Bradley v. School Bd. of RichmondAnnotate this Case
416 U.S. 696 (1974)
U.S. Supreme Court
Bradley v. School Bd. of Richmond, 416 U.S. 696 (1974)
Bradley v. School Board of the City of Richmond
Argued December 5, 1973
Decided May 15, 1974
416 U.S. 696
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
The District Court on May 26, 1971, awarded to the successful plaintiff petitioners, Negro parents and guardians, in this protracted litigation involving the desegregation of the Richmond, Virginia, public schools, expenses and attorneys' fees for services rendered from March 10, 1970, to January 29, 1971. On March 10, 1970, petitioners had moved in the District Court for additional relief under Green v. County School Board of New Kent County,391 U. S. 430, in which this Court held that a freedom of choice plan (like the one previously approved for the Richmond schools) was not acceptable where methods promising speedier and more effective conversion to a unitary school system were reasonably available. Respondent School Board then conceded that the plan under which it had been operating was not constitutional. After considering a series of alternative and interim plans, the District Court on April 5, 1971, approved the Board's third proposed plan, and the order allowing fees followed shortly thereafter. Noting the absence of any explicit statutory authorization for such an award in this type of case, the court predicated its ruling on the grounds (1) that actions taken and defenses made by the School Board during the relevant period resulted in an unreasonable delay in desegregation of the schools, causing petitioners to incur substantial expenditures to secure their constitutional rights, and (2) that plaintiffs in actions of this kind were acting as "private attorneys general," Newman v. Piggie Park Enterprises, Inc.,390 U. S. 400, 390 U. S. 402, in leading the School Board into compliance with the law, thus effectuating the constitutional guarantees of nondiscrimination. The Court of Appeals reversed, stressing that,
"if such awards are to be made to promote the public policy expressed in legislative action, they should be authorized by Congress, and not by the courts."
Following initial submission of the case to the Court of Appeals, but before its decision, Congress enacted § 718 of the Education Amendments of 1972, which granted a federal court authority to award the prevailing party a
reasonable attorney's fee when appropriate upon entry of a final order in a school desegregation case, the applicability of which to this and other litigation the court then considered. In the other cases, the court held that § 718 did not apply to services rendered prior to July 1, 1972, the effective date of § 718, and, in this case, reasoned that there were no orders pending or appealable on either May 26, 1971, when the District Court made its fee award, or on July 1, 1972, and that, therefore, § 718 could not be used to sustain the award.
Held: Section 718 can be applied to attorneys' services that were rendered before that provision was enacted in a situation, like the one here involved, where the propriety of the fee award was pending resolution on appeal when the statute became law. Pp. 416 U. S. 710-724.
(a) An appellate court must apply the law in effect at the time it renders its decision, Thorpe v. Housing Authority of the City of Durham,393 U. S. 268, 393 U. S. 281, unless such application would work a manifest injustice or there is statutory direction or legislative history to the contrary. Pp. 416 U. S. 711-716.
(b) Such injustice could result "in mere private cases between individuals," United States v. Schooner Peggy, 1 Cranch 103, 5 U. S. 110, the determinative factors being the nature and identity of the parties, the nature of their rights, and the nature of the impact of the change in law upon those rights. Upon consideration of those aspects here (see infra, (c)-(e)), it cannot be said that the application of the statute would cause injustice. Pp. 416 U. S. 716-721.
(c) There was a disparity in the respective abilities of the parties to protect themselves, and the litigation did not involve merely private interests. Petitioners rendered substantial service to the community and to the Board itself by bringing it into compliance with its constitutional mandate, and thus acting as a "private attorney general" in vindicating public policy. Pp. 416 U. S. 718-719.
(d) Application of § 718 does not affect any matured or unconditional rights, the School Board having no unconditional right to the funds allocated to it by the taxpayers. P. 416 U. S. 720.
(e) No increased burden was imposed, since the statute did not alter the Board's constitutional responsibility for providing pupils with a nondiscriminatory education, and there is no change in the substantive obligation of the parties. Pp. 416 U. S. 720-721.
(f) The Court of Appeals erred in concluding that § 718 was inapplicable to the petitioners' request for fees because there was no final order pending unresolved on appeal, since the language of § 718 is not to be read to mean that a fee award must be made
simultaneously with the entry of a desegregation order, and a district court must have discretion in a school desegregation case to award fees and costs incident to the final disposition of interim matters. Pp. 416 U. S. 721-723.
(g) Since the District Court made an allowance for services to January 29, 1971, when petitioners were not yet the "prevailing party" within the meaning of § 718, the fee award should be recomputed to April 5, 1971, or thereafter. Pp. 416 U. S. 723-724.
472 F.2d 318, vacated and remanded.
BLACKMUN, J. delivered the opinion of the Court, in which all Members joined except MARSHALL and POWELL, JJ., who took no part in the consideration or decision of the case.
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
In this protracted school desegregation litigation, the District Court awarded the plaintiff petitioners expenses and attorneys' fees for services rendered from March 10, 1970, to January 29, 1971. 53 F.R.D. 28 (ED Va.1971).
The United States Court of Appeals for the Fourth Circuit, one judge dissenting, reversed. 472 F.2d 318 (1972). We granted certiorari, 412 U.S. 937 (1973), to determine whether the allowance of attorneys' fees
was proper. Pertinent to the resolution of the issue is the enactment in 1972 of § 718 of Title VII, the Emergency School Aid Act, 20 U.S.C. § 1617 (1970 ed. Supp. II), as part of the Education Amendments of 1972, Pub.L. 9318, 86 Stat. 235, 369.
The suit was instituted in 1961 by 11 Negro parents and guardians against the School Board of the city of Richmond, Virginia, as a class action under the Civil Rights Act of 1871, 42 U.S.C. § 1983, to desegregate the public schools. On March 16, 1964, after extended consideration, [Footnote 1] the District Court approved a "freedom of choice" plan by which every pupil was permitted to attend the school of the pupil's or the parents' choice, limited only by a time requirement for the transfer application and by lack of capacity at the school to which transfer was sought. On appeal, the Fourth Circuit, sitting
en banc, affirmed, with two judges dissenting in part, and held that the plan satisfied the Board's constitutional obligations. 345 F.2d 310 (1965). The court saw no error in the trial court's refusal to allow the plaintiffs' attorneys more than a nominal fee ($75). Id. at 321. The dissenters referred to the fee as "egregiously inadequate." Id. at 324. On petition for a writ of certiorari, this Court, per curiam,382 U. S. 382 U.S. 103 (1965), summarily held that the petitioners improperly had been denied a full evidentiary hearing on their claim that a racially based faculty allocation system rendered the plan constitutionally inadequate under Brown v. Board of Education,347 U. S. 483 (1954). In vacating the judgment of the Court of Appeals and in remanding the case, we expressly declined to pass on the merits of the desegregation plan and noted that further judicial review following the hearing was not precluded. 382 U.S. at 382 U. S. 105.
After the required hearing, the District Court, on March 30, 1966, approved a revised "freedom of choice" plan [Footnote 2] submitted by the Board, and agreed to by the petitioners.
App. 17a. It provided that, if the steps taken by the Board "do not produce significant results during the 19667 school year, it is recognized that the freedom of choice plan will have to be modified." Id. at 23a. This plan was in operation about four years. While it was in effect, Green v. County School Board of New Kent County,391 U. S. 430 (1968), was decided. The Court there held that, where methods promising speedier and more effective conversion to a unitary system were reasonably available, a freedom of choice plan was not acceptable. Id. at 391 U. S. 439-441.
Thereafter, on March 10, 1970, petitioners filed with the District Court a motion for further relief in the light of the opinions of this Court in Green, supra, in Alexander v. Holmes County Board of Education,396 U. S. 19 (1969), and in Carter v. West Feliciana Parish School Board,396 U. S. 290 (1970). Specifically, petitioners asked that the court "require the defendant school board forthwith to put into effect" a plan that would "promptly and realistically convert the public schools of the City of Richmond into a unitary nonracial system," and that the court "award a reasonable fee to [petitioners'] counsel." App. 25a. The court then ordered the Board to advise the court whether the public schools were being operated "in accordance with the constitutional requirements . . . enunciated by the United States Supreme Court." Id. at 27a. The Board, by a statement promptly filed with the District Court, averred that it had operated the school system, to the best of its knowledge and belief, in accordance with the decree
of March 30, 1966, but that it has "been advised" that the city schools were "not being operated as unitary schools in accordance with the most recent enunciations of the Supreme Court." Id. at 28a. It was also asserted that the Board had requested the Department of Health, Education, and Welfare to make a study and recommendation; that the Department had agreed to undertake to do this by May l; and that the Board would submit a plan for the operation of the public school system not later than May 11. Ibid. Following a hearing, however, the District Court, on April 1, 1970, entered a formal order vacating its order of March 30, 1966, and enjoining the defendants "to disestablish the existing dual system" and to replace it "with a unitary system." See 317 F.Supp. 555, 558 (ED Va.1970). Thereafter, the Board and several intervenors filed desegregation plans.
The initial plan offered by the Board and HEW was held unacceptable by the District Court on June 26, 1970. Id. at 572. The court was concerned (a) with the fact that the Board had taken no voluntary action to change its freedom of choice plan after this Court's decision in Green two years before, id. at 560, (b) with the plan's failure to consider patterns of residential segregation in fixing school zone lines or to use transportation as a desegregation tool, despite the decision in Swann v. Charlotte-Mecklenburg Board of Education, 431 F.2d 138 (CA4 1970), aff'd as modified,402 U. S. 1 (1971), and (c) with its failure to consider racial factors in zoning, despite the approval thereof in Warner v. County School Board of Arlington County, 357 F.2d 452 (CA4 1966). 317 F.Supp. at 577-578. The District Court also rejected desegregation plans offered by intervenors and by the petitioners. [Footnote 3]
A second plan submitted by the Board was also deemed to be unsatisfactory in certain respects. Nonetheless, on August 17, the court found its adoption on an interim basis for 1970-1971 to be necessary, since the school year was to begin in two weeks. [Footnote 4] Id. at 578. The court directed the defendants to file within 90 days a report setting out the steps taken "to create a unitary system . . . and . . . the earliest practical and reasonable date that any such system could be put into effect." Ibid.
The Board then submitted three other desegregation plans. Hearings were held on these and on still another plan submitted by the petitioners. [Footnote 5] On April 5, 1971,
the court adopted the Board's third plan, which involved pupil reassignments and extensive transportation within the city. 325 F.Supp. 828 (ED Va.1971). [Footnote 6]
Meanwhile, the Board had moved for leave to make the school boards and governing bodies of adjoining Chesterfield
and Henrico Counties, as well as the Virginia State Board of Education, parties to the litigation, and to serve upon these entities a third-party complaint to compel them to take all necessary action to bring about the consolidation of the systems and the merger of the boards. The court denied the defense motion for the convening of a three-judge court. 324 F.Supp. 396 (ED Va.1971).
On January 10, 1972, the court ordered into effect a plan for the integration of the Richmond schools with those of Henrico and Chesterfield Counties. 338 F.Supp. 67 (ED Va.1972). On appeal, the Fourth Circuit, sitting en banc, reversed, with one judge dissenting, holding that state-imposed segregation had been "completely removed" in the Richmond school district, and that the consolidation was not justified in the absence of a showing of some constitutional violation in the establishment and maintenance of these adjoining and separate school districts. 462 F.2d 1058, 1069 (1972). We granted cross-petitions for writs of certiorari. 409 U.S. 1124 (1973). After argument, the Court of Appeals' judgment was affirmed by an equally divided Court. Richmond School Board v. Board of Education,412 U. S. 92 (1973).
The petitioners' request for a significant award of attorneys' fees was included, as has been noted, in their pivotal motion of March 10, 1970. App. 25a. That application was renewed on July 2. Id. at 66a. The District Court first suggested, by letter to the parties, that they attempt to reach agreement as to fees. When agreement was not reached, the court called for supporting material and briefs. [Footnote 7] In due course, the court awarded counsel fees in the amount of $43,355 for services rendered
from March 10, 1970, to January 29, 1971, and expenses of $13,064.65. 53 F.R.D. 28, 43-44 (ED Va.1971).
Noting the absence at that time of any explicit statutory authorization for an award of fees in school desegregation actions, id. at 34, the court based the award on two alternative grounds rooted in its general equity power. [Footnote 8] First, the court observed that prior desegregation decisions demonstrated the propriety of awarding counsel fees when the evidence revealed obstinate noncompliance with the law or the use of the judicial process for purposes of harassment or delay in affording rights clearly owed. [Footnote 9] Applying the test enunciated by the Fourth Circuit
in 345 F.2d at 321, the court sought to determine whether "the bringing of the action should have been unnecessary and was compelled by the school board's unreasonable, obdurate obstinacy." Examining the history of the litigation, the court found that, at least since 1968, the Board clearly had been in default in its constitutional duty as enunciated in Green. While reluctant to characterize the litigation engendered by that default as unnecessary in view of the ongoing development of relevant legal standards, the court observed that the actions taken and the defenses asserted by the Board had caused an unreasonable delay in the desegregation of the schools and, as a result, had caused the plaintiffs to incur substantial expenditures of time and money to secure their constitutional rights. [Footnote 10]
As an alternative basis for the award, the District Court observed that the circumstances that persuaded Congress to authorize by statute the payment of counsel fees under certain sections of the Civil Rights Act of 1964 [Footnote 11] were present in even greater degree in school desegregation litigation. In 1970-1971, cases of this kind were characterized by complex issues pressed on behalf of large classes, and thus involved substantial expenditures of lawyers' time with little likelihood of compensation or award of monetary damages. If forced to bear the burden of attorneys' fees, few aggrieved persons would be in a position to secure their and the public's interests in a nondiscriminatory public school system. Reasoning from this Court's per curiam decision in Newman v. Piggie Park Enterprises, Inc.,390 U. S. 400, 390 U. S. 402 (1968), the District Judge held that plaintiffs in actions of this kind were acting as private attorneys general in leading school boards into compliance with the law, thereby effectuating the constitutional guarantee of nondiscrimination and rendering appropriate the award of counsel fees. 53 F.R.D. at 41-42.
The Court of Appeals, in reversing, emphasized that the Board 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 procedure to be followed,"
particularly in the light of uncertainties existing prior to this Court's then impending decision in Swann v. Charlotte-Mecklenburg
Board of Education,402 U. S. 1 (1971). 472 F.2d at 327. It felt that, by the failure of Congress to provide specifically for counsel fees "in a statutory scheme designed to further a public purpose, it may be fairly accepted that it did so purposefully," and that
"if such awards are to be made to promote the public policy expressed in legislative action, they should be authorized by Congress, and not by the courts."
Id. at 330-331.
After initial submission of the case to the Court of Appeals, but prior to its decision, the Education Amendments of 1972, of which § 718 of Title VII of the Emergency School Aid Act is a part, became law. Section 718, 20 U.S.C. § 1617 (1070 ed., Supp. II), grants authority to a federal court to award a reasonable attorney's fee when appropriate in a school desegregation case. [Footnote 12] The Court of Appeals, sitting en banc, then heard argument as to the applicability of § 718 to this and other litigation. [Footnote 13] In the other cases it held that only legal services rendered after July 1, 1972, the effective date of § 718, see Pub.L. 92-318, § 2(c)(1), 86 Stat. 236, were compensable under that statute. Thompson v. School Board
of the City of Newport News, 472 F.2d 177 (CA4 1972). In the instant case the court held that, because there were no orders pending or appealable on either May 26, 1971, when the District Court made its fee award, or on July 1, 1972, when the statute became effective, § 718 did not sustain the allowance of counsel fees.
In Northcross v. Board of Education of the Memphis City Schools,412 U. S. 427, 412 U. S. 428 (1973), we held that, under § 718, "the successful plaintiff should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust.'" We decide today a question left open in Northcross, namely,
"whether § 718 authorizes an award of attorneys' fees insofar as those expenses were incurred prior to the date that that section came into effect."
Id. at 412 U. S. 429 n. 2.
The District Court in this case awarded counsel fees for services rendered from March 10, 1970, when petitioners filed their motion for further relief, to January 29, 1971, when the court declined to implement the plan proposed by the petitioners. It made its award on May 26, 1971, after it had ordered into effect the noninterim desegregation plan which it had approved. The Board appealed from that award, and its appeal was pending when Congress enacted § 718. The question, properly viewed, then, is not simply one relating to the propriety of retroactive application of § 718 to services rendered prior to its enactment, but rather one relating to the applicability of that section to a situation where the propriety of a fee award was pending resolution on appeal when the statute became law.
This Court in the past has recognized a distinction between the application of a change in the law that takes place while a case is on direct review, on the one hand,
and its effect on a final judgment [Footnote 14] under collateral attack, [Footnote 15] on the other hand. Linkletter v. Walker,381 U. S. 618, 381 U. S. 627 (1965). We are concerned her only with direct review.
We anchor our holding in this case on the principle that a court is to apply the law in effect at the time it renders its decision unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary.
The origin and the justification for this rule are found in the words of Mr. Chief Justice Marshall in United States v. Schooner Peggy, 1 Cranch 103 (1801):
"It is in the general true that the province of an appellate court is only to enquire 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 obligation 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 which will, by a retrospective operation, affect the rights of parties, but, in great national concerns . . . , the court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside."
In the wake of Schooner Peggy, however, it remained unclear whether a change in the law occurring while a case was pending on appeal was to be given effect only where, by its terms, the law was to apply to pending cases, as was true of the convention under consideration in Schooner Peggy, or, conversely, whether such a change
in the law must be given effect unless there was clear indication that it was not to apply in pending cases. For a very long time, the Court's decisions did little to clarify this issue. [Footnote 17]
Ultimately, in Thorpe v. Housing Authority of the City of Durham,393 U. S. 268 (1969), the broader reading of Schooner Peggy was adopted, and this Court ruled that "an appellate court must apply the law in effect at the time it renders its decision." Id. at 393 U. S. 281. In that case, after the plaintiff Housing Authority had secured a state court eviction order and it had been affirmed by the Supreme Court of North Carolina, Housing Authority of the City of Durham v. Thorpe, 27 N.C. 431, 148 S.E.2d 290 (1966), and this Court had granted certiorari, 385 U.S. 967 (1966), the Department of Housing and Urban Development ordered a new procedural prerequisite for an eviction. Following remand by this Court for such further proceedings as might be appropriate in the light of the new directive, 386 U. S. 670 (1967), the state court adhered to its decision. 271 N.C. 468, 157 S.E.2d 147 (1967). [Footnote 18] This Court again granted certiorari. 390 U.S. 942 (1968). Upon review, we held that, although the circular effecting the change did not indicate whether it
was to be applied to pending cases or to events that had transpired prior to its issuance, [Footnote 19] it was, nonetheless, to be applied to anyone residing in the housing project on the date of its promulgation. The Court recited the language in Schooner Peggy quoted above, and noted that that reasoning "has been applied where the change was constitutional, statutory, or judicial," 393 U.S. at 393 U. S. 282 (footnotes omitted), and that it must apply "with equal force where the change is made by an administrative agency acting pursuant to legislative authorization." Ibid.Thorpe thus stands for the proposition that, even where the intervening law does not explicitly recite that it is to be applied to pending cases, it is to be given recognition and effect.
Accordingly, we must reject the contention that a change in the law is to be given effect in a pending case only where that is the clear and stated intention of the legislature. [Footnote 20] While neither our decision in Thorpe nor our decision today purports to hold that courts must always thus apply new laws to pending cases in the absence of clear legislative direction to the contrary, [Footnote 21] we
do note that, insofar as the legislative history of § 718 is supportive of either position, [Footnote 22] it would seem to provide at least implicit support for the application of the statute to pending cases. [Footnote 23]
The Court in Thorpe, however, observed that exceptions to the general rule that a court is to apply a law in effect at the time it renders its decision "had been made to prevent manifest injustice," citing Greene v. United
States,376 U. S. 149 (1964). [Footnote 24] Although the precise category of cases to which this exception applies has not been clearly delineated, the Court in Schooner Peggy suggested that such injustice could result "in mere private cases between individuals," and implored the courts to "struggle hard against a construction which will, by a retrospective operation, affect the rights of parties." 1 Cranch at 5 U. S. 110. We perceive no such threat of manifest injustice present in this case. We decline, accordingly, to categorize it as an exception to Thorpe's general rule.
The concerns expressed by the Court in Schooner Peggy and in Thorpe relative to the possible working of an injustice center upon (a) the nature and identity of the parties, (b) the nature of their rights, and (c) the nature of the impact of the change in law upon those rights.
In this case, the parties consist, on the one hand, of the School Board, a publicly funded governmental entity, and, on the other, a class of children whose constitutional right to a nondiscriminatory education has been advanced by this litigation. The District Court rather vividly described what it regarded as the disparity in the respective abilities of the parties adequately to present and protect their interests. [Footnote 25] Moreover, school desegregation litigation is of a kind different from "mere private cases between individuals." With the Board responsible for the education of the very students who brought suit against it to require that such education comport with constitutional standards, it is not appropriate to view the parties as engaged in a routine private lawsuit. In this litigation, the plaintiffs may be recognized as having rendered substantial service both to the Board itself, by bringing it into compliance with its constitutional mandate, and to the community at large by securing for it the benefits assumed to flow from a nondiscriminatory educational system. [Footnote 26] Brown v. Board of Education, 347 U.S. at 347 U. S. 494.
In Northcross, we construed, as in pari passu, § 718 and § 204(b) of the Civil Rights Act of 1964, 42 U.S.C. § 2000a-3(b), providing for an award of counsel fees to a successful plaintiff under the public accommodation subchapter of that Act. Our discussion of the latter provision in Piggie Park is particularly apt in the context of school desegregation litigation:
"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 private litigation as a means of securing broad compliance 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."
390 U.S. at 390 U. S. 401-402 footnotes omitted).
Application of § 718 to such litigation would thus appear to have been anticipated by Mr. Chief Justice Marshall in Schooner Peggy when he noted that, in "great national concerns . . . , the court must decide according to existing laws." 1 Cranch at 5 U. S. 110. Indeed, the circumstances surrounding the passage of § 718, and the numerous expressions of congressional concern and intent with respect to the enactment of that statute, all proclaim its status as having to do with a "great national concern." [Footnote 27]
The second aspect of the Court's concern that injustice may arise from retrospective application of a change in law relates to the nature of the rights effected by the change. The Court has refused to apply an intervening change to a pending action where it has concluded that to do so would infringe upon or deprive a person of a right that had matured or become unconditional. See Greene v. United States, 376 U.S. at 376 U. S. 160; Claridge Apartments Co. v. Commissioner,323 U. S. 141, 323 U. S. 164 (1944); Union Pacific R. Co. v. Laramie Stock Yards Co.,231 U. S. 190, 231 U. S. 199 (1913). We find here no such matured or unconditional right affected by the application of § 718. It cannot be claimed that the publicly elected School Board had such a right in the funds allocated to it by the taxpayers. These funds were essentially held in trust for the public, and, at all times, the Board was subject to such conditions or instructions on the use of the funds as the public wished to make through its duly elected representatives.
The third concern has to do with the nature of the impact of the change in law upon existing rights, or, to state it another way, stems from the possibility that new and unanticipated obligations may be imposed upon a party without notice or an opportunity to be heard. In Thorpe, we were careful to note that, by the circular, the
"respective obligations of both HUD and the Authority under the annual contributions contract remain unchanged. . . . Likewise, the lease agreement between
the Authority and petitioner remains inviolate."
393 U.S. at 393 U. S. 27. Here, no increased burden was imposed, since § 718 did not alter the Board's constitutional responsibility for providing pupils with a nondiscriminatory education. Also, there was no change in the substantive obligation of the parties. From the outset, upon the filing of the original complaint in 1961, the Board engaged in a conscious course of conduct with the knowledge that, under different theories, discussed by the District Court and the Court of Appeals, the Board could have been required to pay attorneys' fees. Even assuming a degree of uncertainty in the law at that time regarding the Board's constitutional obligations, there is no indication that the obligation under § 718, if known, rather than simply the common law availability of an award, would have caused the Board to order its conduct so as to render this litigation unnecessary and thereby preclude the incurring of such costs.
The availability of § 718 to sustain the award of fees against the Board therefore merely serves to create an additional basis or source for the Board's potential obligation to pay attorneys' fees. It does not impose an additional or unforeseeable obligation upon it.
Accordingly, upon considering the parties, the nature of the rights, and the impact of § 718 upon those rights, it cannot be said that the application of the statute to an award of fees for services rendered prior to its effective date, in an action pending on that date, would cause "manifest injustice," as that term is used in Thorpe, so as to compel an exception of the case from the rule of Schooner Peggy.
Finally, we disagree with the Court of Appeals' conclusion that § 718, by its very terms, is inapplicable to the petitioners' request for fees "because there was no
final order' pending unresolved on appeal," 472 F.2d at 331, when § 718 became effective, or on May 26, 1971, when the District Court made its award.
It is true that, when the District Court entered its order, it was at least arguable that the petitioners had not yet become "the prevailing party," within the meaning of § 718. The application for fees had been included in their March 10, 1970, motion for further relief in the light of developments indicated by the decision two years before in Green. The Board's first plan was disapproved by the District Court on June 26. Its second plan was also disapproved, but was ordered into effect on an interim basis on August 17 for the year about to begin. The third plan was ultimately approved on April 5, 1971, and the order allowing fees followed shortly thereafter.
Surely, the language of § 718 is not to be read to the effect that a fee award must be made simultaneously with the entry of a desegregation order. The statute, instead, expectedly makes the existence of a final order a prerequisite to the award. The unmanageability of a requirement of simultaneity is apparent when one considers the typical course of litigation in a school desegregation action. The history of this litigation from 1970 to 1972 is illustrative. The order of June 20, 1970, suspending school construction, the order of August 17 of that year placing an interim plan in operation, and the order of April 5, 1971, ordering the third plan into effect, all had become final when the fee award was made on May 26, 1971. [Footnote 28] Since most school cases can be expected
to involve relief of an injunctive nature that must prove its efficacy only over a period of time, and often with frequent modifications, many final orders may issue in the course of the litigation. To delay a fee award until the entire litigation is concluded would work substantial hardship on plaintiffs and their counsel, and discourage the institution of actions despite the clear congressional intent to the contrary evidenced by the passage of § 718. A district court must have discretion to award fees and costs incident to the final disposition of interim matters. See 6 J. Moore, Federal Practice
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