The opinion
On Petitions for Rehearing
Upon consideration of the petitions for rehearing filed on behalf of the appellants and the appellees,
It is ordered that Section IV-A of the opinion be amended, adding at the end thereof a paragraph reading:
While allowing damages in favor of the McCrarys against Bobbe’s School and in favor of Colin Gonzales because of his minority, the district court denied an award of damages to Mr. and Mrs. Gonzales since it concluded that their claim was foreclosed by the applicable statute of limitations. The statute applied was the first sentence of Virginia Code § 8-24, applicable to actions for personal injuries. It is contended on appeal that the judge should have applied Virginia’s five year statute, the second sentence of § 8—24, applicable to actions not otherwise provided for in more specific statutes of limitations. While the action is brought under Section 1981, the damage claim is entirely referable to injured feelings and humiliation. We have held such claims asserted under the Reconstruction Acts to be governed by Virginia’s two year statute. Allen v. Gifford, 4th Cir. 462 F.2d 615 ; see Almond v. Kent, 4th Cir., 459 F.2d 200 . It is also contended that the five year statute for actions on a contract, Virginia Code § 8—13, applies, but it is clear that no action on a contract is involved.
It is further ordered that the petitions for rehearing be and each of them hereby is denied.
Upon consideration of the motion for allowance of attorney’s fees on appeal filed on behalf of the appellees,
It is ordered that the motion for allowance of attorney’s fees be and hereby is denied.
In conformity with Alyeska Pipeline Service Company v. Wilderness Society, - U.S. -, 95 S.Ct. 1612 , 44 L.Ed.2d 141 (1975), Judge Butzner withdraws that part of his dissent approving the district court’s allowance of attorneys’ fees on the basis of the private attorneys general theory. However, he retains the section which would affirm the allowance of fees because of the defendants’ bad faith. See Alyeska Pipeline Service Company v. Wilderness Society, supra - U.S. at -, -, n.46, 95 S.Ct. 1612 . Judge Winter and Judge Craven concur in this amendment of Judge Butzner’s dissent.
Except as modified herein, each member of the court adheres to the position he took in the previously released opinions.