Bradley v. School Board of the City of Richmond Brief

    % n ik < j  v-

8

fOj^kuMt-

quate under the Fourth Circuit’s decision in Swami v. 
Chadotte-Mecldenburg Board of Education, 431 F d lo, 
(1970) The District Court clearly had the discie ion o 
award counsel fees to plaintiffs for legal services rendered 
in opposing these two plain.

argument

I.
Section  7 1 8  o f  the E m ergency School Aid Act o f  

1 9 7 2  R equ ires the Award o f  A ttorneys’ Fees m  T his

Case.

While this case was pending before the Court of Appeals, 
Congress enacted the Emergency School Aid Act of 19(2. 
Section 718 of that Act provides:

Upon the entry of a final order by a court of the United 
States against a local educational agency, a State (oi 
anv agencv thereof), or the United States (or am 
agency thereof), for failure to comply with any pio- 
vision 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. o • the fourteenth 
amendment to the Constitution of the United States as 
they pertain to elementary and secondary education, 
the court in its discretion, upon a finding that the 
proceedings w ere necessary to bring about compliance.

3 This development was brought to the court’s attention but the 
Fourth C i r c u i t e d  that section 718

heldthaTtlun-c1w aTnoW  Judgment to‘which the award of fees 
16 i i  i „ , n  87 a 188a') In  a companion case. Tliompsor

held that section 718 omy aiulw ri, U lega. fee 
the effective date of the statute, -July 1, l 9 ' -

«)

may allow the prevailing party, other than the United 
States, a reasonable attorney’s fee as part of the costs

Section 718 is applicable to the instant case, and requires 
the award of attorneys’ fees.

This Court has already held that, in cases falling under 
Section 718, the successful plaintiff “should ordinarily re­
cover an attorney’s fee unless special circumstances would 
render such an award unjust." Northcross v. Bor'd oi 
Education of the Memphis City Schools, 41 U.S.L.A. 
3635 (1973) ; compare Newman v. Biggie Park Enterprises, 
Inc., 390 U.S. 400 (1968). Xo such special circumstances 
are present in the instant case. The District Court ex 
presslv inquired whether there wrere special circumstances 
which might render an award unjust, citing the standard 
in Newman, and found there were not. 140a. T1- < '■•urt rf 
Appeals noted that the award of attorneys’ tV 
Newman standard were “either mandatory or practically 
so,” 183a, but did not expressly decide whether the A ewman 
standard had been met. The only circumstance in this case 
wdiich the Court of Appeals felt militated again-t legal 
fees was its conclusion that, in view of the alleged uncer­
tainty as to the constitutional requirements, the various 
defenses and plans put forward b; the school board, though 
legally insufficient, were not advanced for purposes of 
delay or in bad faith. 177a. Such good faith, however, has 
been expressly held not to fall within the narrow category 
of special circumstances permitting the denial attorney 
fees in these cases. Newman v. Biggie Bari. I n*i>rpi s e ­

ine., 390 U.S. 400, 401 (1968). There is of course no ques­
tion that the instant action was necessary to bring about 
compliance. The school board was in violation -f the DU 
trict Court’s 1966 decree and of the decisions of this Court, 
and made no pretense that it would change its wavs other 
than under court order.



10

Section 718 further requires that legal fees may be 
awarded “upon the entry” of a final order against a de­
fendant school board based on a violation of the Fourteenth 
Amendment or certain statutes. The quoted phrase does 
not require, of course, that the award of legal fees be 
simultaneous with the entry of such an order, but makes 
the existence of such a final order a prerequisite to the 
award of attorneys’ fees. Several such orders had been 
entered and became final prior to the award of attorneys’ 
fees in this case on May 26, 1971.4 Where, as here, the 
course of litigation in a district court involves the entry 
of several orders over a period of months or years, neither 
section 718 nor sound judicial administration require that 
the question of legal fees be litigated separately and repe- 
titiously upon the occasion of each such order. A request 
for fees may present difficult questions of fact or require 
tm- :ai.nig of evidence which might interfere with a court’s 
simultaneous efforts to dismantle a dual school system. 
Costs, of which attorneys’ fees are made a part by section 
718, are normally imposed after the final disposition of 
the case. Doubtless a District Court has discretion to 
award costs and attorneys’ fees incident to the disposition 
of interim lelief matters, 6 Moore’s Federal Practice 
TJ54. /0 T5], and it would be particularly desirable to exercise 
that discretion where, as is common in litigation under 
Brown, the fashioning of effective relief occurs over a 
period of years and delay in awarding fees and costs may 
work hardship on plaintiffs or their counsel. That discre-

On June 20, 1970, the District Court ordered a suspension of 
all school construction in Richmond pending the approval of a 
final plan. On August 17, 1970. the District Court ordered into 
operation an interim plan for the 1970-71 school year. On April 5, 
1971. Me District Court ordered into operation the plan under 
which the Richmond schools are now operating. Each of these 
orders had become final when the attorneys’ fees were awarded on 
May 26, 1970.

11

tion, however, exists for the protection of the plaintiff and 
his attorney; a defendant cannot be heard to complain if 
it is not so exercised.5

The defendant school board maintains, however, that 
section 718 should not be applied to the instant case because 
the legal services for which fees are sought were rendered 
piioi to July 1, 1972, the date on which section 718 became 
effective.6 'Plaintiffs contend that section 718 should be 
applied to any case in which the propriety of an award 
of legal fees was still pending resolution on appeal as of 
July 1, 1972, regardless of when the services were per- 
foimed. This case does not present the question of whether 
section 718 should be applied, retroactively, to cases in 
v hich the question of legal fees had been presented and 
been resolved by a final order prior to July 1, 1972.

Since United States v. Schooner Peggy, this Court has 
i ecognized that “if, subsequent to the judgment, and before 
the decision of (he appellate court, a law intervenes and 
positively changes the rule which governs, the law must 
be obeyed, or its obligation denied.” 5 U.S. (1 Cranch) 103,

D The Court of Appeals refused to apply section 718 to the in­
stant case on the ground, inter alia, that on the effective date of 
the Act there was no final order regarding the substantive claim 
qt discrimination pending on appeal (187a-188a). This standard, 
m the sense it was used, could never be met, for no order could 
be both final and also pending on appeal. If, as plaintiffs contend, 
section 718 should apply to services performed prior to July 1 
1<<2. there is no precedent for requiring that such fees be arbi­
trarily denied because of the date on which an order was entered 
directing the desegregation of a defendant school district.

6 The date on which a law becomes effective is not the same 
thing as the date from which the law shall apply. The former date 
describes the time at which the courts will begin to invoke the 
law in dealing with events or transactions; the latter date delimits 
the class of events or transactions as to which that law may be 
invoked. For an example of a statute specifying both effective 
hate and the transactions to which it applied, see section 104 of 
the Jury .Selection Act of 1968, Pub L 90-274



12

106 (1801). This Court has applied on appeal intervening 
changes in the law under a wide variety of circumstances. 
In Thorpe v. Housing Authority of Durham, 393 U.S. 268 
(1969), after the plaintiff public housing authority had 
won an eviction order in state courts, the Department of 
Housing and I  rban Development altered the procedural 
prerequisites to such evictions. This Court held that the 
defendant could not be evicted unless the new procedures 
were followed. “The general rule . . .  is that an appellate 
coui t must apply the law in effect at the time it renders 
its decision.” 393 U.S. at 281. In United States v. Alabama, 
362 U.S. 602 (I960), the district court dismissed an action 
brought by the United States under the 1957 Civil Rights 
Act against the state of Alabama on the ground that the 
State could not be sued under that statute. While the case 
was pending on appeal Congress passed the 1960 Civil 

A,-t expressly authorizing suits against a state, and 
tin.- Court applied the new statute. “Under familiar prin­
ciples, the case must be decided on the basis of law now 
controlling, and the [new provisions] are applicable to this 
litigation.” 362 U.S. at 604. In Ziffrin v. United States, 
after a company seeking permission to operate as a con­
tract carrier had filed its application with the Interstate 
Commerce Commission, the Interstate Commerce Act was 
amended to bar such operation by an applicant who was 
controlled by a common carrier serving the same territory. 
This Court upheld the application of the new law to the 
pending request. “A change in the law between a nisi prius 
and an appellate decision requires the appellate court to 
apply the changed law. A fortiori, a change of law pending 
an administrative hearing must be followed in relation to 
permission for future acts.” 318 U.S. 73, 78 (1943). See 
also Vanderhark v. Owens-Illinois Glass Company, 311 U.S. 
538 (1941); Carpenter v. Wabash Raihvay Co., 309 U.S. 23, 
27 (1940), and cases cited; American Steel Foundries v.

13

Tri-City Cent. Trades Council, 257 U.S. 184, 201 (1921); 
Reynolds v. United States, 292 U.S. 443, 449 (1934).

Except where the statute involved expressly purports 
to be of exclusively prospective application, see e.g. Gold­
stein v. California, 41 U.S.L.W. 4829, 4830 (1973), this 
Court has routinely applied new laws to all cases pending 
on appeal, v ithout reference to legislative history and 
without rerfuiring express statutory language that they be 
so applied. When Congress has concluded that greater 
justice would be done if a new and different legal principle 
were applied to some recurring circumstances, Congress 
must be presumed to have intended that that new standard 
and .the more equitable result entailed be applied to all 
eases, including those pending on appeal. Compare John­
son v. United States, 163 F.2d 30, 32 (1st Cir. 1908) 
(Holmes, J.).

A narrowly drawn exception to this practice has been 
sanctioned by this Court where, under the facts of a par­
ticular case, application of a new law to a matter arising 
before its enactment would work an unfair hardship on one 
of the parties. In such a situation this Court has, where 
possible, sought to construe the statute to avoid such an 
inequitable result. The precise category of cases to which 
this exception applies has never been clearly defined. In 
United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103 
(1801), this Court urged such a rule of construction “in 
mere private cases between individuals.” 5 U.S. at 106. 
In Union Pacific Railroad Co. v. Laramie Stock Yards Co., 
this Court explained the rule applied to statutes which 
might interfere with “antecedent rights,” 231 U.S. 190, 
199 (1913). Cox v. Hart defined a “retroactive” statute as 
one which impaired a vested right or imposed a new obli­
gation on a private interest, and indicated that statutes 
should not readih lie construed as “retroactive” in this



14

sense. 260 TJ.S. 427, 435 (1922). In Claridge Apartments 
Co. v. Commissioner, 323 U.S. 141 (1944), the Court de­
liberately construed a new tax law so as not to retroac­
tively increase the taxes on “closed transactions.” 323 U.S. 
at 164. In Greene v. United States, 376 U.S. 149 (1963), 
this Court refused to apply new and more strenuous ad­
ministrative procedures for obtaining remuneration to a 
claimant who had already obtained a “final” and favorable 
determination under the old procedures. 376 U.S. at 161. 
Most recently, in Thorpe v. Housing Authority of Durham, 
this Court characterized Greene and its predecessors, more 
simply and more cogently, as exceptions “made to prevent 
manifest injustice.” 393 U.S. at 282.7

The application of section 718 to the instant case would 
work no injustice such as that threatened in Greene. Sec- 

18 did not alter the defendant school board’s consti- 
tiiimnal responsibility to provide an education free of the

' The difference between the rule reaffirmed in Thorpe and the 
exception applied in Greene is well illustrated by the facts in those 
cases. Both <-ases involved disputes between a private citizen and 
a government agency. In Thorpe a city public housing authority 
had sued to evict the defendant tenant; in Greene a private citizen 
who had been discharged when the Department of the Navy re­
voked his security clearance brought an action for lost wages. 
In both, while the litigation was still pending and before Mr. 
Greene had received reimbursement or Mrs. Thorpe been evicted, 
the procedures for reimbursement and eviction, respectively, were 
changed. However, in Thorpe the application of the new rule 
accrued to the benefit of the private citizen, whereas in Greene 
this Court refused to apply the change where the beneficiary would 
have been the government not the individual litigant. In Greene 
the application of the new rule would have interfered with a right 
to reimbursement which had been established and became final, 
37G U.S. at 161; in Thorpe the Housing Authority had no com­
parable rights to infringe, 393 U.S. at 283. And, while in Thorpe 
the tenant had insisted throughout the litigation that she was 
entitled to procedural protections guaranteed b}r the new provision, 
in Greene the government had never questioned the procedures 
H ing followed until seven years after the litigation began, those 
procedures were altered by administrative regulations. Compare 
Citizens to Preserve Overton Park v. Volpe, 401 U S 402 418- 
419 (.19711.

15

stigma of segregation, and plaintiffs do not seek to apply 
retrospectively any new standard of conduct first estab­
lished in 1972. The school board’s substantive obligations 
are those of the Constitution, as announced by this Court; 
section 718 only elaborates the remedy available to a pri­
vate citizen when local officials have violated the law. As
Senator Cook remarked during the debate on section 718: \

The 14th amendment to the Constitution of the 
United States was there long before we [Congress] 
came to a conclusion that something should be done 
in the field of discrimination in the school system of 
the United States. We are not talking about some­
thing that was born yesterday.8

The school board in the instant case does not claim it would 
have acted any differently between 1966 and 1972 had sec­
tion 718 been in effect at that time. Under such circum­
stances;' the application of section 718 to litigation occur­
ring before its effective date can hardly be said to be 
unfair. The only relevant right which existed prior to the 
enactment of section 718 was the right of the instant plain­
tiffs to an education in a unitary school system; applica­
tion of section 718 to this case serves not to impair that 
right but to vindicate it. Plaintiffs’ assertion that they are 
entitled to attorneys’ fees is not a new claim suddenly 
asserted in the light of section 718; such fees were asked 
in the original complaint filed in 1961,9 and have repeatedly 
been sought in the proceedings since that time.

That legal fees should be awarded under section 718 for 
work done before its effective date is supported by the

” 117 Cong. R pc 11528. 
9 See 4a.



16

legislative history of the Emergency School Aid Act of 
1972.10

Section 718 grew out of a provision contained in a 
bill sponsored by Senator Mondale in 1971. The statute 
proposed by Senator Mondale would have authorized the 
payment of counsel fees out of federal funds specially 
set aside for that purpose, $5 million for the first year 
and $10 million for the second. That proposal, included 
in the committee bill presented to the Senate, expressly 
stated that the award would be “for services rendered, and 
costs incurred, after the date of the enactment of this 
Act . . .”n (Emphasis added) On the floor of the Senate,

10 The predecessor to section 718 was first proposed by Senator 
Mondale. S. 683, 92nd Cong., 1st Sess., §11. It was reported out 
of committee as section 11 of S.1557. See Sen. Rep. No. 92-61, 
12116 ( ug.. 1st Sess. On April 21, 1971, at the urging of Senators 
I)":.1:1 irk and Cook, section 11 was stricken from the proposed 
bill. 117 Cong. Rec. 11338-11345. The next day, on an amendment 
sponsored by Senator Cook, section 718 in its present form was 
inserted in the bill. 117 Cong. Rec. 11521-11529, 11724-26. The 
House amended the bill passed by the Senate, striking everything 
after the enacting clause and inserting a new text which, inter aim, 
deleted any mention of counsel fees. The provision for legal fees 
was restored in conference. Conference Rep. No. 798, 92nd Cong., 
2nd Sess. (1972). The only debate on the subject of attorneys’ 
fees occurred in the Senate on April 21 and 22, 1971.

11 Section 11(a) of Senator Mondale’s bill, S.683, 92nd Cong., 
1st Sess., provided in fu ll:

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 Department of Health, Education, and Wel­
fare for failure to comply with any provision of this Act, 
title I of the Elementary and Secondary Education Act of 
1965 or discrimination on the basis of race, color, or national 
origin in violation of title VI of the Civil Rights Act of 1964, 
or of the fourteenth article of amendment to the Constitution 
of the United States as they pertain to elementary and sec­
ondary education, such court shall award, from funds reserved 
pursuant to section 3 (b )(1 )(e ), reasonable counsel fee, and 
costs not otherwise reimbursed, for services rendered, and

17

Senator Dominick, with the support of Senator Cook, suc­
cessfully amended the bill to delete this proposed section 
in its entirety.12 The next day, however, Senator Cook 
proposed to substitute new provisions authorizing the 
award of such attorneys’ fees against the defendant.13 
This new provision deleted the language in Senator Mon­
dale’s version which had limited the section to services 
rendered after its enactment. This Court should not read 
back into section 718 the very limitation regarding appli­
cation to services performed prior to enactment which was 
deliberately removed from the statute by Congress.

The application of section 718 to cases pending when it 
was enacted serves to carry out the purposes of that pro­
vision ,as expressed in the congressional hearings and 
debates leading to its enactment. Senator Mondale, who 
first urged a statutory authorization of legal fees in these 
cases, argued that his proposal and that of Senator Cook 
were needed to encourage more private litigation,14 and to 
equalize the legal resources available to litigants in such 
cases.15 If, however, such fees are only awarded for work 
done after July 1, 1972, and after the entry of a final order 
resulting from and subsequent to those services, substantial 
additional funds under this section for the increase of

costs incurred, after the date of enactment of this Act to the 
party obtaining such order.

Similarly, the Committee Report states that the federal funds 
are available “for services rendered, and costs incurred, after the 
date of enactment of the Act,” Sen. Rep. No. 92-61, 92nd Cong., 
1st Sess., pp. 55-56 (1971).

12117 Cong. Rec. 11345.
13117 Cong. Rec. 11520-21.
14114 Cong. Rec. 10760, 10761, 10762-3. 10764, 11339-40, 11343, 

11344, 11345.
'J Hearings Before the Subcommittee on Education of the Senate 

Labor and Public Welfare Committee, 92nd Cong., 1st Sess. 99 
(1971); 114 Cong. Rec. 10762.



18

private litigation will not be available for years.16 It is 
hardly likely that Senator Mondale envisioned or desired 
such a delay when he called for a statutory right to legal 
fees to meet the “urgent need” for vigorous private litiga- | 
tion to resolve the “major crisis in the enforcement of con­
stitutional protections affecting civil rights in this land.”17

Senator Cook, the draftsman and sole spokesman for 
section 71S as finally enacted, emphasized an additional 
reason for his amendment. Senator Cook opposed Senator 
Mondale’s proposal on the ground that it failed to require 
that the school system which had violated the law pay the 
costs incurred in rectifying that violation. He urged:

[M ]e can solve the problem by merely inserting the | 
language that the costs and attorneys’ fees will be

nraetieal realities of school litigation are such that the 
-hit by Senator Mondale will be substantially delayed if 

attorneys fees are not awarded for services performed prior to the 
effective date of the statute. The vast majority of school deseg­
regation cases have in the past been, and will continue to be, 
brought by a handful of private attorneys supported in many in­
stances by national organizations concerned with such litigation.
The costs and salaries of the attorneys must be paid by those 
organizations or sacrificed by those attorneys from the moment a 
case is begun, but such costs and fees are only available under 
section 718 after a final judgment has been entered in the case.
The delay between the commencement of an action and the entry 
of any final judgment will often be substantial. In the cases de- ’ 
eided sub nom. Thompson v. School Board of the City of Newport 
hews, 472 F.2d 177 (1972), in which the Fourth Circuit refused to 
apply section 718 to work done before its effective date, the com­
plaints initiating those actions had first been filed in 196l( 1965,
1969 and 19/0. If  section 718 is limited to work done after ju lv  l ’
1972, it will be years before that statute yields sufficient legal fees 
to enable private attorneys and their organizational sponsors to 
increase the number of school desegregation cases they are finan­
cially able to handle. On the other hand, if such fees are made 
available now in appropriate pending cases for work done before 
July 1. 1972, the resources will be available at once to make pos­
sible the increase in such litigation sought by Congress.

17 117 Cong. Rec. 10760, 10762. See also 117 Cong. Rec. 11339 
11342, 11343, 11344.

19

charged against the losing litigant. . . . We can even 
charge those expenses and make them a debt against 
the Title I funds, so that we are penalizing the person 
who violates the law; tve are penalizing the person 
who decides the 14th amendment is for someone else 
and not for him. We are then imposing the cost on 
that individual who saiv fit to commit an act that the 
court concluded was in violation of the law, or in viola­
tion of the proper utilization of Title I funds and 
that, as an indirect result thereof, that person shall 
suffer.18

In the debates on his own amendment, Senator Cook re­
iterated his desire to place the cost of litigation on the 
“guilty party”,19 to assure that a school board violating the 
law will “pay for it”,20 and to provide that those who have 
disobeyed the constitution “should have to make recom­
pense for that mistake.” 21 Senator Cook also referred, as 
had Senator Mondale,22 to the inequity of paying with edu­
cation funds for the lawyers who unsuccessfully opposed 
integration, but not using those funds for attorneys who 
achieved an end to segregation.23

1S117 Cong. Rec. 11343 (Emphasis added). See also 117 Cone 
Rec. 11341, 11342.

19117 Cong. Rec. 11725.
20117 Cong. Rec. 11527.
21 117 Cong. Rec. 11528.

22 Hearings Before the Subcommittee on Education of the Senate 
Labor and Public Welfare Committee, 92nd Cong., 1st Sess. 99 
(1971) “Now, most of the money today being spent publicly 
m school desegregation cases is public money which is being spent 
for lawyers and legal fees to resist the reach of the 14th amend­
ment, So why would it not be fair to set aside a modest amount to 
pay lawyers who are successful in enforcing the Constitution for 
legal fees and costs.”

23117 Cong. Rec. 11527, 11528.



20

It is reasonable to assume that Congress contemplated 
that the injustices discerned by Senator Cook would be 
righted in cases still pending when section 718 became 
effective. It cannot plausibly be maintained that Senator 
Cook intended that, months or years after the enactment 
of section 718, school boards which had violated the law 
would be able to avoid recompensing those who corrected 
their mistakes merely because the plaintiffs’ attorneys were 
diligent enough to bring that violation to an end prior to 
July 1,1972.21 The statute involved here is not one intended 
merely to shape future events by encouraging.the initiation 
of litigation under the Fourteenth Amendment, compare 
Linkletter v. Walker. 381 U.S. 618 (1965), but was designed 
to effectuate Congress’ judgment that a serious injustice 
is worked when, in a case such as this, the offending school 
board pays no price for its years of ignoring Brou n, while 

"svate plaintiff must look to himself and the generosity 
ol his counsel or the public to meet the costs of enforcingO
the constitution. Compare Jackson v. Denno, 378 U.S. 368 
(1964). In deciding who shall ultimately bear the cost of 
litigation to end discrimination in the public schools, this

-4 Both Senator Mondale and Senator Cook explained that their 
"oal was to provide the same right to attorneys’ fees in school 
discrimination cases as exist for discrimination in housing. 42 
U.S.C. §3G 12(c), in employment, 42 U.S.C. $2000e-5(A), and^pub- 
hc accommodations, 42 U.S.C. §2000a-e(b). 117 Cong. Rec. 11339. 
(Remarks of Senator Mondale), 11521 (Remarks of Senator Cook) 
See North cross x. Board of Education of the Memphis City Schools, 
41 L.S.L.W. 3635 (1973). In the absence of special circumstances, 
a successful plaintiff in a housing, employment or public accom­
modations case would be entitled to attorneys’ fees for all the legal 
services performed in connection with a ease won on April 5, 1972 
(the day final relief was awarded here) or July 1, 1972 (the day 
section 718 became effective). Because the substantive rights and 
counsel fee provisions were created by the same statute, sections 
2000a-3(b), 2000e-5(k) and 3612(c), 42 U.S.C., apply to all actions 
described therein, regardless of when commenced. Congress pre­
sumably intended to create a similarly broad right covering all 
work done in all school cases.

21

Court should give full effect to the standards and values 
established by Congress in section 718 in all cases in which 
the question of attorneys’ fees has not been finally resolved 
before July 1, 1972.

II.

A ttorneys’ Fees Must Be Awarded Because This 
Litigation B enefited  O lliers.

In the absence of an express statutory requirement of 
attorneys’ fees, federal courts in the exercise of their 
equitable powers may award such fees where the interests 
of justice so require. Their authority to do so derives 
from Article I I I25 of the Constitution and, in cases such 
as this, section 1983, 42 U.S.C.26 As Justice Frankfurter 
noted a generation ago, the power to award such fees “is 
part of the original authority of the chancellor to do equity 
in a particular situation.” Sprague v. Ticonic National 
Bank, 307 U.S. 161, 166 (1939). Federal courts do not 
hesitate to exercise this inherent equitable power wherever 
“overriding considerations indicate the need for such a 
recovery.” Mills v. Electric Auto-Lite Co., 396 U.S. 375, 
391-92 (1970).

One well-established case in which such fees are awarded 
is where a plaintiff’s successful litigation confers “a sub­
stantial benefit on the members of an ascertainable class,” 
and where the court’s jurisdiction over the subject matter 
of the suit makes possible an award that will operate to 
spread the costs proportionately among them. Mills v.

25 “Section 2. -Jurisdiction. The judicial power shall extend to all 
Cases, in law and Equity, arising under this Constitution, the Laws 
of the United States, and Treaties made . . .” (Emphasis added.)

26 Section 1983 authorizes “an action at law, suit in equity, or 
other proper proceeding for redress.” (Emphasis added.)



^6 <£>-** . U/A . (, A>-<- ^ ^  ^