U.S. Supreme Court

BRADLEY v. RICHMOND SCHOOL BOARD, 416 U.S. 696 (1974)

416 U.S. 696

BRADLEY ET AL. v. SCHOOL BOARD OF THE CITY OF RICHMOND ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT.

No. 72-1322.

Argued December 5, 1973.

Decided May 15, 1974.

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, 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. 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, 281 , unless such application would work a manifest injustice or there is statutory direction or legislative history to the contrary. Pp. 711-716.

(b) Such injustice could result "in mere private cases between individuals," United States v. Schooner Peggy, 1 Cranch 103, 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. 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. 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. 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. 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. 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. 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.

William T. Coleman, Jr., argued the cause for petitioners. With him on the briefs were Jack Greenberg, James M. Nabrit III, Norman J. Chachkin, Charles Stephen Ralston, Eric Schnapper, and Louis R. Lucas.

George B. Little argued the cause for respondents. With him on the brief were James K. Cluverius and Conard B. Mattox, Jr.^{Footnote *}

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. 92-318, 86 Stat. 235, 369.

I

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. 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 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 1966-67 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 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 non-racial 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 1; 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).

II

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, 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 (1970 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.

III

In Northcross v. Board of Education of the Memphis City Schools,  412 U.S. 427, 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 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 non-interim 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, 627 (1965). We are concerned here only with direct review.

A

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