Petition — Gonzales v. Fairfax-Brewster School, Inc.

IN THE

Supreme Court of the United States

OCTOBER TERM, 1977

COLIN M. GONZALES, et al.,

Petitioners,

v.

FAIRFAX-BREWSTER SCHOOL, INC., et al.,

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

a

RODERIC V. 0. BOGGS

Washington Lawyers’ Committee

for Civil Rights Under Law

733 15th Street, N.W.

Washington, D.C. 20005

ALLISON W. BROWN, JR.

Suite 301

1345 E Street, N.W.

Washington, D.C. 20004

ROBERT M. ALEXANDER

2011 South Glebe Road

Arlington, Virginia 22204

Attorneys for Petitioners

FS RA FE RE EE ASAT ES AY, A

THE CASILLAS PRESS, INC.-1717 K Street. N. W.—Washington, 0. C.-223-1220 -

(i)

INDEX

; Page

Bar a a we 2

GR ae ae ee ne 2

QUESTION PRESENTED .........2.22.. 2

a eg ae! me a ee 2

I ek ee se ek win ee ene 3

REASONS FORGRANTING THEWRIT ....... 7

a a ee ee

DO ere eb ak Ss eS Oe ke eee la

hoe wee el ere ale ce ae «ee ee ~ ae

a a ee,

ne « «ss + «4 « & » « « *-s os TOR

CITATIONS

Cases:

Banco Nacional de Cuba v. Farr,

383 F.2d 166 (C.A. 2, 1967), cert. denied,

390 U.S. 956 . 13

Beazer v. New York City Transit Authority,

- |e oof ey, es

Bradley v. School Board of the City of Richmond,

416 U.S.696(1974) . ...... . . « 6,7,9,13,14

(ii)

Duplex Printing Press Co. v. Deering,

254 U.S. 443 (1921)

Hutto v. Finney,

__US.__, 46 U.S.L.W. 4822

(decided June 23, 1978)

Keyes v. School District No. 1, Denver, Colo.,

439 F. Supp. 393 (D. Colo., 1977) .

Maddrix v. Dize,

153 F.2d 274 (C.A. 4, 1946) .

Perez v. Rodriguez Bou,

575 F.2d 21 (C.A. 1, 1978)

Perkins v. Standard Oil Co.,

399 U.S. 222 (1970)

Runyon v. McCrary,

427 U.S. 160 (1976)

Sampeyreac v. United States,

7 Pet. 222 (1833)

Simpson v. Weeks,

570 F.2d 240 (C.A. 8, 1978) .

Sprague v. Ticonic National Bank,

307 U.S. 161 (1938)

Ticonic National Bank v. Sprague,

303 U.S. 406 (1938)

Ziffrin v. United States,

318 U.S. 73 (1943) .

10

10

12

10

-11,12

10

10

11

11

10

(iii)

Statutes:

28 U.S.C. § 1920 .

42 U.S.C.§1981 .

42 U.S.C. 61988 .

Ga. Code Ann. § 22-3119 .

Miscellaneous:

122 Cong. Rec. H 12155 (1976)

122 Cong. Rec. H 12160 (1976)

122 Cong. Rec. H 12166 (1976)

122 Cong. Rec. S 17052 (1976)

H.R. Rep. No. 94-1558, 94th Cong., 2d Sess. (1976) .

IN THE

Supreme Court of the United States

OCTOBER TERM, 1977

No.

COLIN M. GONZALES, et al.,

Petitioners,

vy.

FAIRFAX-BREWSTER SCHOOL, INC., ef al.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Petitioners respectfully pray that a writ of certiorari

issue to review the judgment of the United States Court

of Appeals for the Fourth Circuit in this case.!

I Petitioners, plaintiffs below, consist of Colin M. Gonzales and

Michael C. McCrary, infants, who brought this action through their

respective parents, as well as their parents, Raymond Gonzales and

Margaret R. Gonzales, and Curtis L. McCrary and Sandra McCrary.

Respondents consist of defendants Fairfax-Brewster School, Inc.,

Russell L. Runyon and Katheryne E. Runyon, d/b/a Bobbe’s

Private School, and defendant-intervenor Southern Independent

School Association.

OPINIONS BELOW

The opinion of the court of appeals (App. A, infra, pp.

la-6a) is reported at 569 F.2d 1294. The relevant order of

the district court (App. D, infra, pp. 10a-lla) is not reported.

JURISDICTION

The judgment of the court of appeals (App. B, infra,

pp. 7a-8a) was entered on January 20, 1978. Petitioners

filed a petition for rehearing and suggestion for rehearing

en banc which was denied by the court of appeals by its

order entered March 29, 1978 (App. C, infra, p. 9a). On

June 20, 1978, Chief Justice Burger extended the time for

filing a petition for a writ of certiorari to and including

July 27, 1968. The jurisdiction of this Court is invoked

under 28 U.S.C. Sec. 1254(1).

QUESTION PRESENTED °

Whether the Civil Rights Attorney’s Fees Awards Act

of 1976 (42 U.S.C. §1988), which Congress directed to

be applied to cases pending at the time of its enactment,

is applicable to the instant case, which, at the time the

statute was enacted, had been remanded from this Court

and was pending in the district court awaiting the resolu-

tion of issues concerning taxation of costs.

STATUTE INVOLVED

The Civil Rights Attorney’s Fees Awards Act of 1976

(42 U.S.C. §1988) provides as follows:

§1988. Proceedings in vindication of civil

rights . . . In any action or proceeding to

enforce a provision of 881977, 1978, 1979,

1980, and 1981 of the Revised Statutes

[42 U.S.C. 881981-1983, 1985, 1986], title

IX of Public Law 92-318 [20 U.S.C. 881681

et seq.], or in any civil action or proceed-

ing, by or on behalf of the United States

of America, to enforce, or charging a viola-

tion of, a provision of the United States

Internal Revenue Code [26 U.S.C. 88/ et seq.],

or title VI of the Civil Rights Act of 1964

[42 U.S.C. 8§2000d ef seqg.], the court, in

its discretion, may allow the prevailing party,

other than the United States, a reasonable

attorney’s fee as part of the costs. [As

amended Oct. 19, 1976, P. L. 94-559, 82,

90 Stat. 2641.]

STATEMENT

Because this case was pending in the district court when

the Civil Rights Attorney’s Fees Awards Act of 1976 (42

U.S.C. §1988) became effective, plaintiffs moved for an

award of attorneys’ fees pursuant to the congressional

direction that the new statute be applied to all cases

pending on the date of its enactment. Contrary to the

congressional instruction and to controlling authorities, the

district court, with the court of appeals affirmance, denied

plaintiffs’ motion for attorneys’ fees.

This is the latest and final stage of an historic civil

rights case in which this Court held on June 25, 1976,

that private schools are prohibited by the Civil Rights Act

of 1866 (42 U.S.C. §1981) from denying admission to

individuals on the basis of race. Runyon v. McCrary, 427

U.S. 160. This proceeding originated with the filing of

4

two complaints in the district court on December 19,

1972. The cases were consolidated for trial and on July

27, 1973, the district court issued its decision holding

that the defendant schools violated 42 U.S.C. §1981 by

denying admission to Colin M. Gonzales and Michael C.

McCrary because they are black. 363 F.Supp. 1200. The

court ordered appropriate injunctive relief and awarded

compensatory damages. The district court also awarded

plaintiffs their costs, as well as attorneys’ fees in the

amount of $1,000 against each of the defendant schools

(infra, p. 2a).

On appeal, the court of appeals affirmed the district

court’s injunctive order and award of damages. 515 F.2d

1082. However, the court of appeals reversed the district

court’s award of attorneys’ fees, holding that in the

absence of any statutory a’ thorization such award was in-

appropriate under the “private attorney general” doctrine,

and that the facts did not warrant an award on the theory

that the defendants had displayed bad faith or obdurate

obstinancy (infra, p. 3a).

Upon the petitions of defendants and the defendant-

intervenor, this Court granted certiorari and affirmed the

holding of the court of appeals that the defendant schools

had violated 42 U.S.C. 81981 by their racially discrimina-

tory admission policies. In addition, this Court granted

plaintiffs’ cross-petition for certiorari on the issue of at-

torneys’ fees, but rejected plaintiffs’ contention that they

should be awarded such fees under the bad faith exception

to the established American rule. This Court’s judgment

was issued on August 11, 1976, and provided, among

other things, that the costs of printing the record should

be shared equally by the parties and therefore that de-

fendants should recover from plaintiffs specific amounts

stated in the judgment. The Court’s judgment was mailed

to the clerk of the court of appeals who in turn forwarded

it to the clerk’s office of the district court where it was

received on August 16, 1976 (infra, p. 3a).

The Civil Rights Attorney’s Fees Awards Act of 1976

was signed into law by President Ford on October 19,

1976. Since its legislative history as well as controlling

case law indicate that the statute was to be applied to

cases pending at the time the statute became effective,

plaintiffs, on November 1, 1976, filed a motion in the

district court for an award of costs, including attorneys’

fees. Plaintiffs’ motion noted that the district court had

not acted on their request for taxation of costs in that

court under 28 U.S.C. §1920.? In their motion, plaintiffs

further noted that the costs of printing the record in this

Court awarded under this Court’s judgment of August 11,

1976, had not been taxed by the clerk of the district

court as part of that court’s final judgment. The motion

requested that the district court enter an order settling

costs and awarding attorneys’ fees as provided in the

1976 statute. While plaintiffs’ motion was pending in the

district court, the defendants each filed motions in the

court of appeals requesting that it order plaintiffs to re-

imburse them for a proportionate share of the cost of

printing the appendix used on the appeal in that court

(infra, p. 4a, n.4).3

2 In their bills of costs filed in the district court on April 25,

1975, plaintiffs had claimed $153.09 from Fairfax-Brewster School

and $162.37 from Bobbe’s Private School. These amounts included

fees for filing and service of the complaint, the cost of deposition

transcripts used at trial, and the trial transcript used on appeal.

3 The court of appeals had entered its judgment on the merits of

the appeals nearly two years earlier, on April 15, 1975.

On December 14, 1976, the district court denied plain-

tiffs’ motion for costs, thus reversing its 1973 decision

awerding costs to plaintiffs. In addition, the court denied

plaintiffs’ motion for an award of attorneys’ fees pursuant

to the Attorney’s Fees Awards Act of 1976. The district

court further ordered that the cost of printing the record

awarded to defendants by this Court should be paid by

plaintiffs as specified in this Court’s judgment. Finally,

the district court noted that its order did not constitute

a ruling concerning defendants’ motions then pending in

the court of appeals seeking to compel plaintiffs to share

the cost of printing the appendix used on appeal (infra,

pp. 10a-1] 1a).

On January 24, 1977, the court of appeals granted de-

fendants’ two motions and ordered plaintiffs to pay a

proportionate share of the cost of printing the appellate

appendix (infra, p. 4a, n.4).

On plaintiffs’ appeal from the district court’s order,

denying their motion for costs including attorneys’ fees,

the court of appeals, on January 20, 1978, issued its deci-

sion affirming the district court’s denial to plaintiffs of

an award of attorneys’ fees. While not disputing that the

case was pending in the district court at the time of enact-

ment of the Attorney’s Fees Awards Act of 1976, the

court nevertheless held the statute was not applicable to

the case for two reasons. First, distinguishing Bradley v.

School Board of the City of Richmond, 416 U.S. 696

(1974), which, like this case, involved the applicability of

a newly-enacted attorneys’ fee statute to a pending pro-

ceeding, the court of appeals noted that in that case the

new law became effective while the case was pending on

appeal, whereas here the new law did not become effective

until two months after this Court’s judgment had been

filed in the district court. The court thus construed

Bradley 2s holding, not that a new law such as the Awards

Act of 1976 is applicable to all cases pending at the time

of the law’s enactment, but that it is applicable oniy to

cases pending on appeal. As the second ground for its

decision, the court of appeals held that since this Court’s

judgment, which had been issued over two months before

enactment of the statute, contained no authorization for

an award of attorneys’ fees, the district court was without

authority to reopen the case to consider that issue (infra,

pp. 4a-6a).

As a final matter, the court of appeals reversed the dis-

trict court’s ruling that each party should bear its own

costs. The court of appeals held that after the district

court awarded costs to plaintiffs in its order of July 27,

1973, that award became a finality, and the district court

had no authority to alter it in carrying out the mandate

of this Court. The court of appeals therefore remanded

the proceeding to the district court to reinstate the taxa-

tion of costs under 28 U.S.C §1920 in favor of plaintiffs

(infra, p. 6a).4

REASONS FOR GRANTING THE WRIT

The court of appeals’ decision in this case should be

reversed because it is directly contrary to the explicit con-

4 On remand, the district court, on June 13, 1978, entered

orders taxing costs of $100.32 against Fairfax-Brewster School and

$103.32 against Bobbe’s School. The costs of deposition transcripts

used at trial claimed against the two schools in the amounts of

$42.77 and $59.25, respectively, were disallowed.

gressional direction that the Civil Rights Attorney’s Fees

Awards Act of 1976 be applied to all cases pending on

the date of its enactment. In addition, the court’s hold-

ing is in irreconcilable conflict with controlling decisions

of this Court.

The 1976 Act specifically entitles the prevailing party

in a case brought under 42 U.S.C. 61981, the statute

involved here, to recover ‘‘an award of attorney’s fees as

an item of costs.” Hutto v. Finney, ___ US. :

46 U.S.L.W. 4822 (decided June 23, 1978). There can

be no doubt here that the matter of costs remained un-

resolved and that the case therefore was still pending in

the district court on October 19, 1976, when the new

Act became effective. Nor was the cost issue immediately

resolved by the district court, for its order of December

14, 1976, denying costs to plaintiffs was held to be

reversible error by the court of appeals, which remanded

the case to the district court for taxation of costs in favor

of plaintiffs. Further, the court of appeals itself, in an

action signifying the continuing pendency of the case, on

January 24, 1977, granted defendants’ motions for re-

imbursement of the cost of printing the appendix used on

appeal.

As this Court stated in Hutto v. Finney, supra, the

Civil Rights Attorney’s Fees Awards Act of 1976 “could

not be broader. It applies to ‘any’ action brought to en-

force certain civil rights laws.” __ Ss» ~ U.S. __, 46

U.S.L.W. at 4821. It is clear beyond peradventure that

among the actions that Congress intended to be covered

by the Act are those that were pending on its effective

date. This case obviously was pending on October 19,

1976, and indeeed, the court of appeals did not hold

otherwise. Hence, there is no justification for the court’s

9

disregarding the explicit congressional instruction, contained

in the legislative history of the Act, that it be applied to

a case such as this. When the statute was under considera-

tion by the House of Representatives, an amendment was

offered by Representative Ashbrook designed to “exempt

from the coverage of this act all of those hundreds of

cases which are pending right now.” (122 Cong. Rec.

H 12166, 94th Cong. 2nd Sess. (1976, daily ed.)). The

amendment stated:

The provisions of this act shall take effect

upon enactment and shall be applicable to

cases filed only after the effective date of

this act.

The Ashbrook amendment was decisively defeated by a

vote of 268 to 104 (ibid.) Similarly, elsewhere in the

legislative history there is abundant evidence of the un-

mistakable congressional intent to apply the statute to all

cases pending on its effective date. See, e.g., statements

of Senator Abourezk, the Senate manager of the bill (122

Cong. Rec., supra, at S 17052) and Representative Drinan,

the House manager (122 Cong. Rec., supra, at H 12160);

H. R. Report No. 94-1558, 94th Cong., 2d Sess. p. 4, n.6

(1976); and remarks of Representative Anderson of Illinois

(122 Cong. Rec., supra, at H 12155).

In holding that an attorneys’ fee statute similar to the

one herein was applicable to a pending case, this Court

stated in Bradley v. School Board of the City of Rich-

mond, supra, that it was anchoring its decision on the

long-established principle that (416 U.S. at 711):

[A] court is to apply the law in effect at

the time it renders its decision, unless

doing so would result in manifest injustice

10

or there is statutory direction or legislative

history to the contrary.

With respect to the Civil Rights Attorney’s Fee Awards

Act of 1976, the legislative history is crystal clear — Con-

gress indicated its unmistakable intention that the statute

was to be applied to all cases pending on its effective

date.

The court of appeals, however, completely misreads

Bradley as holding that the principle followed there is

only applicable to cases pending on appeal at the time a

new law becomes effective. Not only is there a total lack

of evidence in the legislative history of the 1976 Act to

indicate that Congress intended the statute to be applied

to such a limited classs of pending cases, but the court of

appeals’ decision totally distorts the principle of judicial

decision-making upon which the Bradley decision is

grounded. For it is obvious that if a court of appeals is

obligated to apply a new law to a case pending before it,

a fortiori, a district court is under the same obligation.

This is demonstrated beyond question by the decisions of

this and other courts. £.g. Duplex Printing Press Co. v.

Deering, 254 U.S. 443, 464 (1921); Sampeyreac v. United

States, 7 Pet. 222, 239-240 (1833); Ziffrin v. United States,

318 U.S. 73, 78 (1943). See also Perez v. Rodriguez Bou,

575 F.2d 21, 24 (C.A. 1, 1978); Beazer v. New York City

Transit Authority, 558 F.2d 97, 99-100 (C.A. 2, 1977);

Simpson v. Weeks, 570 F.2d 240, 241, 244 (C.A. 8, 1978);

Keyes v. School District No. 1, Denver, Colo., 439 F.Supp.

393, 401 (D. Colo., 1977).

The second basis for the court of appeals’ decision —

that the district court lacked authority on remand to

grant an award of attorneys’ fees pursuant to the 1976

11

Act because this Court’s mandate did not provide for

such an award — is completely contrary to controlling

decisions of this Court. In two cases (Sprague v. Ticonic

Nationa] Bank, 307 U.S. 161 (1938); and Perkins y.

Standard Oil Co., 399 U.S. 222 (1970)) this Court has

decided virtually the identical issue that is involved here.

The court of appeals’ refusal to follow those compel-

ling precedents is inexplicable. In both of the cited cases,

it had been held below that the district courts lacked

authority, following proceedings in this Court, to grant

attorneys’ fee awards, and in both cases, this Court

reversed and ruled to the contrary.

In the Sprague case, the plaintiff successfully established the

right of herself and others to recover earmarked funds held in

trust by an insolvent bank, and following this Court’s affirm-

ance (Ticonic National Bank v. Sprague, 303 U.S. 406 (1938)),

plaintiff petitioned the district court for an award of at-

torneys’ fees. The district court held, with the court of

appeals’ affirmance, that it had no authority to grant the

petition because such an award had not been provided for

in its original judgment and there was no provision for an

award in this Court’s mandate. In reversing, this Court

stated that while its mandate “is controlling as to the

matters within its compass,’ matters not covered by the

mandate could properly be considered by the district

court. 307 U.S. at 168. Since the equitable claim for

attorneys’ fees was based on considerations that could not

be evaluated until the litigation, including the final appeal,

was concluded, this Court held that the issue was suf-

ficiently different from matters covered by the district

court’s original judgment and the appellate mandates that

the district court was not foreclosed from considering the

fee claim on its merits. Similarly here, since the Awards

Act of 1976 did not become effective until after this

12

Court’s judgment was entered, the issue of a statutory

fee award was not considered by this Court and the

matter therefore fell outside the Court’s mandate.

To the same effect is Perkins v. Standard Oil Co., supra,

where, following the plaintiff's success in this Court in a

private antitrust action, he applied to the district court

for a statutory award of attorneys’ fees for legal services

performed in the appellate stages of the litigation. The

district court had awarded fees for services performed

when the proceeding was originally before it, but denied

the application for appellate fees and the court of appeals

affirmed on the ground that such an award was not

authorized by this Court’s mandate. In a per curiam deci-

sion this Court reversed, holding that since the matter was

outside the scope of its mandate, the attorney fee applica-

tion was open for consideration by the district court. The

Court noted that the appropriate time for determining the

amount of an attorneys’ fee award is at the conclusion of

the appellate stages of the litigation, and.that such a deter-

mination should be made in the first instance by the dis-

trict court on the basis of evidence as to the extent and

nature of the services rendered. 399 U.S. at 223.5

Though it is true, as the court of appeals herein noted,

that plaintiffs unsuccessfully argued in this Court that they

should receive an attorneys’ fee award under the bad faith

exception to the established American rule, the subsequent

enactment by Congress of the Civil Rights Attorney’s Fees

5 In Maddrix v. Dize, 153 F.2d 274 (1946), the Fourth Circuit,

in a decision totally at odds with its holding herein, applied the

principle enunciated in the Sprague and Perkins cases to hold that

this Court’s mandate following its decision on the merits of a case

does not preclude the district court’s consideration of a subsequent

application for an attorneys’ fee award.

13

Awards Act of 1976 created an entirely new basis for such

an award. Therefore, this Court’s rejection of plaintiffs’

bad faith contention did not preclude the district court’s

consideration of their motion for a statutory award of

fees, because that matter was outside the scope of this

Court’s mandate. But even if one were to construe this

Court’s decision as a broader holding that plaintiffs were

not entitled to attorneys’ fees under any theory and to

regard the mandate as having a correspondingly broad

scope, that still would not preclude the application of the

Awards Act of 1976 to this case. For the district court

in such circumstances would be obligated to apply the

Act to this case, because “the rule of law expressed by

the mandate had been affected by a subsequently enacted

federal statute.” Banco Nacional de Cuba v. Farr, 383

F.2d 166, 178 (C.A. 2, 1967), cert. denied, 390 U.S. 956.

As the Second Circuit held in the cited case, if a conflict

arises in the course of litigation between the law of the

case and a newly adopted act of Congress, a court is duty-

bound to respect the latter. This obviously follows from

the principle that a court must apply the law in effect at

the time it renders its decision. Bradley v. School Board

of the City of Richmond, supra.®

© Defendants argued in the court of appeals that it would be a

“manifest injustice’ to assess attorneys’ fees against them because

they are private schools with limited funds. The sources and extent

of defendants’ resources are not shown by the record but those

resources have been adequate to enable defendants to conduct this

litigation from the time the complaint was filed and to carry their

appeals through successive stages without once abandoning their

original contention that they were entitled to operate their schools

on a racially discriminatory basis. An award of attorneys’ fees was

requested in the complaint and the propriety of such an award was

litigated at every stage. Although defendants received favorable

14

CONCLUSION

For the reasons stated, this petition for a writ of cer-

tiorari should be granted.

RODERIC V. O. BOGGS

Washington Lawyers’ Committee

for Civil Rights Under Law

733 15th Street, N. W.

Washington, D.C. 20005

ALLISON W. BROWN, JR.

Suite 301

1345 E Street, N. W.

Washington, D.C. 20004

ROBERT M. ALEXANDER

2011 South Glebe Koad

Arlington, Virginia 22204

Attorneys for Plaintiffs.

July 1978.

judicial rulings with respect to the attorneys’ fee issue under the

theories then being advanced, the enactment of the Awards Act of

1976 merely served “to create an additional basis or source for

[defendants] potential obligation to pay attorney’s fees. It does

not impose an additional or unforseeable obligation upon [them] .”

Bradley v. School Board of the City of Richmond, supra, 416 U.S.

at 721. Further, it should be noted that plaintiffs’ claim for at-

torneys’ fees is also against the intervening organization, Southern

Independent School Association, which, the record shows, has

nearly 400 schools affiliated with it and has been an active partici-

pant in the litigation. Although it has been alleged that the associa-

tion is dissolved, under the applicable provisions of the Georgia

corporation statute, plaintiffs’ claims for attorneys’ fees, having

been timely filed, would survive the dissolution. Ga. Code Ann.

§ 22-3119.

la

APPENDIX A

Colin M. GONZALES, infant by his parents, Raymond

Gonzales and Margaret R. Gonzales, and Michael C.

McCrary, infant by Curtis L. McCrary and Sandra

McCrary, Appellants,

Vv.

FAIRFAX-BREWSTER SCHOOL, INC., Russell L.

Runyon, Katheryne E. Runyon and Southern Inde-

pendent School Association, Appellees.

No. 77-1278 1

United States Court of Appeals,

Fourth Circuit.

Argued Nov. 8, 1977.

Decided Jan. 20, 1978.

Roderic V.O. Boggs, Washington Lawyers’ Committee for

Civil Rights Under Law, Washington, D.C. (Allison W. Brown,

Jr., Washington, D.C., Robert M. Alexander, Arlington, Va.,

on brief), for appellants.

Andrew A. Lipscomb, Bethesda, Md., for appellee Fairfax-

Brewster School, Inc.

Louis Koutoulakos, Arlington, Va., for appellees Russell

L. Runyon, Katheryne E. Runyon, d/b/a Bobbe’s Private

School.

Before HAYNSWORTH, Chief Judge, WINTER, Circuit

Judge, and FIELD, Senior Circuit Judge.

2a

FIELD, Senior Circuit Judge:

This is the epilogue to Runyon v. McCrary, 427 U.S. 160,

96 S.Ct. 2586, 49 L.Ed.2d 415 (1976), in which the Su-

preme Court held that private schools are prohibited by the

Civil Rights Act of 1866, 42 U.S.C. § 1981, from denying

admission to individuals on the basis of race. When the

case returned to the district court pursuant to the Supreme

Court’s judgment, counsel for the plaintiffs filed a motion

seeking an award of attorneys’ fees under the Civil Rights

Attorney’s Fees Awards Act of 1976, 42 U.S.C. 8 1988, as

amended, 90 Stat. 2641.! The motion was denied by the

district court and this appeal followed.

A brief history of this litigation is essential to the dispo-

sition of this appeal. The proceedings originated with the

filing of two complaints in the district court on December

19, 1972. The cases were consolidated and on July 27,

1973, the district court issued its decision in which it ruled

in favor of the plaintiffs in both cases. The court ordered

appropriate injunctive relief and awarded compensatory dam-

ages. The district court also held that the plaintiffs were

entitled to attorneys’ fees in the amount of $1,000.00

against each of the defendant schools.

l The amendatory language is as follows:

“In any action or proceeding to enforce a provision of

sections 1981, 1982, 1983, 1985 and 1986 of this title,

title IX of Public Law 92-318, or in any civil action or

proceeding, by or on behalf of the United States of

America, to enforce, or charging a violation of, a provi-

sion of the United States Internal Revenue Code, or title

VI of the Civil Rights Act of 1964, the court, in its dis-

cretion, may allow the prevailing party, other than the

United States, a reasonable attorney’s fee as part of the

costs.”

3a

Upon appeal to this court, the case was heard en banc

and the majority of the court affirmed the district court’s

injunctive order and award of damages.2_ However, we re-

versed the district court’s award of attorneys’ fees, holding

that in the absence of any statutory authorization such an

award was inappropriate under the “private attorney gen-

eral” doctrine, and that the facts did not warrant an award

on the theory that the defendants had displayed bad faith

or obdurate obstinacy.

Upon the petitions of the defendants, as well as the in-

tervenor, the Supreme Corrt granted certiorari and affirmed

the decision of this court upon the principal issues in the

case. In addition, the Court granted the plaintiffs’ cross-

petition for certiorari on the issue of attorneys’ fees, but

rejected the plaintiffs’ contention that they should be

awarded such fees under the bad faith exception to the

established American rule. The judgment of the Supreme

Court was issued on August 11, 1976, and provided, among

other things, that the costs of printing the recoi,, should

be shared equally by the four parties who a9" © eh re-

view in that Court. The judgment was ma) ~» Jerk

of our court who in turn forwarded it to 1 office

of the district court where it was received . August 16,

1976.

The Civil Rights Attorney’s Fees Awards Act of 196

was signed into law on October 19, 1976, and on Novem-

ber 1, 1976, the plaintiffs filed their motion in the district

court for an award of costs and attorneys’ fees. Their mo-

tion noted that the district court had not acted upon the

2 Reported sub nom. McCrary v, Runyon, 515 F.2d 1082

(4 Cir. 1975).

4a

plaintiffs’ request for costs in that court? under 28 U.S.C.

§ 1920, and that the costs awarded to the defendants un-

der the order of the Supreme Court had not been taxed

by the Clerk of the district court as part of that court’s

final judgment. The motion requested that the district

court enter an order settling the costs and awarding attor-

neys’ fees in the amcunt of $53,475.00 as part of the

costs as provided in the 1976 amendment. The district

court denied the request for attorneys’ fees and ruled that

each party should bear its own costs in that court. The

order also provided that the costs assessed against the plain-

tiffs by the Supreme Court should be paid to the defen-

dants as specified in that Court’s judgment.*

{1] The plaintiffs rely primarily upon Bradley v. School

Board of the City of Richmond, 416 U.S. 696, 94 S.Ct. 2006,

40 L.Ed.2d 476 (1974), as well as our decision in Alphin

v. Henson, 552 F.2d 1033 (4 Cir., 1977). However, in our

opinion neither of those cases supports the plaintiffs’ posi-

tion. The issue in Bradley was stated by the Court as fol-

lows:

“The question, properly viewed, then, is not simply

one relating to the propriety of retroactive applica-

3 The amount of costs claimed by the plaintiffs was $153.09 from

Fairfax-Brewster School, Inc., and $162.37 against Bobbe’s School.

4 While the plaintiffs’ motion was pending in the district court,

the defendants filed motions in this court requesting that we require

the plaintiffs to reimburse each defendant for an appropriate share

of the cost of printing the appendix. The order of the district court

expressly stated that it declined to rule on this aspect of the case.

By order entered in this court on January 24, 1977, we directed

that costs for the preparation of the appendix should be shared pro-

portionately by the parties based upon the respective materials sub-

mitted.

Sa

tion of 8 718 to services rendered prior to its enact-

ment, 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.” 416 U.S. at 710, 94 S.Ct.

at 2015.

The award of fees in that case was based upon the well rec- |

ognized “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.” Jd. at 711, 94 S.Ct.

at 2016. Unlike Bradley, in the present case the amend-

ment was not enacted while the appeal was pending, but

was signed into law over two months after the judgment

of the Supreme Court had been filed in the district court.

In the light of this chronology, it is clear that the plaintiffs

are not entitled to the benefit of Bradley’s rationale.

[2] Similarly, our decision in Alphin is inapposite. In

that case the plaintiffs’ claim to attorney’s fees was the sole

subject of the appeal. Our initial decision was adverse to

the plaintiffs, and on June 25, 1976, we stayed our mandate

to permit them to petition for certiorari. The petition for

certiorari was filed in the Supreme Court on August 16,

1976, and on September 30, 1976, the statute authorizing

the award of such fees was enacted. Certiorari was denied

on November 15,1976, and two days thereafter a petition

for rehearing based upon the newly enacted statute was filed

with us. We granted a further stay of our mandate to con-

sider the plaintiffs’ claim. Noting that “[o]ur control over

a judgment of our court continues until our mandate has

issued,” 552 F.2d at 1035, we concluded that our decision

in that case had not become a finality and that, accordingly,

it was appropriate to amend our previous decision to bring

6a

it into conformity with the newly enacted statute. As hereto-

fore noted, in the present case the judgment of the Supreme

Court had been fiied with the Clerk of the district court on

August 16, 1976, over two months prior to the effective date

of the Fees Awards Act of 1976. Further jurisdiction of

the district court was dependent upon the terms of the ap-

pellate mandate, and the court had no authority to reopen

the case for the consideration of attorneys’ fees or to con-

duct any proceedings except those specifically authorized

by the appellate judgment. See DuBuit v. Harwell Enter-

prises, Inc., 540 F.2d 690, 693 (4 Cir. 1976).

[3] While we affirm the denial of attorneys’ fees, we

think the district court acted improperly in directing that

each party should bear its own costs in that court. In its

order of July 27, 1973, the court had awarded such costs

to the plaintiffs, and none of the parties had appealed from

that aspect of the initial judgment order. Since the award

of such costs had become a finality, the district court had

no authority to alter it in any way in carrying out the

judgment of the Supreme Court of the United States. Ac-

cordingly, we reverse the action of the district court in

this respect and remand the case with directions to reinstate

the taxation of costs under 28 U.S.C. § 1920 against the

defendants.

AFFIRMED in part, REVERSED in part, and RE-

MANDED.

7a

APPENDIX B

JUDGMENT

United States Court of Appeals

For the Fourth Circuit

No. 77-1278

Colin M. Gonzales, infant by his

parents, Raymond Gonzales and

Margaret R. Gonzales, and

Michael C. McCrary, infant by

Curtis L. McCrary and Sandra McCrary,

Appellants,

VS.

Fairfax-Brewster School, Inc.,

Russell L. Runyon, Katheryne E.

Runyon and Southern Independent

School Association,

Appellees.

Appeal from the United States District Court for the

Eastern District of Virginia.

This cause came on to be heard on the record from the

United States District Court for the Eastern District of

Virginia, and was argued by counsel.

On consideration whereof, It is now here ordered and ad-

judged by this Court that the judgment of the said District

Court appealed from, in this cause, be, and the same is

hereby, affirmed in part; reversed in part; and the case re-

manded to the United States District Court for the Eastern

8a

District of Virginia, at Alexandria, with directions consistent

with the opinion of this Court filed herewith.

/s/ William K. Slate II

Clerk

[Filed Jan. 30, 1978]

U.S. Court of Appeals

Fourth Circuit

Ae ate — noe nos ET OED

9a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 77-1278

{Filed Mar. 29, 1978]

William K. Slate, II

Clerk

Colin M. Gonzales, infant by his

parents, Raymond Gonzales and

Margaret R. Gonzales, and

Michael C. McCrary, infant by

Curtis L. McCrary and Sandra

McCrary,

Appellants,

versus

Fairfax-Brewster School, Inc.,

Russell L. Runyon, Katheryne E.

Runyon and Southern Independent

School Association,

Appellees.

ORDER

Upon consideration of the appellants’ petition for rehear-

ing and suggestion for rehearing en banc, and no judge hav-

ing requested a poll on the suggestion for rehearing en banc,

It ii ADJUDGED and ORDERED that the petition for

rehearing is denied.

Entered at the direction of Judge Field for a panel consist-

ing of Judge Haynsworth, Judge Winter and Judge Field.

FOR THE COURT:

/s/ William K. Slate, II

Clerk

A True Copy, Teste:

William K. Slate, II, Clerk

By /s/ Emily Rueger

10

‘ lla

APPENDIX D

| pendix before the Fourth Circuit Court of Appeals, the ques-

tion as to who should pay that cost being now before that

Court.

we

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

f V. B. Jr.

ALEXANDRIA DIVISION /s/_ A.

United States District Judge

COLIN M. GONZALES, et al. ) Alexandria, Virginia

Plaintiffs, ) CIVIL ACTION December 14, 1976

V. ) NO. 494-72-A ;

)

FARIFAX-BREWSTER SCHOOL )

INC., )

Defendant. )

MICHAEL C. McCRARY, et al., )

Plaintiffs, ) CIVIL ACTION

V. ) NO. 495-72-A

)

RUSSELL L. RUNYON, et al., )

Defendants. )

ORDER

This matter came on to be heard on December 10, 1976,

on the plaintiffs’ request for taxing of costs, including attor-

neys’ fees, and after hearing argument thereon it is

ORDERED that the plaintiffs’ motion for attorneys’ fees

be denied, and each party shall bear its own costs in this

Court, in the Court of Appeals and in the Supreme Court,

except that the costs assessed against the plaintiffs in the

Supreme Court in the amount of $516.66 shall be deducted

by the defendants from the judgment in favor of plaintiffs

when that judgment is paid, and this Court expressly does

not rule on the question of the payment of cost for the Ap-