesting racial discrimination in housing 
sales, relying on the directive in Jones v. Alfred II. Mayer 
Co., 392 U.S. 409 (1968), to fashion appropriate and effec­
tive equitable remedies for § 1982 violations. The discre­
tionary power clearly exists, the court said, and its exercise 
is especially appropriate in civil rights cases, where often 
discrimination with wide public impact can be terminated 
only by private lawsuit and problems of securing legal 
representation have been recognized. However, because the 
district court’s exercise of its discretion could only be re­
viewed on the basis of factfindings on the relevant issues, 
the case was remanded for further proceedings.

Numerous other cases support the power of a court of 
equity to allow counsel fees when a litigant’s conduct has 
been vexatious or groundless, or he has been guilty of over­
reaching conduct or bad faith. See Siegel v. William E. 
Bookhultz & Sons, 419 F.2d 720 (D.C. Cir. 1969); Smith v. 
Allegheny Corp., 394 F.2d 381 (2d Cir.) cert, denied, 393 
U.S. 939 (1968); McClure v. Borne Chemical Co., 292 F.2d 
824 (3d Cir.) cert, denied, 368 U.S. 939 (1961); In re Carico, 
308 F. Supp. 815 (E.D. Va. 1970); Stevens v. Abbott, Proc­
tor & Paine, 288 F. Supp. 836 (E.D. Va. 1968).



20a

Memorandum Opinion of District Court 
in Bradley Action

School desegregation decisions illustrate the specific ap­
plication of a court’s equitable discretion to allow counsel 
fees to plaintiffs when the evidence shows obstinate non- 
compliance with the law or imposition by defendants on the 
judicial process for purposes of harassment or delay in 
affording rights clearly owing. See, e.g. Nesbit v. States­
ville City Board of Education, 418 F.2d 1040 (4th Cir. 
1969); Williams v. Kimbrough, supra; Cato v. Parham, 403 
F.2d 12 (8th Cir. 1968); Rolfe v. County Board of Educa­
tion of Lincoln County, 391 F.2d 77 (6th Cir. 1968); Hill v. 
Franklin County Board of Education, 390 F.2d 583 (6th 
Cir. 1968); Clark v. Board of Education of Little Rock 
School District, 369 F.2d 661 (6th Cir. 1966); Griffin v. 
County School Board of Prince Edward County, 363 F.2d 
206 (4th Cir. 1966); Kemp v. Beasley, 352 F.2d 14 (8th Cir. 
1965); Bradley v. School Board of City of Richmond, supra, 
345 F .2d; Rogers v. Patti, 345 F.2d 117 (8th Cir.) rev’d on 
other grounds, 382 IT.S. 198 (1965); Brown v. County School 
Board of Frederick County, 327 F.2d 655 (4th Cir. 1964); 
Bell v. County School Board of Powhatan County, 321 F.2d 
494 (4th Cir. 1963); Pettaway v. County School Board of 
Surry County, 230 F. Supp. 480 (E.D. Va.) rev’d on other 
grounds, 339 F.2d 486 (4th Cir. 1964). See also, Felder v. 
Harnett County Board of Education, 409 F.2d 1070 (4th 
Cir. 1969), concerning Appellate Rule 38 and “frivolous” 
appeals.

A prior appellate opinion in this case states that district 
courts should properly exercise their power to allow coun­
sel fees only “when it is found that the bringing of the 
action should have been unnecessary and was compelled 
by the school board’s unreasonable, obstinate obduracy.” 
Bradley v. School Board of City of Richmond, supra, 345



21a

Memorandum Opinion of District Court 
in Bradley Action

F .2d at 321. The Court of Appeals recognized that appel­
late review of such orders, however, necessarily had a 
narrow scope and failed to disturb a nominal fee award.

In determining whether this particular lawsuit was un­
necessarily precipitated by the School Board’s obduracy, 
the Court cannot “turn the clock back,” Brown v. Board of 
Education of Topeka, 347 U.S. 483, 492 (1954), to 1965. 
The School Board’s conduct must be considered with ref­
erence to the state of the law in 1970. The Court has al­
ready reviewed the course of the litigation. It should be 
apparent that since 1968 at the latest the School Board 
was clearly in default of its constitutional duty. When 
hailed into court, moreover, it first admitted its noncom­
pliance, then put into contest the responsibility for per­
sisting segregation. When liability finally was established, 
it submitted and insisted on litigating the merits of so- 
called desegregation plans which could not meet announced 
judicial guidelines. At each stage of the proceedings the 
School Board’s position has been that, given the choice 
between desegregating the schools and committing a con­
tempt of court, they would choose the first, but that in any 
event desegregation would only come about by court order.

Other courts have catalogued the array of tactics used 
by school authorities in evading their constitutional re­
sponsibilities, Swann v. Charlotte-Mecklenburg Board of 
Education, supra, 402 U.S. at 13 (April 20, 1971) (slip 
opinion at 9); Jones v. Alfred H. Mayer Co., supra, 448 
n.5 (1968) (Douglas, J., concurring); Wright v. Council of 
the City of Emporia, No. 14,552, 442 F.2d 570, 593 (4th 
Cir. 1971) (slip opinion at 13-14) (Sobeloff, J., dissent­
ing). The freedom of choice plan under which Richmond 
was operating clearly was one such. When this Court



22a

Memorandum Opinion of District Court 
in Bradley Action

filed its opinion of August 17, 1970, confirming the legal 
invalidity of that plan, the HEW proposal, and the in­
terim plan, it was not propounding new legal doctrine. 
Because the relevant legal standards were clear it is not 
unfair to say that the litigation was unnecessary. It 
achieved, however, substantial delay in the full desegre­
gation of city schools. Courts are not meant to be the 
conventional means by which persons’ rights are afforded. 
The law favors settlement and voluntary compliance with 
the law. When parties must institute litigation to secure 
what is plainly due them, it is not unfair to characterize a 
defendant’s conduct as obstinate and unreasonable and as 
a perversion of the purpose of adjudication, which is to 
settle actual disputes.

It is not argument to the contrary that political realities 
may compel school administrators to insist on integration 
by judicial decree and that this is the ordinary, usual 
means of achieving compliance with constitutional desegre­
gation standards. If such considerations lead parties to 
mount defenses without hope of success, the judicial pro­
cess is nonetheless imposed upon and the plaintiffs are 
callously put to unreasonable and unnecessary expense.

As long ago as 1966 a court of appeals in another circuit 
uttered a strong suggestion that evasion and obstruction 
of desegregation should be discouraged by compelling state 
officials to bear the cost of relief:

The Board is under an immediate and absolute consti­
tutional duty to afford non-racially operated school 
programs, and it has been given judicial and executive 
guidelines for the performance of that duty. If well- 
known constitutional guarantees continue to be ignored 
or abridged and individual pupils are forced to resort



23a

Memorandum Opinion of District Court 
in Bradley Action

to the courts for protection, the time is fast approach­
ing when the additional sanction of substantial attor­
neys’ fees should be seriously considered by the trial 
courts. Almost solely because of the obstinate, adam­
ant, and open resistance to the law, the educational 
system of Little Rock has been embroiled in a decade 
of costly litigation, while constitutionally guaranteed 
and protected rights were collectively and individually 
violated. The time is coming to an end when recalci­
trant state officials can force unwilling victims of il­
legal discrimination to bear the constant and crushing 
expense of enforcing their constitutionally accorded 
rights. Clark v. Board of Education of Little Bock 
School District, supra, 671.

That time has now expired. See also, Cato v. Parham, 
supra. Our Court of Appeals, too, has indicated a willing­
ness to place litigation costs on defendants in recent cases; 
in Nesbit v. Statesville City Board of Education, supra, 
they took the unusual step of directing the district court 
to exercise its discretion in the matter in favor of the 
plaintiffs. This was also done six years before in Bell v. 
County School Board of Powhatan County, supra, when 
aggravated misconduct was shown; in Nesbit, by contrast, 
the defendants seem to have been guilty of delay alone.

Not only has the continued litigation herein been precip­
itated by the defendants’ reluctance to accept clear legal 
direction, but other compelling circumstances make an 
equitable allowance necessary. This has been a long and 
complex set of hearings. Plaintiffs’ counsel have demon­
strated admirable expertise, discussed below, but from the 
beginning the resources of opposing parties have been dis-



24a

Memorandum Opinion of District Court 
in Bradley Action

proportionate. Ranged against the plaintiffs have been the 
legal staff of the City Attorney’s office and retained counsel 
highly experienced in trial work. Additionally the School 
Board possessed the assistance of its entire administrative 
staff for investigation and analysis of information, prep­
aration of evidence, and expert testimony of educators. 
Few litigants—even the wealthiest—come into court with 
resources at once so formidable and so suited to the liti­
gation task at hand. Sums paid outside counsel alone far 
exceed the plaintiffs’ estimate of the cost of their time and 
effort.

Moreover, this sort of case is an enterprise on which any 
private individual should shudder to embark. No substan­
tial damage award is ever likely, and yet the costs of prov­
ing a case for injunctive relief are high. To secure coun­
sel willing to undertake the job of trial, including the sub­
stantial duty of representing an entire class (something 
which must give pause to all attorneys, sensitive as is the 
profession to its ethical responsibilities) necessarily means 
that someone plaintiff or lawyer—must make a great sac­
rifice unless equity intervenes. Coupled with the cost of 
proof is the likely personal and professional cost to coun­
sel who work to vindicate minority rights in an atmosphere 
of resistance or outright hostility to their efforts. See 
NAACP v. Button, 371 U.S. 415, 435-36 (1963); Sanders v. 
Russell, 401 F. 2d 241 (5th Cir. 1968).

Still further, the Court must note that the defendants’ 
delay and inaction constituted more than a cause for need­
less litigation. It inspired in a community conditioned to 
segregated schools a false hope that constitutional inter­
pretations as enunciated by the courts pursuant to their 
responsibilities, as intended by the Constitution, could in



25a

Memorandum Opinion of District Court 
in Bradley Action

some manner, other than as contemplated by that very 
document, be influenced by the sentiment of a community.

The foregoing in no manner is intended to express a lack 
of personal compassion for the difficult and arduous task 
imposed upon the members of the defendant school board. 
Nevtherless they, and indeed the other defendants as well, 
had a public trust to encourage what may well be consid­
ered one of the most precious resources of a community; 
an attitude of prompt adherence to the law, regardless of 
the manifested erroneous view that mere opposition to 
constitutional requirements would in some manner result 
in a change in those requirements.

Power over public education carries with it the duty to 
provide that education in a constitutional manner, a duty 
in which the defendants failed.

These general factors were present, although in lesser 
magnitude, in the Rolax case in 1951, in which the Fourth 
Circuit said that an award of counsel fees would be fully 
justified.

Passing the question of the appropriateness of allowing 
fees on the basis of traditional equitable standards, the 
Court is persuaded that in 1970 and 1971 the character of 
school desegregation litigation has become such that full 
and appropriate relief must include the award of expenses 
of litigation. This is an alternative ground for today’s 
ruling.

The circumstances which persuaded Congress to author­
ize the payment of attorney’s fees by statute under certain 
sections of the 1964 Civil Rights Act, see 42 U.S.C. §§ 2000a- 
3(b), 2000e-5(k), very often are present in even greater 
degree in school desegregation litigation. In Newman v.



26a

Memorandum Opinion of District Court- 
in Bradley Action

Biggie Park Enterprises, Inc., supra, the Supreme Court 
elucidated the logic underlying the 1964 legislation:

When the Civil Rights Act of 1964 was passed, it was 
evident that enforcement would prove difficult and 
that the Nation would have to rely in part upon pri­
vate litigation as a means of securing broad compli­
ance with the law. A Title II suit is thus private in 
form only. When a plaintiff brings an action under 
that Title, he cannot recover damages. If he obtains 
an injunction, he does so not for himself alone but also 
as a “private attorney general,” vindicating a policy 
that Congress considered of the highest priority. If 
successful plaintiffs were routinely forced to bear their 
own attorneys’ fees, few aggrieved parties would be 
in a position to advance the public interest by invoking 
the injunctive powers of the federal courts. Id., 401-02.

Newman was followed in Miller v. Amusement Enterprises, 
Inc., 426 F. 2d 534 (5th Cir. 1970), in which the court rec­
ognized that in cases where the plaintiffs had undertaken 
no obligation to pay counsel, congressional purposes would 
best be served by directing payment to the lawyers.

The rationale of Newman, moreover, has equal force in 
employment discrimination cases, even where plaintiffs are 
only partially successful, where their lawsuit serves to 
bring an employer into compliance with the Act. Lea v. 
Cone Mills Corp., No. 14,068, 438 F. 2d 80 (4th Cir. 
Jan. 29, 1971) ; Parham v. Southwestern Bell Telephone 
Co., 433 F. 2d 421 (5th Cir. 1970).

School desegregation cases almost universally proceed 
as class actions. Use of this unconventional form, of action



27a

Memorandum Opinion of District Court 
in Bradley Action

converts a private lawsuit into something like an adminis­
trative hearing on compliance of a crucial public facility 
with legal rules defining, in part, its mission. Such result 
has come about as the law developed so that it protects 
as a matter of individual right not just admission into 
formerly white schools of black applicants, but attendance 
in a nondiscriminatory school system. Green v. County 
School Board of New Kent County, supra; Bradley v. 
School Board of City of Richmond, 317 F. 2d 429 (4th Cir. 
1963).

Manifestly, too, not only are the rights of many asserted 
in such suits, but also it has become a matter of vital 
governmental policy not just that such rig’hts be protected, 
but that they be immediately vindicated in fact. See 42 
IJ.S.C. § 2000e, et seq. Partly this national goal has been 
pursued by administrative proceedings, but a large part 
of the job has fallen to the courts, and for them it has 
been a task of unaccustomed extent and difficulty. “Nothing 
in our national experience prior to 1955 prepared anyone 
for dealing with changes and adjustments of the magni­
tude and complexity encountered since then.” Swann v. 
Charlotte-MecMenburg Board of Education, supra, 402 
U.S. 1, 13.

The private lawyer in such a case most accurately may 
be described as “a private attorney general.” Whatever 
the conduct of defendants may have been, it is intolerably 
anomalous that counsel entrusted with guarantying the ef­
fectuation of a public policy of nondiscrimination 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 constitu­
tional guaranties, when to do so profoundly alters a key



28a

Memorandum Opinion of District Court 
in Bradley Action

social institution and causes reverberations of untraeeable 
extent throughout the community, is not a private matter. 
Indeed it may be argued that it is a task which might 
better be undertaken in some framework other than the 
adversary system. Courts adapt, however; but in doing 
so they must recognize the new legal vehicles they create 
and ensure that justice is accomplished fully as effectively 
as under the old ones. The tools are available. Under the 
Civil Eights Act courts are required fully to remedy an 
established wrong, Griffin v. County School Board of Prince 
Edward County, 377 U.S. 218, 232-34 (1964), and the pay­
ment of fees and expenses in class actions like this one 
is a necessary ingredient of such a remedy.

This rule is consistent with the Court’s power and serves 
an evident public policy to encourage the just and efficient 
disposition of cases concerning school desegregation. Cf. 
42 U.S.C. § 2000c-6. It serves no person’s interest to de­
cide these cases on the basis of a haphazard presentation 
of evidence, hampered by inadequate manpower for re­
search into the bases of liability and the elements of relief. 
Where the interests of so many are at stake, justice de­
mands that the plaintiffs’ attorneys be equipped to inform 
the court of the consequences of available choices; this 
can only be done if the availability of funds for repre­
sentation is not left to chance. In this unprecedented form 
of public proceeding, exercise of equity power requires the 
Court to allow counsel’s fees and expenses, in a field in 
which Congress has authorized broad equitable remedies 
“unless special circumstances would render such an award 
unjust,” Newman v. Biggie Park Enterprises, Inc., supra, 
402. No such circumstances are present here.



Memorandum Opinion of District Court 
in Bradley Action

The amount of the allowance is not difficult to establish. 
Counsel have agreed to submit the matter of costs, fees 
and expenses to the Court on documentary evidence. The 
period of time to which this opinion relates runs from the 
March, 1970, motion for further relief until January 29, 
1971. Findings of fact as to defendants’ actions after 
that date have been made; these tend to establish their 
continuing pattern of inaction and resistance.

Trial counsel for the plaintiffs demonstrated throughout 
the litigation a grasp of the material facts and a com­
mand of the relevant law equaled by very few lawyers 
who have appeared before this Court. Needless to say 
their understanding of the field enabled them to be of 
substantial assistance to the Court, which is their duty. 
Local counsel did not examine witnesses, but assisted in 
pretrial preparation and also at hearings, as required by 
local rules. Some of the working hours included in coun­
sel’s estimates of time spent, moreover, include travel 
times. These are properly listed for two reasons. First, 
counsel can and do work while traveling. Second, other 
complex cases often require parties to enlist the aid of 
out-of-town counsel, for whose travel time they pay.

In conformity with practice in his home bar of Memphis, 
Tennessee, a lawyer for the plaintiffs secured three af­
fidavits from disinterested brother counsel stating their 
estimate of the fair value of legal services rendered by 
plaintiffs’ counsel. The affidavits state facts showing a 
current familiarity with prevailing fee rates and with, in 
two cases, the full case file. Considering the abilities of 
counsel, the time required, and the results achieved, these 
lawyers placed a value on the services very close to the 
estimates of the plaintiffs.



30a

Memorandum Opinion of District Court 
in Bradley Action

The Virginia Supreme Court of Appeals long ago set 
forth, the factors relevant to the value of an attorney’s 
services:

[circumstances to be considered . . . are the amount 
and character of the services rendered, the respon­
sibility imposed; the labor, time and trouble involved; 
the character and importance of the matter in which 
the services are rendered; the amount of money or 
the value of the property to be affected; the profes­
sional skill and experience called for; the character 
and standing in their profession of the attorneys; and 
whether or not the fee is absolute of contingent . . 
The result secured by the services of the attorney 
may likewise be considered; but merely as bearing 
upon the consideration of the efficiency with which 
they were rendered, and in that way, upon their value 
on a quantum meruit, not from the standpoint of 
their value to the client. Campbell County v. Howard, 
133 Va. 19, 112 S.E. 2d 876, 885 (1922).

In this case the marshalling of evidence on liability and 
especially on remedy were complex tasks. The responsi­
bility was probably as great as ever falls upon a private 
lawyer. Time spent was considerable; the Court accepts 
the estimates of time and expenses dated January 6, 1970, 
as modified in a memorandum submitted on March 15, 
1970. The subject of the litigation was of the utmost im­
portance. The Court has already referred to the lawyers’ 
performance, which they undertook without assurance of 
reasonable compensation. Substantial results, too, were 
secured by their efforts.



31a

Memorandum Opinion of District Court 
in Bradley Action

On the basis of these factors, pins the equitable con­
siderations compelling an allowance, the Court has deter­
mined that a reasonable attorney’s fee would be $43,355.00.8

Expense incurred, including taxable costs, have also been 
estimated by the plaintiffs. As in the case of attorney’s 
fees, these cover the period from March of 1970 through 
January 29, 1971, and relief is not requested with refer­
ence to matters raised by the motion for joinder of further 
parties filed by the School Board. Costs and expenses as 
to those matters are therefore not under consideration.

Because the Court has decided that plaintiffs’ counsel 
are due an allowance of the actual expenses of the litiga­
tion, it is not necessary to determine whether certain items 
of expense would in the usual case be taxable as costs 
under 28 U.S.C. § 1920; see 6 Moore’s Federal Practice 
H 54.70, et seq. (2d ed. 1966).

Many of the expenses incurred by plaintiffs’ counsel are 
attributable to their traveling from New York and Mem­
phis for preparation and trial, but, as the Court already 
said, the complexity of cases of this sort often, as here, 
justifies the use of counsel from outside the local bar. 
The difficulty of retaining local trial counsel must be es­
pecially great in litigation over minorities’ civil rights; 
the unpopularity of the causes and the likelihood of small 
reward discourage many lawyers even from mastering the 
field of law, much less accepting the cases. Expenses for 
travel, hotel accommodations and restaurant meals are 
fairly allowable. The Court takes notice of the fact that

8 The Court has reduced the requested allowance pursuant to the 
supplemental memorandum filed by plaintiffs under date of Mar. 15, 
1971, and in addition has deducted the item of $990 having to do 
with City Council’s requested stay of Court’s order of August 1970.



32a

Memorandum Opinion of District Court 
in Bradley Action

the absence of an attorney from the area of his office 
usually results in financial hardship in relation to the 
balance of his practice, and there ought not to be super­
imposed thereon additional living expenses.

Fees for expert witnesse’ testimony likewise will be al­
lowed as an expense of suit. It is difficult to imagine a 
more necessary item of proof (and source of assistance to 
the Court) than the considered opinion of an educational 
expert.

Investigation assistance and office supplies likewise are 
obviously proper; one must contrast the rather minimal 
expenses of the plaintiffs under this heading with the re­
sources used by the defendants.

Transcript costs, including those for depositions which 
were taken with the Court’s encouragement, and miscel­
laneous court fees are allowable.

The Court will not assess against the School Board, 
however, expenses occasioned by the stay applications un­
successfully filed by the Richmond City Council. These 
may be considered on a separate application.

The Court computes the total allowable expenses to be 
$13,064.65. The total award, including counsel fees, comes 
to $56,419.65.9 This is a large amount, but it falls well 
below the value of efforts made in defending the suit. 
Outside counsel for the School Board to date have sub­
mitted bills well in excess of the amounts awarded. [Por­
tions of the submitted bills cover periods with which we 
are not here concerned.] In addition, as noted above, the 
defendants made use of the regular legal staff of the City

9 Expenses incurred in reference to City Council’s request for 
stay of August 1970 order are not included herein, nor are expenses 
allocated to filing of amended complaint.



33a

Memorandum Opinion of District Court 
in Bradley Action

Attorney and the School Board’s administrative staff. For 
purposes of comparison, in a recent antitrust case tried 
by one Richmond attorney and two lawyers from outside 
the local bar, this Court awarded $117,000 in counsel fees. 
The amount in this case is not excessive.

For the reasons stated, an order shall enter this day 
decreeing' the payment of the sum mentioned to counsel 
for the plaintiffs.

R obert R . M e r h ig e  
United States District Judge

Date : May 26, 1971



34a

Opinion o f United States Court o f Appeals 
in  B ra d le y  Action

1 st t h e

UNITED STATES COURT OF APPEALS 
F or t h e  F o u r t h  C ir c u it  

No. 71-1774

Carolyn  B radley , e tc ., et ad., 

—versus—
Appellees,

T h e  S chool  B oard of 
t h e  C it y  of R ic h m o n d , V ir g in ia , et al.,

Appellant.

Section III of the opinion, dealing with the application of 
Section 718 to the proceedings, heard October 2, 1972,
Before H a y n sw o r th , Chief Judge, W in t e r , Cra v en , B u s ­
sell  and F ie l d , Circuit Judges (Butzner, Circuit Judge, 
being disqualified) sitting en banc;
Other parts of the cause heard March 7, 1972,
Before W in t e r , Craven  and R u s s e l l , Circuit Judges.

Decided November 29, 1972.

R u sse l l , Circuit Judge:

This appeal challenges an award of attorney’s fees made 
to counsel for plaintiffs in the school desegregation suit 
filed against the School Board of the City of Richmond, 
Virginia. Though the action has been pending for a num-



35a

Opinion of United States Court of Appeals 
in Bradley Action

ber of years,1 the award covers services only for a period 
from March, 1970, to January 29, 1971, It is predicated 
on two grounds: (1) that the actions taken and defenses 
entered by the defendant School Board during such period 
represented unreasonable and obdurate refusal to imple­
ment clear constitutional standards; and (2) apart from 
any consideration of obduracy on the part of the defen­
dant School Board since 1970, it is appropriate in school 
desegregation cases, for policy reasons, to allow counsel 
for the private parties attorneys’ fees as an item of costs. 
The defendant School Board contends that neither ground 
sustains the award. We agree.

We shall consider the two grounds separately.

I .

This Court has repeatedly declared that only in “the 
extraordinary case” where it has been “ ‘found that the 
bringing of the action should have been unnecessary and 
was compelled by the school board’s unreasonable, obdurate 
obstinacy’ or persistent defiance of law”, would a court, 
in the exercise of its equitable powers, award attorney’s 
fees in school desegregation cases. Brewer v. School Board 
of City of Norfolk, Virginia (4th Cir. 1972), 456 F.2d 943, 
949. Whether the conduct of the School Board constitutes 
“obdurate obstinacy” in a particular case is ordinarily 
committed to the discretion of the District Judge, to be 
disturbed only “in the face of compelling circumstances”, 
Bradley v. School Board of City of Richmond, Virginia 
(4th Cir. 1965), 345 F.2d 310, 321. A finding of obduracy

1 See Note 1 in majority opinion of Bradley v. The School Board 
of the City of Richmond, Virginia, decided June 5, 1972, for history 
of this litigation.



36a

Opinion of United States Court of Appeals 
in Bradley Action

by the District Court, like any other finding of fact made 
by it, should be reversed, however, if “the reviewing Court 
on the entire evidence is left with the definite and firm 
conviction that a mistake has been committed.” United 
States v. Gypsum Co. (1948), 333 U. S. 364, 395, 68 S. Ct. 
525, 92 L. Ed. 746; Wright-Miller, Federal Practice and 
Procedure, Yol. 9, p. 731 (1971). We are convinced that 
the finding by the District Court of “obdurate obstinacy” 
on the part of the defendant School Board in this case was 
error.

Fundamental to the District Court’s finding of obduracy 
is its conclusion that the litigation, during the period for 
which an allowance was made, was unnecessary and only 
required because of the unreasonable refusal of the de­
fendant School Board to accept in good faith the clear 
standards already established for developing a plan for a 
non-racial unitary school system. This follows from the 
pointed statements of the Court in the opinion under 
review that, “Because the relevant legal standards were 
clear it is not unfair to say that the litigation (in this 
period) was unnecessary”, and that, “When parties must 
institute litigation to secure what is plainly due them, it 
is not unfair to characterize a defendant’s conduct as ob­
stinate and unreasonable and as a perversion of the pur­
pose of adjudication, which is to settle actual disputes.” 2 
At another point in its opinion, the Court uses similar 
language, declaring that “the continued litigation herein 
(has) been precipitated by the defendants’ reluctance to 
accept clear legal direction, * * *.” 8 It would appear,

2 See, 53 FED at p. 39.
3 53 FED at p. 40.



37a

Opinion of United States Court of Appeals 
in Bradley Action

however, that these criticisms of the conduct of the Board, 
upon which, to such a large extent, the Court’s award rests, 
represent exercises in hindsight rather than appraisal of 
the Board’s action in the light of the law as it then ap­
peared.4 The District Court itself recognized that, during 
this very period when it later found the Board to have 
been unreasonably dilatory, there was considerable uncer­
tainty with reference to the Board’s obligation, so much 
so that the Court had held in denying plaintiffs’ request 
for mid-school year relief in the fall of 1970, that “it would 
not be reasonable to require further steps to desegregate 
* * giving as its reason: “Because of the nearly uni­
versal silence at appellate levels, which the Court inter­
preted as reflecting its own hope that authoritative Su­
preme Court rulings concerning the desegregation of 
schools in major metropolitan systems might bear on the 
extent of the defendants’ duty.” 6 In fact, in July, 1970, 
the Court was writing to counsel that, “In spite of the 
guidelines afforded by our Circuit Court of Appeals and 
the United States Supreme Court., there are still many 
practical problems left open, as heretofore stated, includ­
ing to what extent school districts and zones may or must 
be altered as a constitutional matter. A study of the cases 
shows almost limitless facets of study engaged in by the 
various school authorities throughout the country in at­
tempting to achieve the necessary results.” 6 The District

4 See Monroe v. Board of Com’rs. of City of Jackson, Tenn. (6th 
Cir. 1972), 453 F.2d 259, 263:

“In determining whether this Board’s conduct was, as found by 
the District Court, unduly obstinate, we must consider the 
state of the law as it then existed.”

5 53 FRD at p. 33.
6 See, Joint Appendix 74-75.



38a

Opinion of United States Court of Appeals 
in Bradley Action

Court had, also, earlier defended the School Board’s re­
quest of a stay of an order entered in the proceedings on 
August 17, 1970, stating: “Their original (the School 
Board’s) requests to the Fourth Circuit that the matter 
lie in abeyance were undoubtedly based on valid and com­
pelling reasons, and ones which the Court has no doubt 
were at the time both appropriate and wise, since defen­
dants understandably anticipated a further ruling by the 
United States Supreme Court in pending cases; * * 7
Earlier in 1970, too, the Court had taken note of the legal 
obscurity surrounding what at that time was perhaps the 
critical issue in the proceeding, centering on the extent 
of the Board’s obligation to implement desegregation with 
transportation. Quoting from the language of Chief Jus­
tice Burger in his concurring opinion in Norcross v. Board 
of Education of Memphis, Tenn. City Schools (1970), 397 
U. S. 232, 237, 90 S. Ct. 891, 25 L. Ed. 2d 426, the District 
Court observed that there are still practical problems to 
be determined, not the least of which is “to what extent 
transportation may or must be provided to achieve the 
ends sought by prior holdings of the Court.” 8 In fact, 
the District Court had during this very period voiced its 
own perplexity, despairingly commenting that “no real 
hope for the dismantling of dual school systems (in the 
Richmond School system) appears to be in the offing unless 
and until there is a dismantling of the all Black residen­
tial areas.” 9 At this time, too, as the District Court pointed 
out, there was some difficulty in applying even the term

7 325 F. Supp. at p. 832.
8 317 F. Supp. at p. 575.
9 317 F. Supp. at p. 566.



39 a

Opinion of United States Court of Appeals 
in Bradley Action

“unitary school system”.10 In summary, it was manifest 
in 1970, as the District Court had repeatedly stated, that, 
while Brown and other cases had made plain that segre­
gated schools were invalid, and that it was the duty of the 
School Board to establish a non-racial unitary system, 
the practical problems involved and the precise standards 
for establishing such a unitary system, especially for an 
urbanized school system—which incidentally wTere the very 
issues involved in the 1970 proceedings—had been neither 
resolved nor settled during 1970; in fact, the procedures 
are still matters of lively controversy.11 It would seem, 
therefore, manifest that, contrary to the premise on which 
the District Court proceeded in its opinion, the legal stan­
dards to be followed by the Richmond School Board in 
working out an acceptable plan of desegregation for its 
system were not clear and plain at any time in 1970 or 
even 1971.

It is true, as the District Court indicates, that the Su­
preme Court in 1968 had, in Green v. County School Board 
(1968), 391 U.S. 430, 88 S. Ct. 1689. 20 L. Ed. 2d 716, found 
“freedom-of-choiee” plans that were not effective unaccept­
able instruments of desegregation, and that the defendant 
Board, following that decision, had taken no affirmative 
steps on its own to vacate the: earlier Court-approved

. 10 That this term “unitary” is imprecise, the District Court stated 
in 325 F. Supp. at p. 844:

The law establishing what is and what is not a unitary school 
system lacks the precision which men like to think imbues 
other fields of law; perhaps much of the public reluctance to 
accept desegregation rulings is attributable to this indefinite­
ness.”

11 Bradley v. The School Board of the City of Richmond, Vir­
ginia, decided June 5, 1972, supra.



40a

Opinion of United States Court of Appeals 
in Bradley Action

“freedom-of-choice” plan for the Richmond School system, 
or to submit a new plan to replace it. In Green, the Court 
had held that, “if there are reasonably available other 
ways, such for illustration as zoning, promising speedier 
and more effective conversion to a unitary, nonracial school 
system, ‘freedom of choice’ must be held unacceptable.” 12 
In suggesting zoning, Green offered a ready and easily ap­
plied alternative to “freedom-of-choice” for a thinly popu­
lated, rural school district such as Old Kent, but other than 
denying generally legitimacy to freedom-of-choice plans, 
Green set forth few, if any, standards or benchmarks for 
fashioning a unitary system in an urbanized school dis­
trict, with a majority black student constituency, such as 
the Richmond school system. In fact, a commentator has 
observed that “Green raises more questions than it an­
swers”.13 Perhaps the School Board, despite the obvious 
difficulties, should have acted promptly after the Green 
decision to prepare a new plan for submission to the 
Court. Because of the vexing uncertainties that confronted 
the School Board in framing a new plan of desegrega­
tion, problems which, incidentally, the District Court itself 
finally concluded could only be solved by the drastic and 
novel remedy of merging independent school districts,14 
and pressed with no local complaints from plaintiffs or 
others, it was natural that the School Board would delay. 
Mere inaction under such circumstances, however, and in 
the face of the “practical difficulties” as reflected in the

12 391 U.S. at p. 441.
13 82 Har. L. Bev. 116.
14 A measure found inappropriate by this Court in Bradley V. 

The School Board of the City of Richmond, Virginia, decided 
June 5, 1972, supra.



41a

Opinion of United States Court of Appeals 
in Bradley Action

later litigation, cannot be fairly characterized as obdurate­
ness. Indeed the plaintiffs themselves were in some ap­
parent doubt as to how they wished to proceed in the period 
immediately after Green and took no action until March, 
1970. Even then they offered no real plan, contenting them­
selves with demanding that the School Board formulate a 
unitary plan, and with requesting an award of attorney’s 
fees. It is unnecessary to pursue this matter, however, since 
the District Court does not seem to have based its award 
upon the inaction of the School Board prior to March 10, 
1970, but predicated its award on the subsequent conduct of 
the School Board.

The proceedings, to which this award applies, began with 
the filing by the plaintiffs of their motion of March 10,1970, 
in which they asked the District Court to “require the de­
fendant school board forthwith to put into effect a method 
of assigning children to public schools and to take other 
appropriate steps which will promptly and realistically 
convert the public schools of the City of Richmond into a 
unitary non-racial system from which all vestiges of racial 
segregation will have been removed; and that the Court 
award a reasonable fee to their counsel to be assessed as 
costs.” With the filing of this motion, the Court ordered 
the defendant School Board to “advise the Court if it is 
their position that the public schools of the City of Rich­
mond, Virginia are being operated in accordance with the 
constitutional requirements to operate unitary schools as 
enunciated by the United States Supreme Court.” It added 
that, should the defendant School Board not contend that 
its present operations were in compliance, it should “advise 
the Court the amount of time” needed “to submit a plan.” 
Promptly, within less than a week after the Court issued



42a

Opinion of United States Court of Appeals 
in Bradley Action

this order, the School Board reported to the Court that (1) 
it had been advised that it was not operating “unitary 
schools in accordance with the most recent enunciations of 
the Supreme Court of the United States” and (2) it had 
requested HEW, and HEW had agreed, to make a study 
and recommendations that would “ensure” that the opera­
tion of the Richmond Schools was in compliance with the 
decisions of the Supreme Court. This HEW plan was to 
be made available “on or about May 1, 1970” and the Board 
committed itself to submit a proposed plan “not later than 
May 11, 1970”. A few days later, the District Court held a 
pre-trial hearing and specifically inquired of the School 
Board as to the necessity for “an evidentiary hearing” on 
the legality of the plan under which the schools were then 
operating. The defendant School Board candidly advised 
the Court that, so far as it was concerned, no hearing was 
required since it “admitted that their (its) freedom-of- 
choice plan, although operating in accord with this Court’s 
order of March 30, 1966, was operating in a manner con­
trary to constitutional requirements.” 15 The District Court 
characterizes this concession by the School Board as “re­
luctantly given, and its finding of reluctance at this early 
stage in the proceeding is an element in the District Court’s 
conclusion that the School Board has been obdurate. The 
record, however, provides no basis for this characterization 
of the conduct of the School Board. The School Board had 
manifested no reluctance to concede that its existing plan 
of operation did not comply with Green. When called on by 
the Court for a response to plaintiffs’ motion, it had acted 
with becoming dispatch to enlist the assistance of that 
agency of Government supposed to have expertise in the

15 338 F. Supp. 71.



43a

Opinion of United States Court of Appeals 
in Bradley Action

area of school desegregation and charged by law with the 
duty of assisting school districts with such problems. Every 
action of the School Board at this stage could be said to be 
reasonably calculated to facilitate the progress of the pro­
ceedings and to lighten the burdens of the Court. This con­
clusion is supported by the fact that what the Board did 
was apparently found acceptable and helpful by both the 
Court and the plaintiffs. Neither contended that the pro­
posed time-table was dilatory or that the use of HEW was 
an inappropriate agency to prepare an acceptable plan. As 
a matter of fact, the utilization of the services of HEW 
under these circumstances was an approved procedure at 
the time, one recommended by courts repeatedly to school 
districts confronted with the same problem as the Rich­
mond schools.16

On May 4, 1970, HEW submitted to the School Board 
its desegregation plan, prepared, to quote HEW, in re­
sponse to the Board’s own “expressed desire to achieve 
the goal of a unitary system of public schools and in ac­
cordance with our interpretation of action which will most

16 Green v. School Board of City of Roanoke, Virginia (4th Cir. 
1970), 428 F.2d 811, 812; Monroe v. County Bd. of Education of 
Madison Co., Tenn. (6th Cir. 1971), 439 F.2d 804, 806; Note, The 
Courts, HEW and Southern School Desegregation, 77 Yale L J  
321 (1967).

During oral argument, counsel for the plaintiffs contended that 
HEW had m recent months become a retarding factor in school 
desegregation actions, citing Norcross v. Board of Education of
Memphis, Civ. No. 3931 (W.D. Tenn., Jan. 12, 1972),----- F. Supp.
7 '■> '• Without passing on the justice of the criticism, it must
be borne in mind this was not the view in 1970, as is evident in 
the decisions cited. This argument emphasizes again, it may be 
noted, the erroneous idea that the reasonableness of the Board’s 
conduct in 1970 is to be tested, not by circumstances as they were 
understood then, but in the light of 1972 circumstances.



44a

Opinion of United States Court of Appeals 
in Bradley Action

soundly achieve this objective.” In formulating its plan, 
HEW received no instructions from the School Board, 
“Except to try our best to meet the directive of the Court 
Order and they gave me the Court Order.” There were no 
meetings of the School Board and HEW “until the plan 
had been developed in almost final form.” Manifestly, the 
Board acted throughout the period when HEW was pre­
paring its plan, in utmost good faith, enjoining HEW “to 
meet the directive” of the Court and relying on that spe­
cialized agency to prepare an acceptable plan. The Board 
approved, with a slight, inconsequential modification, the 
plan as prepared by HEW and submitted it to the Court 
on May 11, 1970. The District Court faults the Board for 
submitting this plan, declaring that the plan “failed to pass 
legal muster because those who prepared it were limited 
in their efforts further to desegregate by self-imposed re­
strictions on available techniques” 17 and emphasizing that 
its unacceptability “should have been patently obvious in 
view of the opinion of the United States Court of Appeals 
for the Fourth Circuit in Swann v. Charlotte-Mechlenburg 
Board of Education 431 F.2d (138), (4th Cir. 1970), which 
had been rendered on May 26, 1970.” 18 The failure to use 
“available techniques” such as “busing and satellite zon- 
ings” and whatever “self-imposed limitations” may have 
been placed on the planners were not the fault of the School 
Board but of HEW, to whom the School Board, with the 
seeming approval of the Court and the plaintiffs, had com­
mitted without any restraining instructions the task of 
preparing an acceptable plan. Moreover, at the time the

17 See, 53 F.R.D. at p. 31.
18 See, 338 F. Supp. at p. 71.



45a

Opinion of United States Court of Appeals 
in Bradley Action

Plan was submitted to the Court by the School Board, 
Swarm had not been decided by this Court. And when the 
Court disapproved the HEW plan, the Board proceeded 
in good faith to prepare on its own a new plan that was 
intended to comply with the objectives stated by the Court.

The Court did find some fault with the Board because, 
“Although the School Board had stated, as noted., that the 
free choice system failed to comply with the Constitution, 
producing as it did segregated schools, they declined to 
admit during the June (1970) hearings that this segrega­
tion was attributable to the force of law (transcript, hear­
ing of June 20, 1970, at 322)” and that as a result, “the 
plaintiffs were put to the time and expense of demonstrat­
ing that governmental action lay behind the segregated 
school attendance prevailing in Richmond.” 19 This claim 
of obstruction on the part of the Board is based on the 
latter’s refusal to concede, in reply to the Court’s inquiry, 
“that free choice did not work because it was de facto 
segregation”.20 It is somewhat difficult to discern the im­
portance of determining whether the “free choice” plan 
represented “de facto segregation” or not: It was candidly 
conceded by the School Board that “free choice”, as ap­
plied to the Richmond schools, was impermissible constitu­
tionally, and this concession was made whether the unac­
ceptability was due to “de facto” segregation or not.21 In 
a school system such as that of Richmond, where there had 
been formerly de jure segregation, Green imposed on the 
School Board the “duty to eliminate racially identifiable

19 See, 53 FED at p. 30.
20 See Joint Appendix 47, Tr. p. 322.
21 See 345 F.2d 322.



46a

Opinion of United States Court of Appeals 
in Bradley Action

schools even where their preservation results from educa­
tionally sound pupil assignment policies.” 22 The School 
Board’s duty was to eliminate, as far as feasible, “racially 
identifiable schools” in its systems.23 The real difficulty 
with achieving this result was that, whatever may have been 
the reasons for its demographic and residential patterns,24

22 82 Bar. L. Rev. 113; ef., Ellis v. Board of Public Instruction 
of Orange Co., Fla. (5th Cir. 1970), 423 F.2d 203, 204.

23 The very term “racially identifiable” has received no standard 
definition. In Beckett v. School Board of City of Norfolk (D.C. Va. 
1969), 308 F. Supp. 1274, 1291, rev. on other grounds, 434 F.2d 
408, the Court found that a school in which the representation of 
the minority group was 10 per cent or better was not “racially 
identifiable”. Dr. Pettigrew, the expert witness on whom the Dis­
trict Court in this proceeding relied heavily and who testified in 
Beckett, used 20 per cent in determining “racially identifiable” 
school population. See 308 F. Supp. 1291. The recent case of 
Yarbrough v. Hulbert-West Memphis School Dist. No. 4 (8th Cir. 
1972), 457̂  F.2d 333, 334, apparently would define as “racially 
identifiable” any school where the minority, whether white or black, 
was less than 30 per cent. The District Court in this proceeding 
would, in its application of the term “racially identifiable”, con­
strue the term as embracing the idea of a “viable racial mix” in 
the school population, which will not lead to a desegregation of the 
system. 338 F. Supp. at pp. 194-5. Actually, as Dr. Pettigrew 
indicated, it would seem the term “racially identifiable” has no 
fixed definition and, its application, will vary with the circum­
stances of the particular situation, just as a plan of desegregation 
itself will vary, since, as the Court said in Green, supra, at p. 439, 
“There is no universal answer to complex problems of desegrega­
tion ; there is obviously no one plan that will do the job in every 
ease.”
. 24 That school policy is generally a minimal factor in such situa­

tion, see 85 Bar. L. Rev. 77. In fact, the use of zoning and restric­
tive covenants as instruments of segregation is far more typical of 
northern than southern communities. See, McCloskey, The Modern 
Supreme Court (Har., 1972), pp. 109-10:

“In fact, the maintenance of ‘black ghettos’ in the cities was 
north’s substitute for the segregation laws of the south # * *.



47a

Opinion of United States Court of Appeals 
in Bradley Action

there was, as the Court later reluctantly recognized, no 
practical way to achieve a racially balanced mix, whatever 
plan of desegregation was adopted. With a school popula­
tion approximately 65 per cent black, it was not possible 
to avoid having schools that would be heavily black.25 The 
constitutional obligation thus could, in that setting, only 
have as its goal the one stated by the District Court, i.e., 
“to the extent feasible within the City of Richmond.” 26 
Indeed, it was the very intractability of the problem of 
achieving a “viable racial mix” that prompted the Court 
to suggest in July, 1970, that it might be appropriate for 
the defendant School Board to discuss with the school of­
ficials of the contiguous counties the feasibility of con­
solidation of the school districts, “all of which may tend 
to assist them in their obligation”.27

The Court s finding of obstruction particularly centers 
on the substitute plan which the School Board proposed 
on July 23, 1970, in accordance with the Court’s previous 
directive. It found two objections to the plan. The ob­
jections are actually part of one problem, i.e., transporta­
tion. The first objection was that the plan did not require 
as much integration in the elementary grades as in the 
higher grades. Such a difference in treatment, however,

The Presidents Committee on Civil Rights reported in 1947 
that the amount of land covered by racial restriction in Chicago 
was as high as 80 per cent and that, according to students of 
the subject, virtually all new subdivisions are blanketed by 
these covenants.”
Cf., United States v. Choctaw County Board 

(D.C. Ala. 1971), 339 P. Supp. 901, 903.
26 See 325 P. Supp. 835.

of Education

27 See Joint Appendix 74.



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Opinion of United States Court of Appeals 
in Bradley Action

the Court found had some support in both Swann28 and 
Brewer.29 An increase in the desegregation of the ele­
mentary grades, however, depended upon the purchase 
and use of a considerable amount of transportation equip­
ment by the board; and this was the basis of the second 
criticism that “the School Board had in August (1970) 
still taken no steps to acquire the necessary equipment.” 30 
The Court repeated this criticism with reference to the 
plaintiffs’ mid-term motion made in the fall of 1970 for 
an amendment of defendant’s approved interim plan which, 
for implementation, “required the purchase of transporta­
tion facilities which the School Board still would only say 
it would acquire if so ordered.” 31 Yet at the very time 
when the action of the School Board in failing to buy 
buses was thus being found to be “unreasonably obdurate”, 
the Court itself was declaring on August 7, 1970, that “it 
seems to me it would be completely unreasonable to force 
a school system that has no transportation, and you all 
don’t have any to any great extent, to go out and buy new 
busses when the United States Supreme Court may say 
that is wrong.” 32 Again, as late as January 29, 1971, the 
Court, in refusing to order the immediate implementation

28 431 F.2d 138.
29 In 324 F. Supp. 468, the Court said:

Language and holdings in both Swann and Brewer v. 
School Board of City of Norfolk, 434 F.2d 408 (4th Cir. 
June 22, 1970), indicate that a school board’s duty to desegre­
gate at the secondary level is somewhat more categorical than 
at the elementary level.”

30 53 FRD 32.
31 53 FRD 32-3.
32 Joint Appendix 92-3.



49a

Opinion of United States Court of Appeals 
in Bradley Action

of a plan submitted by the plaintiffs, which “would require 
the acquisition of additional transportation facilities not 
then available”, found that “the possibility that forthcom­
ing rulings (by the Supreme Court)” might make such 
acquisition unnecessary and a needless expense induced 
“the Court to decide that immediate reorganization of the 
Richmond system would be ‘unreasonable” under Swann!’ 33 
If the Court did not feel it was reasonable in January, 
1971, to require the Board to purchase additional buses, 
it certainly cannot be said that, in the period of uncer­
tainty in 1970, the failure of the School Board to propose 
such acquisition, justifies any charge of unreasonableness, 
much less obdurateness or action “in defiance of law” or 
taken in “bad faith”.

The conclusion of the District Court that the Board was 
“unreasonably obdurate”, it seems, was influenced by the 
feeling, repeated in a number of the Court’s opinions, that 
“Each move (by the Board) in the agonizingly slow process 
of desegregation has been taken unwillingly and under 
coercion”.34 The record, as we read it, though, does not 
indicate that the Board was always halting, certainly not 
obstructive, in its efforts to discharge its legal duty to 
desegregate; nor does it seem that the Court itself had 
always so construed the action of the Board. In June, 
1970, the Court remarked, that, while not satisfied “that 
every reasonable effort has been made to explore” all 
possible means of improving its plan, it was “satisfied Dr. 
Little and Mr. Adams (the school administrators) have 
been working day and night diligently to do the best they

33 See, Joint Appendix 132, 134, 135.
34 3 38 F. Supp. 103; see, also, 53 FRD 39.



50a

Opinion of United States Court of Appeals 
in Bradley Action

could, the School Board too.” 36 It may be that in the early 
years after Brown the School Board was neglectful of its 
responsibility, but, beginning in the middle of 1965, it 
seems to have become more active. Moreover, the prompt­
ness and vigor with which the Board adopted and pressed 
the suggestion of the Court that steps be considered in 
connection with a possible consolidation of the Richmond 
schools with those of Chesterfield and Henrico Counties 
must cast doubt upon any finding that the Board was un­
willing to explore any avenue, even one of uncharted 
legality, in the discharge of its obligation. The Court wrote 
its letter suggesting a discussion with the other counties 
looking to such possible consolidation on July 6, 1970. 
The letter was addressed to the attorneys for the plain­
tiffs but a copy went to counsel for the School Board. 
Nothing was done by counsel for the plaintiffs as a result 
of this letter but on July 23, 1970, the Board moved the 
Court for leave to make the School Boards of Chesterfield 
and Henrico Counties parties and to serve on them a third- 
party complaint wherein consolidation of their school sys­
tems with that of the Richmond systems would be required. 
The Board thereafter took the “laboring oar” in that 
proceeding. Neither it nor its counsel has been halting in 
pressing that action, despite substantial local disapproval.36

It is clear that the Board, in attempting to develop 
a unitary school system for Richmond during 1970, was 
not operating in an area where the practical methods to 
be used were plainly illuminated or where prior decisions 
had not left a “lingering doubt” as to the proper pro-

36 See, Joint Appendix 92.
36 See, 338 F. Supp. 67, 100-1.



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Opinion of United States Court of Appeals 
in Bradley Action

cedure to be followed.37 Even the District Court had its 
uncertainties. All parties were awaiting the decision of 
the Supreme Court in Swann. Before Swann was decided, 
however, the parties were engaged in an attempt to de­
velop a novel method of desegregating the Richmond school 
system for which there was not at the time legal precedent. 
Nor can it be said that there was not some remaining con­
fusion, at least at the District level, about the scope of 
Swann itself.88 The frustrations of the District Court in 
its commendable attempt to arrive at a school plan that 
would protect the constitutional rights of the plaintiffs 
and others in their class, are understandable, but, to some 
extent, the School Board itself was also frustrated. It 
seems to un unfair to find under these circumstances that 
it was unreasonably obdurate.

II.
The District Court enunciated an alternative ground 

for the award it made. It concluded that school desegrega­
tion actions serve the ends of sound public policy as ex- 
pi essed in Congressional acts and are thus actually public

37 See, Local No. 149 I.V., V.A., A. & A.I.W. v. American Brake 
Shoe Co. (4th Cir. 1962), 298 F.2d 212, 216, cert, den. 369 U.S. 
873, 82 S. Ct. 1142, 8 L. Ed. 2d 276.
„ In Person v. Bay, 386 U.S. 547, 557 (1967), it was stated that 
a police_ officer is not charged with predicting the future course of 

constitutional law.” By like token, it would seem a school board 
should not be required, under penalty of being charged with 
obdurateness and being saddled with onerous attorneys’ fees, to 
anticipate or predict the future course of “constitutional law” in 
the murky area of school desegregation.

See, Winston-Salem/Forsyth County Board of Education v. 
bcott, opinion of Chief Justice Burger, dated August 31, 1971, 

U.S. —— .



52a

Opinion of United States Court of Appeals 
in Bradley Action

actions, carried on by “private-attorneys general”, who are 
entitled to be compensated as a part of the costs of the 
action. Specifically, it held that “exercise of equity power 
requires the Court to allow counsels’ fees and expenses, 
in a field in which Congress has authorized broad equitable 
remedies ‘unless special circumstances would render such 
an award unjust.’ ” 39 Apparently, though, the District 
Court would limit the application of this alternative 
ground for the award to those situations where the rights 
of the plaintiff were plain and the defense manifestly with­
out merit. This conclusion follows from the fact that the 
Court finds this right of an award only arose in 1970 and 
1971, when it might be presumed from previous expres­
sions in the opinion, the Court concluded that all doubts 
about how to achieve a non-racial unitary school system 
had been resolved, and any failure of a school system to 
inaugurate such a system was obviously in bad faith and 
in defiance of law. That follows from this statement made 
by way of preface to its exposition of its alternative 
ground:

“Passing the question of the appropriateness of allow­
ing fees on the basis of traditional equitable stan­
dards, the Court is persuaded that in 1970 and 1971 
the character of school desegregation litigation has 
become such that full and appropriate relief must in­
clude the award of expenses of litigation. This is an 
alternative ground for today’s ruling.” 40

If this is the basis for the Court’s alternative ground, it 
really does not differ from the rule that has heretofore

39 See 53 PRD at p. 42.
40 See, 53 PRD at p. 41.



53a

Opinion of United States Court of Appeals 
in Bradley Action

been followed consistently by this Court that, where a 
defendant defends in bad faith or in defiance of law, equity 
will award attorney’s fees. The difficulty with the applica­
tion of the Court’s alternative ground for an award on 
this basis, though, is its assumption that by 1970 the law 
on the standards to be applied in achieving a unitary school 
system had been clearly and finally determined. As we 
have seen, there was no such certainty in 1970; indeed it 
would not appear that such certainty exists today. And it 
is this very uncertainty that is the rationale of the decision 
in Kelly v. Guinn (9th Cir. 1972), 456 F.2d 100, 111, where 
the Court, citing both the District Court’s opinion involved 
in this appeal (53 FED 28), and Lee v. Southern Home 
Sites Corp. (5th Cir. 1970), 429 F.2d 290, 295-296,41 sus­
tained a denial of attorney’s fees in a school integration 
case, because:

“First, there was substantial doubt as to the school dis­
trict’s legal obligation in the circumstances of this 

case; the district’s resistance to plaintiffs’ demands 
rested upon that doubt, and not upon an obdurate re­
fusal to implement clear constitutional rights. Second, 
throughout the proceedings the school district has 
evinced a willingness to discharge its responsibilities 
under the law when those duties were made clear.”

If, however, an award of attorney’s fees is to be made 
as a means of implementing public policy, as the District 
Court indicates in its exposition of its alternative ground 
of award, it must normally find its warrant for such action

41 See, also, Lee v. Southern Home Sites Corp. (5th Cir 1971) 
444 F.2d 143.



54a

Opinion of United States Court of Appeals 
in Bradley Action

in statutory authority.42 Congress, however, has made no 
provision for such award in school desegregation cases. 
Legislation to such effect, included in a bill to assist in the 
integration of educational institutions, was introduced in 
1971 in Congress but it was not favorably considered. 
Moreover, in the Civil Eights Act of 1964, it expressly pro­
vided for such award in both the equal employment op­
portunity43 and the public accommodations sections44 but 
pointedly omitted to include such a provision in the public 
education section.45 In giving effect to this contrast in the 
several titles of the Civil Eights Act of 1964, and in affirm­
ing that any award of attorney’s fees in a school desegrega­
tion case must be predicated on traditional equitable stan­
dards, the Court in Kemp v. Beasley (8th Cir. 1965), 352 
F.2d 14, 23, said:

“Congress by specifically authorizing attorney’s fees in 
Public Accommodation cases and not making allowance 
in school segregation cases clearly indicated that inso­
far as the Civil Eights Act is concerned, it does not 
authorize the sanction of legal fees in this type of 
action. The doctrine of Expressio unium est exdusio 
alterius applies here and is dispositive of this conten­
tion.”

42 See Fleischmann v. Maier Brewing Co. (1967), 386 U.S. 714, 
717, 87 S. Ct. 1404, 18 L. Ed. 2d 475; see, also, Brewer v. School 
Board of City of Norfolk, Virginia, supra, note 22, at p. 950.

43 See, Section 2000 e-5(k), 42 U.S.C.
44 See, Section 2000 a-3(b), 42 U.S.C.
45 Section 2000 c-7, 42 U.S.C.; and see, TJnited States v. Cray 

(D.C. R.I. 1970), 319 F. Supp. 871, 872-3. See, however, Note 57, 
post.



55a

Opinion of United States Court of Appeals 
in Bradley Action

The same conclusion was reached in Monroe v. Board of 
Com’rs. of City of Jackson, Tenn. (6th Cir. 1972), 453 F.2d 
259, 262-3, note 1, where an award though sustained, was 
sustained on the ground of “unreasonable, obdurate ob­
stinacy” as enunciated in Bradley v. School Board of Rich­
mond, Virginia (4th Cir. 1965), 345 F.2d 310, 321, and not 
as a vehicle for the enforcement of public policy. To the 
same effect is United States v. Gray, supra.

It is suggested that Mills v. Electric Auto-Lite (1970), 
396 U.S. 375, 90 S. Ct. 616, 24 L. Ed. 2d 593, and Lee v. 
Southern Home Sites Corp. (5th Cir. 1971), 444 F.2d 143, 
sustain this alternative award as in the nature of a sanction 
designed to further public policy. Any reliance on Mills is 
“misplaced, however, because conferral of benefits, not 
policy enforcement, was the Mills Court’s stated justifica­
tion for its holding.” 50 Tex. L. Rev. 207 (1971).46 In fact, 
the award in Mills was based on the same concept of bene­
fit as was used to support the award in Trustees v. Gree- 
nough (1881), 105 U.S. 527. 36 Mo. L. Rev. 137 (1971). 
Equally inapposite is Lee. Though filed under Section 1982, 
it was like unto, and, so far as relief was concerned, should 
be treated similarly as an action under Section 3612(c), 42 
U.S.C., in which attorney’s fees are allowable.47 By this

46 See, also, Kahan v. Rosenstiel '('3d Cir. 1970), 424 F.2d 161 
166 :

“In the Mills opinion, Justice Harlan noted that the plaintiffs’ 
suit conferred a benefit on all the shareholders * * *.”■ (Italics 
added.)

47 See, particularly note 2, p. 147, 444 F.2d.
This case has been criticized in 50 Tex. L. Rev. 207. Thus, it 

finds untenable its attempt to identify its award with the statutory 
authorization provided in Section 3612(c), because, “Under the 
latter statute (section 3612) the court may not award attorney’s 
fees to a plaintiff financially able to pay his own fees.” (Page 208).



56a

Opinion of United States Court of Appeals 
in Bradley Action

reasoning, the Court sought to bring the award within the 
umbrella of a parallel specific statutory authorization.48 
There is no basis for such a rationale here.

If, however, the rationale of Mills is to be stretched 
so as to provide a vehicle for establishing judicial power 
justifying the employment of award of attorney’s fees to 
promote and encourage private litigation in support of 
public policy as expressed by Congress or embodied in the 
Constitution, it will launch courts upon the difficult and 
complex task of determining what is public policy, an issue 
normally reserved for legislative determination, and, even 
more difficult, which public policy warrants the encourage­
ment of award of fees to attorneys for private litigants 
who voluntarily take upon themselves the character of pri­
vate attorneys-general.49 Counsel in environmental cases 
would claim such a role for their services.50 The protec­
tion of historical houses and monuments against the en­
croachment of highways has been cloaked within the mantle 
of public interest and it would be argued should receive 
the encouragement of an award.51 Consumers’ suits are

48 Knight v. Auciello (1st Cir. 1972), 453 F.2d 852, is a similar 
case, involving discrimination proscribed by Section 1982, 42 U.S.C.

49 See, Note, The Allocation of Attorney’s Fees After Mills v. 
Electric Auto-Lite Co., 38 University of Chicago L. Rev. 316, at 
pp. 329-30* (1971).

50 See, Section 4332(2), et seq., 42 U.S.C.; Environmental De­
fense Fund v. Corps of Eng. of U. S. Army (D.C. Ark. 1971), 
325 F. Supp. 749; Environmental Defense Fund, Inc. v. Corps of 
Engineers (D.C. D.C. 1971), 324 F. Supp. 878; Businessmen A f­
fected Severely, etc. v. D.C. City Council (D.C. D.C. 1972), 339 
F. Supp. 793.

61 See, Section 461, 16 U.S.C., and Section 4331(b) (4), 42 U.S.C.; 
West Virginia Highlands Conserv. v. Island Creek Coal Co. (4th 
Cir. 1971), 441 F.2d 232; Cf., Ely v. Velde (D.C. Va. 1971), 321 
F. Supp. 1088.



57a

Opinion of United States Court of Appeals 
in Bradley Action

clearly to be considered.62 Apportionment suits justify 
awards under this theory.53 First Amendment rights are 
often spoken of as preferred constitutional rights. At­
tacks upon statutes infringing free speech would, under 
this theory, command an allowance. But it must be em­
phasized that whether the enforcement of Congressional 
purpose in all these cases commands an award of attor­
ney’s fees is a matter for legislative determination. And 
Congress has not been reticent in expressing such purpose 
in those cases where it conceives that such special award 
is appropriate. In many instances, where Congress has 
enacted statutes designed to further public purpose, it has 
bulwarked their enforcement with provisions for the al­
lowance of counsel fees to attorneys for private parties 
invoking such statutes; in other cases it has denied such 
awards.64 In some of the statutes authorizing such allow­
ances, the award is, as in the statute involved in Newman 
v. Piggie Park Enterprises (1968), 390 U.S. 400, 88 S. Ct. 
964, 19 L. Ed. 2d 1263, either mandatory or practically 
so; in others it is discretionary66 and the granting of 
awards is generally made through the use of the same 
guidelines as motivate courts in making awards under the 
traditional equity rule. Should the courts, in those in-

62 See, 38 University of Chicago L. Rev. 316.
68 Actually, an alternative award has been made in such a case.

Sims v. Amos (3-judge ct. Ala. 1972), ------  F. Supp. ------- (filed
March 17, 1972).

64 See Annotation, 8 L. Ed. 2d 894, at pp. 922-32, for a listing 
of statutes authorizing an award of attorney’s fees. To this list 
should be added Section 1640, 15 U.S.C. (Truth-in-Lending Act).

65 See, for instance, Section 153, 43 U.S.C.; United Transporta­
tion Union v. Soo Line RR Co. (7th Cir. 1972), 457 F.2d 285.



58a

Opinion of United States Court of Appeals 
in Bradley Action

stances where Congress has failed to grant the right, re­
view the legislative omission and sustain or correct the 
omission as the court’s judgment on public policy suggests? 
This, it seems to us, would be an unwarranted exercise 
of judicial power. After all, Courts should not assume that 
Congress legislates in ignorance of existing law, whether 
statutory or precedential. Accordingly, when Congress 
omits to provide specially for the allowance of attorney’s 
fees in a statutory scheme designed to further a public 
purpose, it may be fairly accepted that it did so purpose­
fully, intending that the allowance of attorney’s fees in 
cases brought to enforce the rights there created or recog­
nized should be allowed only as they may be authorized 
under the traditional and long-established principles as 
stated in Sprague v. Ticonic Bank (1939), 307 U.S. 161, 
166, 59 S. Ct. 777, 83 L. Ed. 1184. Such consideration, it 
would seem, was the compelling reason that prompted one 
commentator to offer the apt caveat that the determination 
of public policy as a predicate for such awards should be 
more safely left with Congress and not undertaken by the 
Courts. Thus, in 50 Tex. L. Rev. 209 (1971), it is stated:

“The decision, (referring to Lee) however, sanctions 
excessive judicial discretion that may emasculate the 
general rule against fee awards and inject more un­
predictability into the judicial process. The legislature 
should formulate a rule that would promote predicta­
bility and utilize the power inherent in fee allocation 
to pursue the goals it desires to achieve, one of which 
would be equal access to the courts.”

Even the author of the Note, The Allocation of Attorney’s 
Fees After Mills v. Electric Auto-Lite Co., 38 University



59a

Opinion of United States Court of Appeals 
in Bradley Action

of Chicago L. Rev., 316, though sympathetic to the exten­
sion of Mills to cover awards of attorney’s fees in support 
of public policy, recognizes that a general policy, appli­
cable to all cases, on the award of attorney’s fees should 
be adopted, concluding its review of the subject with this 
comment:

“Logically, one of two things must happen: either ju­
dicial discretion to grant fees on policy grounds will 
result in universal fee shifting from the successful 
party, or the courts will withdraw to the traditional 
position, denying any fee transfer without specific stat­
utory authorization. Mills represents an uneasy half­
way house between these two extremes.” (Page 336)

We find ourselves in agreement with the conclusion that 
if such awards are to be made to promote the public 
policy expressed in legislative action, they should be au­
thorized by Congress and not by the courts.66 This is 
especially true in school cases, where the guidelines are 
murky and where harried, normally uncompensated School 
Boards must tread warily their way through largely un­
charted and shadowy legal forests in their search for an 
acceptable plan providing what the courts will hopefully 
decide is a unitary school system.

66 It is interesting that in all the eases where the right to make 
an award for policy reasons has been stated, it has been stated 
simply as an alternative ground to a finding of unreasonable ob­
duracy. See, 53 PRD at pp. 39-42, and Lee, supra, at p. 144. In
Sims, supra, at p . ----- , the Court found that, “The history of the
present litigation is replete with instances of the Legislature’s 
neglect of, and even total disregard for, its constitutional obligation 
to reapportion.” In short, no court has yet predicated an award 
exclusively upon the promotion of public policy.



60a

Opinion of United States Court of Appeals 
in Bradley Action

Accordingly, until Congress authorizes otherwise awards 
of attorney’s fees in school desegregation cases must rest 
upon the traditional equitable standards as stated in 
Bradley v. Richmond School Board (4th Cir. 1965), 345 
F.2d 310, which provide ample scope for the award in 
appropriate cases.

III.
After the above opinion had been prepared but not 

issued, the Congress enacted Section 718 of the Emergency 
School Aid Act. The appellees promptly called to the 
Court’s attention this Section, suggesting that it provided 
an alternative basis for the award made. They construed 
the reference in the Section to “final order” to embrace 
any appealable order dealing with any issue raised in a 
school desegregation case. Any order which had been ap­
pealed and was pending on appeal, unresolved, on the effec­
tive date of the Section (i.e., .July 1, 1972), they argued, 
could provide a proper vehicle for an award under the 
Section.563-

Since this issue of the application of Section 718 was 
raised simultaneously in a number of other pending ap­
peals, it was determined to withhold the above opinion 
for the time being, and to consider en banc the reach of

66a During the course 0f the oral argument C0Unsel for the appel- 
lees was asked to define the term “final order” as used in Section 
718. His reply was,

. “ * * * there is mention of final order in the legislative mate- 
rial they use that term rather than a final judgment because 
m recognition of the peculiar nature of school cases,—that is 
you may have a wave of litigation that would end up in a final 
decision by this court or the Supreme Court and then the case 
would again be relitigated later—that order which is appeal- 
able is a final order.”



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Opinion of United States Court of Appeals 
in Bradley Action

Section 718, as applied both to this case and to the other 
related appeals. Such en banc hearing has been had and 
the Court has concluded that Section 718 does not reach 
services rendered prior to June 30, 1972.67

Were it to be construed as extending to any “final order”, 
entered as “necessary to secure compliance”, and pending 
unresolved on the effective date of the Act (which is the 
plaintiffs’ construction of the sweep of the Section), such 
Section could not be used as a vehicle to validate this 
award. This is so because there was no “final order” 
pending unresolved on appeal on June 30, 1972, to which 
this award could attach. The only proceeding pending un­
resolved in this case on May 26, 1971, when the District 
Court issued its order allowing attorney’s fees, was the 
action begun on motion of the School Board itself to re­
quire the merger of the Richmond schools with those of 
the contiguous counties of Chesterfield and Henrico. All 
orders issued prior to that date in tins desegregation action 
had long since become final and were not pending on 
appeal either on May 26 or on the date Section 718 became 
effective. Thus, on August 17, 1970, the District Court 
had approved the School Board’s interim plan for the 
school year 1970-1. There was no appeal perfected from 
that order. The plaintiffs had moved on December 9, 1970 
for additional relief but that motion had been denied by 
an order dated January 29, 1970, which, incidentally, was 
the same date used by the District Court for the cut-off 
of its allowance of attorney’s fees. Again, there was no

57 James v. The Beaufort, County Board of Education (72-1065) ; 
Copeland, et at. v. School Board of the City of Portsmouth, Vir­
ginia, et at. (Nos. 71-1993 and 71-1994); Thompson v. The School 
Board of the City of Newport News, Virginia, et al. (Nos 71-2032 
and 71-2033), filed October ------ , 1972.



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Opinion of United States Court of Appeals 
in Bradley Action

appeal from that order dismissing plaintiffs’ application 
for relief, and, even if it he assumed that plaintiffs’ at­
torneys are to he granted attorneys’ fees when they do 
not prevail (an assumption clearly not permitted under 
the language of Section 718), the proceeding under which 
that order was entered was not pending when Section 718 
became effective.58 To restate: The only proceedings pend­
ing undetermined by an order that had not become final 
on the date Section 718 became effective was the action 
begun by the School Board and resulting in the order of 
the District Court dated January 10, 1972.69 That order, 
which, it may be assumed, is still pending since the School 
Board is presently seeking certiorari, was reversed by this 
Court60 and, unless the decision of this Court is in turn 
reversed, it will not support any allowance of attorneys’ 
fees, since Section 718 authorizes allowance only when 
plaintiffs have prevailed.

R eversed .

68 It is true that on January 29, 1971, the School Board sub­
mitted to the District Court its proposed plan for the operation of 
the Richmond schools for the school year 1971-2. There seems to 
have been either no dispute over this plan or the proposal was 
swallowed up in the more expansive merger action.

59 338 F. Supp. 67.
60 4 62 F.2d 1058.



63a

Opinion of United States Court of Appeals 
in Bradley Action

W i k t e e , Circuit Judge, dissenting:
The in banc court holds that this case is not governed 

by § 718 of Title VII, “Emergency School Aid Act,” of the 
Education Amendments of 1972. P.L. 92-318; 86 Stat. 235; 
1972 U.S. Code and Admin. News 1908, 2051. The panel 
concludes both that the Richmond School Board was not 
guilty of “unreasonable, obdurate obstinacy” and that plain­
tiffs were not entitled to recover counsel fees under the 
private attorney general concept. On all issues, I would 
conclude otherwise and I therefore respectfully dissent.

I.

Because I conclude not only that § 718 is applicable to 
this litigation, but also that, as a matter of statutory 
construction, its terms are met, I place my dissent from 
the panel’s decision primarily on that ground. If, how­
ever, § 718 is treated as inapplicable to this case, I would 
affirm the district court, preferably on my concurring 
views in Brewer v. School Board of City of Norfolk, Vir­
ginia, 456 F.2d 943, 952-54 (4 Cir. 1972) cert. den. —
U.S. -----  (1972). Even if the obdurate obstinacy test
controls, I would still affirm. As I read the record, I can 
only conclude that for the period for which an allowance 
of fees was made, the Richmond School Board was obdu­
rately obstinate. Commendably, it seized the initiative in 
vindicating plaintiffs’ rights by seeking to sustain a con­
solidation of school districts; but this was a latter-day con­
version that occurred after the district court suggested that 
consolidation be explored. Until that time the record re­
flects the Board’s stubborn reluctance to implement Brown 
I (Brown v. Board of Education, 347 U.S. 483 (1954) in 
the light of Green v. County School Board of New Kent



64a

Opinion of United States Court of Appeals 
in Bradley Action

County, Va., 391 U.S. 430' (1968); Alexander v. Holmes 
County Board of Education, 396 U.S. 19 (1969); Carter v. 
West Feliciana Parish School Board, 396 U.S. 226 (1969); 
and, while the litigation was progressing*, Swann v. Char- 
lotte-Mecklenburg Board of Education, 402 U.S. 1 (1971). 
The history of the litigation, as set forth in the opinion 
of the district court, is sufficient to prove the point. Brad­
ley v. School Board of City of Richmond, Virginia, 53 
F.R.D. 28, 29-33 (E.D. Va. 1971).

I I .

I turn to the more important questions of the scope and 
application of § 718. Neither in the instant case, nor in
James v. The Beaufort County Board of Education, -___
F.2d (4 Cir. decided simultaneously herewith), does 
the majority articulate in other than summary form why 
§718 should not apply to cases pending on its effective 
date (July 1, 1972). I  conclude that it does apply, and in 
the face of the majority’s silence, I  must discuss the per­
tinent authorities at some length.

The text of § 178 is set forth in the margin.1 Its enact­
ment presents no question of retroactive application to this

Attorney Fees
1 Sec. 718. Upon the entry of a final order by a court of the 

United States against a local educational agency, a State (or any 
agency thereof), or the United States (or any agency thereof), 
for failure to comply with any provision of this title or for dis­
crimination on the basis of race, color, or national origin in vio­
lation of title VI of the Civil flights Act of 1964, or the four­
teenth amendment to the Constitution of the United States as 
they pertain to elementary and secondary education, the court, in 
its discretion, upon a finding that the proceedings were necessary 
to bring about compliance, may allow the prevailing party, other 
than the United States, a reasonable attorney’s fee as part of the 
costs.



65a

Opinion of United States Court of Appeals 
in Bradley Action

litigation. As I shall show, the issue of the allowance of 
counsel fees has been an issue throughout every stage of 
the proceedings; and the proceedings were not terminated 
when §718 became effective on July 1, 1972, because this 
appeal was pending before us. This is not a case where 
a subsequent statute is sought to be applied to events long 
past and to issues long finally decided. Rather, it is a case 
which presents the concurrent application of a statute to 
an issue still in the process of litigation at the time of its 
enactment. United States v. Schooner Peggy, 1 Cranch 103 
(1801), and Thorpe v. Housing Authority of Durham, 393 
U.S. 268 (1969), are the significant controlling authorities.

In Peggy, while an appeal was pending from a decision 
of the lower court in a prize case, the United States en­
tered into a treaty with France, which if applicable would 
have required reversal. The treaty explicitly contemplated 
that it would be applicable to seizures that had taken place 
prior to the treaty’s ratification where litigation had not 
been terminated prior to ratification. On the basis of the 
new treaty, the Supreme Court reversed the decision of 
the lower court. In the opinion of Mr. Justice Marshall, 
it was said:

It is in the general true that the province of an appel­
late court is only to inquire whether a judgment when 
rendered was erroneous or not. But if, subsequent to 
the judgment, and before the decision of the appellate 
court, a law intervenes and positively changes the rule 
which governs, the law must be obeyed, or its obliga­
tion denied. If the law be constitutional, . . .  I know of 
no court which can contest its obligation. It is true 
that in mere private cases between individuals, a court 
will and ought to struggle hard against a construction



66a

Opinion of United States Court of Appeals 
in Bradley Action

which will, by a retrospective operation, affect the 
rights of parties, but in great national concerns, where 
individual rights, acquired by war, are sacrificed for 
national purposes, the contract making the sacrifice 
ought always to receive a construction confirming to 
its manifest import; and if the nation has given up 
the vested rights of its citizens, it is not for the court, 
but for the government, to consider whether it be a 
case proper for compensation. In such a case the court 
must decide according to existing laws, and if it be 
necessary to set aside a judgment, rightful when ren­
dered, but which cannot be affirmed but in violation of 
law, the judgment must be set aside.

United States v. Schooner Peggy, supra, 1 Cranch at 109.
Peggy may be interpreted in two ways: Under a narrow 

interpretation the Court held only that, where the law 
changes between the decision of the lower court and an 
appeal, the appellate court must apply the new law if, by 
its terms, it purports to be applicable to pending cases. 
The decisional process, under this interpretation, requires 
the appellate court to examine the intervening law and to 
determine whether it was intended to apply to factual situa­
tions which transpired prior to the law’s enactment. Since 
the treaty in Peggy explicitly applied to situations where 
the controversy was still pending, it followed that the 
statute should be applied in deciding the case. Certainly 
the facts of Peggy and much of the language of the opinion 
of Mr. Justice Marshall support this interpretation.

By a broader interpretation, Peggy may be considered 
to hold that where the law has changed between the oc­
currence of the facts in issue and the decision of the appel-



67a

Opinion of United States Court of Appeals 
in Bradley Action

late court and where the controversy is still pending, the 
appellate court must apply the new law, unless there is a 
positive expression that the new law is not to apply to 
pending cases. This is the interpretation of Peggy which 
found its final expression in Thorpe. But before turning 
to Thorpe it is well to consider intervening decisions.

In Vandenbark v. Owens-Illinois Glass Co., 311 U.8. 538 
(1941), the Court held that a federal appellate court in 
exercising diversity jurisdiction must follow a state court 
decision which was subsequent to and contradicted the 
district court decision. In Carpenter v. Wabash By. Co., 
309 U.S. 23 (1940), the Court held that the appellate court 
must apply an intervening federal statute where the case 
is pending on appeal. However, in Carpenter, the statute 
explicitly indicated that it was to apply to pending cases. 
In United States v. Chambers, 291 U.S. 217 (1934), the 
Court held that indictments returned pursuant to the 
eighteenth amendment, and before the adoption of the 
twenty-first amendment, must be dismissed after passage 
of the twenty first amendment even though the acts when 
committed were crimes. See also Ziffrin v. United States, 
318 U.S. 73 (1943). Then, in Linkletter v. Walker, 381 
U.S. 618 (1965), the Court drew a firm distinction between 
those cases where an appeal is still pending and those that 
are final (“where the judgment of conviction was rendered, 
the availability of appeal exhausted, and the time for peti­
tion for certiorari had elapsed . . . ,” 381 U.S. at 622, n. 5). 
The Court held that Mapp v. Ohio, 367 U.S. 643 (1961), 
applied to pending cases but not to final cases. It dis­
cussed the previous decisions to which reference has been 
made and concluded that “[ujnder our cases . . .  a change 
in law will be given effect while a case is on direct review.



68a

Opinion of United States Court of Appeals 
in Bradley Action

. . . ” 381 U.S. at 627. It should be noted, however, that 
the Court was by no means consistent in applying this 
rule after Linkletter. See Desist v. United States, 394 U.S. 
244, 256-60 (1969) (Harlan, J., dissenting).

In Thorpe, the Housing Authority gave the tenant notice 
to vacate in August, 1965, but refused to give its reasons 
for the notice. When the tenant refused to vacate, the 
Authority brought an action for summary eviction in Sep­
tember, 1965, and prevailed. Actual eviction, however, was 
stayed during the pendency of the litigation. In 1967, be­
fore the Supreme Court decided the case, the Department 
of Housing and Urban Development issued a circular di­
recting that tenants must be given reasons for their evic­
tion. The Supreme Court held that housing authorities 
must apply the HUD circular “before evicting any tenant 
still residing in such projects on the date of this decision.” 
393 U.S. at 274. Relying on Peggy, it explained that “[t]he 
general rule . . .  is that an appellate court must apply the 
law in effect at the time it renders its decision,” although 
it recognized that “ [exceptions have been made to prevent 
manifest injustice. . . . ” 393 U.S. at 281-82.

The difference between Thorpe and Peggy is that the 
HUD circular did not indicate that it was to be applied 
to pending cases or to facts which had transpired prior 
to its issuance. Indeed, the circular stated that it was to 
apply “from this date” (the date of issuance). 393 U.S. 
at 272, n. 8. Thus, Thorpe held that even where the inter­
vening law does not explicitly or implicitly contemplate 
that it would be applied to pending cases, it, nevertheless, 
must be applied at the appellate level to decide the case. 
The line of cases from Peggy to Thorpe dictates the ap­
plication of § 718 in the instant ease, irrespective of legis-



69a

Opinion of United States Court of Appeals 
in Bradley Action

lative intent. Simply stated, since the law changed while 
the case (the lawyers’ fees issne) was still pending before 
us, the new law applies.

The School Board contends that Thorpe does not erase 
the long-standing rule of construction favoring prospec­
tive application. It argues that Thorpe did not present a 
retroactivity question since the tenant had not yet been 
evicted. It places great reliance on the “tenant still resid­
ing” language in the opinion. The School Board concludes 
that since the tenant had not yet been evicted, the HUD 
circular was not retroactively applied but was currently 
applied to a still pending eviction. With respect to the 
legal services in issue in the instant case, the Board argues 
that the Thorpe rule does not apply since the performance 
of legal services was a completed act prior to the effec­
tive date of § 718.

While the Board’s premise regarding the interpretation 
of Thorpe may not be faulted, its analogy is inapt and its 
conclusion incorrect. True, the rendition of legal services 
in the instant case had been completed (except for legal 
services on appeal), but the dispute over who was liable 
for payment was very much alive, as alive as the dispute 
over eviction in Thorpe. The proper analogy is not be­
tween rendition of legal services and the eviction litigation, 
but between rendition of legal services and the Housing 
Authority’s termination of the lease and notice to vacate. 
These are the completed acts. What lingers is the dispute 
over who is right, and it lingers in both cases. Therefore, 
as in Thorpe, here there is no retroactivity issue. Thorpe 
governs and §718 applies unless it is rendered inappli­
cable because one or more of its provisions has not been



70a

Opinion of United States Court of Appeals 
in Bradley Action

met. See Bassett v. Atlanta Independent School Dist. No. 
1550 (E.D. Tex. August 28, 1972).2

III.
Since Thorpe governs, legislative history is not relevant, 

unless it unequivocally shows an intention on the part of 
Congress that the statute not apply to live issues in cur­
rently pending cases. The legislative history of § 718 pro­
vides no such expression of intent. To the extent that it 
proves anything, it supports the conclusion that §718 
should apply to live issues in currently pending cases.

2 It must be recognized that there are some discordant notes in
the case law: In Soria v. Oxnard School Dist. Board, -----  F.2d
7 (9 Cir. August 21, 1972), it was held, in a per curiam opin­
ion, that § 803 of the Education Amendments of 1972, which post­
poned the effectiveness of busing orders for the purpose of achiev­
ing racial balance until all appeals have been exhausted, had no 
application to a case pending at the time of its effective date in 
which busing, pursuant to an integration plan, is already in opera­
tion. There is no mention, however, of Thorpe.

In Greene v. United States, 376 U.S. 149 (1964), the Court re­
fused to apply an intervening Department of Defense regulation 
to a pending^ case, reasoning in retroactivity language. But this 
case was obviously one where “retroactivity” would work “mani­
fest injustice.” See Thorpe, supra at 282 n. 43. Cases construing 
the Criminal Justice Act, 18 U.S.C.A. § 3006A (1970), which pro­
vides court-appointed attorneys with fees from federal funds have 
held that it applies only where counsel was appointed after the 
Act, or at least, only where counsel’s assistance was rendered after 
the Act. Compare United States v. Pope, 251 F.S. 331 (D. Neb. 
1966) with United States v. Dutsch, 357 F.2d 331 (4 Cir. 1966)); 
United States v. Thompson, 356 F.2d 216 (2 Cir. 1965) cert. den. 
384 U.S. 964 (1966); Dolan v. United States, 351 F.2d 671 (5 Cir. 
1965) (per curiam). But that Act involved expenditures of fed­
eral appropriations which, by the terms of the Act, would not be­
come effective until a year after enactment, so that it may be 
fairly said that there was a clear legislative intention not to make 
the terms of the Act applicable to pending cases.



71a,

Opinion of United States Court of Appeals 
in Bradley Action

Two clauses of § 718 bear on the issue. As originally 
proposed and reported, § 718 provided for a federal fund 
of $lo million from which counsel would be paid “for 
services rendered, and the costs incurred, after the date 
of enactment . . .” S. 683, § 11 (Quality Integrated Edu­
cation Act). The Senate Committee on Labor and Public 
Welfare reported the bill, with this clause intact, as § 1557. 
Sen. Eep. No. 92-61. 92nd Cong. 1st Sess. pp, 55-56.

The School Board places great stress on this language 
as indicating a strictly prospective legislative intent. It 
fails to point out, however, that the federal funding, as 
well as the “after the date” clause, were deleted by floor 
amendment prior to the passage of the Act, This floor 
amendment can be construed to indicate that Congress’ 
ultimate intent was indeed the opposite of that urged by 
the Board. The “after the date” clause and federal fund­
ing seem to have gone in tandem. Given the nature of 
federal appropriation, prospective application would be 
a sensible requirement. Compare Criminal Justice Act, 
18 TJ.S.C.A. § 3006A (1970). By the deletion of federal 
funding, the reason for restricting payment of attorneys’ 
fees for services performed after the date of enactment 
disappeared.

Secondly, the School Board points to the language in the 
committee report which refers to “additional efforts,” but 
the sentence is phrased in the conjunctive. It reads: “$15 
million is set aside for additional efforts under this bill 
and under Title I of the Elementary and Secondary Edu­
cation Act of 1965 * * # and for vigorous nation-wide en­
forcement of constitutional and statutory protection against 
all forms of discrimination” (emphasis added). Whether 
“additonal efforts” modifies everything that follows, or



72a

Opinion of United States Court of Appeals 
in Bradley Action

just what precedes the conjunction “and”, is debatable and 
a rather unenlightening inquiry.

Thus, nothing on the face of § 718, or in its legislative 
history, conclusively manifests a congressional desire that 
the Thorpe rule applying new legislation to live issues in 
pending litigation should not prevail. I turn to the ques­
tion of its precise application.

IV.
Section 718 empowers the court to award counsel fees 

“in its discretion, upon a finding that the proceedings 
were necessary to bring about compliance. . . The pri­
vate attorney general rule of Newman v. Piggie Park En­
terprises, 390 U.S. 400 (1968), governs the court’s discre­
tion. Under the Piggie Park standard, the court should 
award counsel fees “unless special circumstances would 
render such an award unjust.” 390 U.S. at 402. See Lea 
v. Cone Mills Corp., 438 F.2d 86 (4 Cir. 1971). The lan­
guage of § 718 is substantially similar to the counsel fee 
provisions in § 204(b) of Title II and §706(k) of Title 
VII of the Civil Eights Act of 1964, 42 U.S.C.A. §§ 2000a- 
3(b), 2000e-5(k), and § 812(c) of Title VIII of the Civil 
Eights Act of 1968, 42 U.S.C.A. § 3612(c), all of which 
are governed by Piggie Park. Moreover, the legislative 
history of § 718 reveals that its purpose is the same as 
the counsel fee provisions in Titles II, VII, and VIII. 
117 Cong. Eec. S. 5484, 5490 (Daily Ed. April 22, 1921) ; 
id. S. 5537 (Daily Ed. April 23, 1971). The additional 
standard in § 718 requiring the court to find that the suit 
was necessary to bring about compliance does not modify 
the Piggie Park standard, because its purpose, as re­
vealed by the legislative history, is to deter champertous



Opinion of United States Court of Appeals 
in Bradley Action

claims and the unnecesary protraction of litigation. 117 
Cong. Rec. S. 5485, 5490-91 (Daily Ed. April 22, 1971). 
In the instant case, the district court found that suit was 
necessary to bring about compliance and it also found, at 
least implicitly, that there were no exceptional circum­
stances which would render an award of counsel fees 
against the School Board unjust. These findings are not 
clearly erroneous and hence counsel are entitled to some 
allowance of fees under § 718 as construed by Piggie Parle.

V.
Although § 718 should be applied to legal services, when­

ever rendered, in connection with school litigation cul­
minating in an order entered after its effective date (July 
1, 1972), §718 will not support affirmance of the precise 
award made by the district court in this case. It would, 
however, support a larger award to compensate for legal 
services rendered over a longer period.

The district court’s award was for legal services ren­
dered from March 10, 1970, the date when plaintiff filed 
a motion for further relief because of the decisions in 
New Kent County, supra, Alexander, supra, and Carter, 
supra, to January 29, 1971, the date on which the district 
court declined to implement plaintiff’s plan. Manifestly, 
the entry of that order cannot support an award of coun­
sel fees for services to the date of its entry because the 
order did not grant relief to the parties seeking to re­
cover fees—a condition precedent to the award of fees as 
set forth in § 718. But, a recitation of the history of the 
litigation shows that counsel fees should be awarded for 
all legal services rendered from March 10, 1970 to April 5, 
1971, the date on which the district court entered an order



74a

Opinion of United States Court of Appeals 
in Bradley Action

approving the plan under which the Richmond schools are 
presently being operated, and thereafter for legal services 
rendered in this appeal.

The essential dates in the history of the litigation fol­
low : The motion for further relief was filed March 10, 
1970. Appended thereto was an application for an award 
of reasonable attorneys’ fees. After admitting that its 
schools were not then being constitutionally operated, the 
Board filed a plan (Plan 1) to bring the operation of the 
schools into compliance with the Constitution. After hear­
ings, the district court disapproved Plan 1 (June 26, 1970) 
and directed the preparation and filing of a new plan. 
Plan 2 was filed July 23, 1970, and hearings were held on 
it. It, too, was disapproved as an inadequate long-range 
solution. But, because there was insufficient time to pre­
pare, file and consider another plan before the beginning 
of the next school term, Plan 2 was ordered into effect on 
August 17, 1970, for the term commencing August 30, 1970, 
and the Board was also ordered to make a new submission. 
The Board appealed from the order implementing Plan 2 
and obtained a delay in briefing from this court. The 
appeal was never heard, because, having been effectively 
stayed, it was rendered moot by later orders. Before Plan 
3 was filed, plaintiffs sought further relief for the second 
semester of the 1970-71 school year, but Plan 3 was filed 
(January 15, 1971) before they could be heard and their 
motion was denied on January 29, 1971, the terminal date 
for the allowance cf compensation in the order appealed 
from. Plan 3 contained three parts—it was a restatement 
of Plans 1 and 2, and it contained a new third proposal. 
The Board urged the adoption of the Plan 2 aspect of 
Plan 3; but, on April 5, 1971, the district court ordered



75a

Opinion of United States Court of Appeals 
in Bradley Action

into effect for the 1971-72 school year the new third pro­
posal. This is the plan under which the Richmond schools 
are presently operating.3

To this summary there need only be added that on 
August 17, 1970, the district court ordered the parties to 
confer on the subject of counsel fees. Plaintiffs filed on 
March 5, 1971, a memorandum in support of their request 
for an allowance; the court, on March 10, 1971, ordered 
that further memoranda and evidentiary materials with 
regard to the motion for counsel fees be filed; and these 
were filed on March 15, 1971. The order directing the 
payment of counsel fees was entered May 26, 1971, after 
the entry of the order approving and implementing Plan 3.

The majority concludes that § 718 was rendered inappli­
cable because the order appealed from was entered May 
26, 1971, a date on which there was no “final order” entered 
as “necessary to secure compliance.” This conclusion 
seems to me to be overly technical and not in accord 
with the facts.

The request for counsel fees was made when the motion 
for additional relief was filed on March 10, 1970. While 
very much alive throughout the proceedings, properly, the 
motion was not considered until the district court could 
approve a plan for a unitary system of schools for Rich­
mond which was other than an interim plan. That approval 
was forthcoming on April 5, 1971, and promptly there­
after the district court addressed itself to the question of

3 Of course, there were even still further proceedings culminating 
in an order to consolidate the Richmond, Henrico County and 
Chesterfield School Districts, hut this court set that order aside 
m Bradley v. The School Board of the City of Richmond, Virginia,
T---- F.2d -----  (4 Cir. June 5, 1972), application for cert.”filed
October —, 1972.



76a

Opinion of United States Court of Appeals 
in Bradley Action

allowance of counsel fees. The approval of a permanent 
plan was not easily arrived at. Because the proposals of 
the Richmond School Board were constitutionally unac­
ceptable, except on an interim basis, this approval was 
arrived at in several steps: (a) disapproval of Plan 1, 
(b) interim approval of Plan 2, (c) disapproval of addi­
tional interim relief, and (d) approval of Plan 3.

Certainly, § 718 is not to be so strictly construed that 
any counsel fees allowable thereunder must be allowed the 
very instant that an order granting interim or permanent 
relief is entered. A request for fees may present diffi­
cult questions of fact and require the taking of evidence. 
The burden of deciding these questions should not be 
added to the simultaneous burden of deciding the often 
very complex question of what is a constitutionally ac­
ceptable desegregation plan; rather, the issues should be 
severed and the question of counsel fees decided later so 
long as the issue of counsel fees had been present through­
out the litigation and has not been raised as an after­
thought after the school desegregation plan has become 
final. These practical considerations, plus the fact that 
every stage in the proceedings has been a part of an over­
all transition from unconstitutionally operated schools in 
Richmond to constitutionally operated schools, lead me to 
the conclusion that the exact terms and conditions of § 718 
have in the main been met.

While I therefore conclude that there was a sufficient 
nexus between the request for counsel fees and the entry 
of a final order necessary to obtain compliance with the 
Constitution so as to warrant invoking § 718, I  think that 
§718 requires that the district court redetermine the al­
lowance. As previously stated, the district court made an



77a

Opinion of United States Court of Appeals 
in Bradley Action

allowance for services to the date that plaintiffs’ request 
for additional interim relief was denied. If the various 
steps for arriving at an overall desegregation plan for 
Richmond are severed, § 718 would not permit an allow­
ance for services leading to the order of January 29, 1971, 
since on that date plaintiffs were denied the additional 
interim relief they prayed and § 718 permits an allowance 
only to the prevailing party. However, plaintiffs would 
be entitled to an allowance for services beyond January 
29, 1971, up to April 5, 1971, the date of approval of 
Plan 3, because on that date they became the prevailing 
party and they obtained an order, still in effect, which re­
quired the schools of Richmond to be operated agreeably 
to the Constitution. I would therefore vacate the judg­
ment and remand the case for a redetermination of the 
amount of the allowance—in short, I would require that 
counsel be compensated for their services to and including 
April 5, 1971 and also their services on appeal in this case.



78a

Opinion o f  United States Court o f Appeals 
in  T h o m p s o n  Action

I n  t h e

U n it e d  S tates C ourt of A ppea ls  

F or t h e  F o u r t h  C ir c u it

Nos. 71-2032 and 71-2033 
F r a n k  Y . T h o m p s o n , et al.,

Appellants,
y .

S chool  B oard of t h e  C it y  of N ew po rt  N e w s , et al.,

Appellees.

Nos. 71-1993 and 71-1994 
M ic h a e l  C opela n d , et al.,

v.
Appellants,

S chool  B oard of t h e  C it y  of P o r tsm o u th , et al.,
Appellees.

No. 72-1065
N a t h a n ie l  J a m es , et al.,

Appellees,
v .

B ea u fo rt  C o u n ty  B oard of E d u ca tio n ,

Appellant.

(Decided November 29, 1972)



79a

Opinion of United States Court of Appeals 
in Thompson Action

Before
H a y n sw o r th , Chief Judge,

W in t e r , C raven , B u r z n e r , R u sse l l  a n d  F ie l d ,
Circuit Judges, sitting en banc.

P er  C u r ia m  :

We ordered en banc consideration of lawyer fee claims 
in these school cases to consider the extent of the ap­
plicability of § 718 of the Emergency School Aid Act of 
1972. In the City of Portsmouth and the Beaufort County 
cases, however, apparently adequate fees are allowable on 
other bases. The precise extent of the reach of § 718 in 
those cases, therefore, now appears academic.

In the Newport News case, most of the legal services 
are yet to be rendered, and we are unanimously of the 
view that, if relief is granted, fees will be allowable under 
§ 718 for those future services. The division within the 
Court as to the application of § 718 will have some bearing 
upon any ultimate allowance of fees in that ease, though 
less than was supposed when reargument was requested.

The Court is unanimously of the view that it should 
apply § 718 to any case pending before it after the Sec­
tion’s enactment. This is consistent with the principle of 
United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 
most recently enunciated in the Supreme Court in Thorpe 
v. Housing Authority of Durham, 393 U.S. 268.

A majority of the Court, however, is of the view that 
only legal services rendered after the effective date of 
§ 718 are compensable under it. Those members of the 
Court invoke the principle that legislation is not to be 
given retrospective effect to prior events unless Congress 
has clearly indicated an intention to have the statute ap­
plied in that manner. They do not find such an intention



80a

Opinion of United States Court of Appeals 
in Thompson Action

from the omission of a provision in an earlier draft ex­
pressly limiting its application to services rendered after 
its enactment, when the earlier draft was extensively re­
vised and there is no affirmative expression by any member 
of Congress of an intention that it should be applied to 
services rendered prior to its enactment.

A minority of the Court would apply § 718 to legal 
services, whenever rendered, in connection with school liti­
gation culminating in an order entered after June 30, 
1972. In their view, someone must pay the fee, and a 
statutory placement of the burden of payment on school 
boards is not a retroactive application of the statute, though 
some of the services may have been rendered before its 
enactment as long as an order awarding relief, the fruit of 
the services, is entered afterwards.

The eases will be remanded for such further proceedings 
in the District Court as may be necessary in accordance 
with the views of the majority, applying § 718, when it 
may otherwise be applicable, only to services rendered 
after June 30, 1972.*

In the Portsmouth case, the District Court will award 
reasonable attorneys’ fees on the principle of Brewer v. 
The School Board of the City of Norfolk, 4 Cir., 456 F.2d 
943 (1972). In the Beaufort County case, the award here­
tofore made by the District Court is approved.

Remanded.

* In the Newport News case, on a completely different basis, the 
District Court made an award of attorneys’ fees of $750.00 in 
connection with services and events occurring before June 30, 1972. 
Since that award was not dependent upon § 718, nothing we say 
here should be construed to disturb it.



81a

Opinion of United States Court of Appeals 
in Thompson Action

W in t e r , Circuit Judge, c o n c u r r in g  s p e c ia l ly :

1 concur in the judgment of the court to the extent that it 
directs the allowance of attorneys fees in the City of 
Portsmouth, Beaufort County and Newport News cases. 
For the reasons set forth in my separate opinion in Bradley
v. School Board of Richmond,----- F.2d —— (4 Cir., No.
71-1774, decided ), I would direct the
allowance in all three cases on the basis that § 718 of the 
Emergency School Aid Act of 1972 applies to legal services 
rendered before the effective date of that enactment in 
cases pending on that date.



MEILEN PRESS INC. — N. Y. C. 219