Bradley v. School Board of the City of Richmond

No. 72-1322

Argued December 5, 1973

Decided May 15, 1974

416 U.S. 696

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Syllabus



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 [416 U.S. 697] 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.



(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.



(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.



(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.



(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.



(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.



(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 [416 U.S. 698] 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.



(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.



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. BLACKMUN, J., lead opinion



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

[416 U.S. 699] 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. 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, 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 [416 U.S. 700] 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 submitted by the Board, and

agreed to by the petitioners.  [416 U.S. 701] 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



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 [416 U.S. 702]

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. [416

U.S. 703]



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.  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. 

On April 5, 1971, [416 U.S. 704] 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).



Meanwhile, the Board had moved for leave to make the school boards and

governing bodies of adjoining Chesterfield [416 U.S. 705] 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.  In due course, the

court awarded counsel fees in the amount of $43,355 for services

rendered [416 U.S. 706] 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.  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.  Applying the test enunciated by the Fourth Circuit [416

U.S. 707] 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.{10} [416 U.S. 708]



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{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 [416 U.S. 709] 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.{12}  The Court of Appeals, sitting en banc,

then heard argument as to the applicability of  718 to this and other

litigation.{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 [416 U.S. 710] 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 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, [416 U.S. 711] and its effect on a final

judgment{14} under collateral attack,{15} on the other hand.  Linkletter

v. Walker, 381 U.S. 618, 627 (1965).  We are concerned her 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, [416 U.S. 712] 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. Id. at 110.{16}



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 [416 U.S. 713] 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.{17} [416 U.S. 714]



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 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).{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 [416 U.S.

715] was to be applied to pending cases or to events that had transpired

prior to its issuance,{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 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.{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,{21} we [416 U.S. 716] do note that, insofar

as the legislative history of  718 is supportive of either position,{22}

it would seem to provide at least implicit support for the application

of the statute to pending cases.{23} B



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 [416 U.S. 717] States, 376 U.S. 149 (1964).{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 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.

[416 U.S. 718]



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.{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.{26}  Brown v. Board of Education,

347 U.S. at 494. [416 U.S. 719]



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

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 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."{27} [416 U.S. 720]



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 160;

Claridge Apartments Co. v. Commissioner, 323 U.S. 141, 164 (1944); Union

Pacific R. Co. v. Laramie Stock Yards Co., 231 U.S. 190, 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 [416 U.S.

721] the Authority and petitioner remains inviolate. 393 U.S. at 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. C



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 [416 U.S. 722] `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.{28}  Since most school cases can be

expected [416 U.S. 723] 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   54.70(5) (1974 ed.).  Further, the resolution of the fee

issue may be a matter of some complexity and require, as here, the

taking of evidence and briefing.  It would therefore be undesirable to

delay the implementation of a desegregation plan in order to resolve the

question of fees simultaneously.  The District Court properly chose not

to address itself to the question of the award until after it had

approved the noninterim plan for achievement of the unitary school

system in Richmond on April 5, 1971.



We are in agreement, however, with the dissenting judge of the Court of

Appeals when he observed, 472 F.2d at 337, that the award made by the

District Court for services from March 10, 1970, to January 29, 1971,

[416 U.S. 724] did not precisely fit  718's requirement that the

beneficiary of the fee order be "the prevailing party."  In January,

1971, the petitioners had not yet "prevailed," and realistically did not

do so until April 5.  Consequently, any fee award was not appropriately

to be made until April 5.  Thereafter, it may include services at least

through that date.  This, of course, will be attended to on remand.



Accordingly, we hold that  718 is applicable to the present situation,

and that, in this case, the District Court, in its discretion, may allow

the petitioners reasonable attorneys' fees for services rendered from

March 10, 1970, to or beyond April 5, 1971.  The judgment of the Court

of Appeals is vacated, and the case is remanded for further proceedings

consistent with this opinion.



It is so ordered.



MR. JUSTICE MARSHALL and MR. JUSTICE POWELL took no part in the

consideration or decision of this case. Footnotes BLACKMUN, J., lead

opinion (Footnotes)



1. See 317 F.2d 429 (CA4 1963).  Before trial, one pupil plaintiff was

admitted to the school of his choice, and the court ordered admission of

the remaining 10.  The District Court found that, in general, during the

1961-1962 school year, pupil assignments in Richmond were being made on

the basis of dual attendance zones; that promotions were controlled by a

"feeder" system whereby pupils initially assigned to Negro schools were

promoted routinely only to Negro schools; and that, in the handling of

some transfer requests from Negro pupils, the students were required to

meet criteria to which white students of the same scholastic aptitude

were not subject.  The court declined, however, to grant general

injunctive relief, and ordered only the admission of the 10 pupils.



The Court of Appeals reversed in part.  It held that not only were the

individual minor plaintiffs entitled to relief, but that they were

entitled to an injunction, on behalf of others of the class they

represented and who were similarly situated, against the continuation of

the discriminatory system and practices that were found to exist.  Id.

at 48.



2. Under the approved plan, the Board undertook steps "to eliminate a

dual school system in the assignment of pupils" and to assure that

opportunities were provided "for white children and Negro children to

associate on equal terms in the public schools."  App. 21a-22a. 

Generally, the plan permitted any child to attend any school in the city

at his proper grade.  The specific steps to be taken included (a) action

to correct inequality in enrollment in relationship to capacity where

schools in close proximity to each other had significant enrollment

differences, (b) efforts to acquaint pupils in all schools with

opportunities in other schools, and (c) the planning and creation of

city-wide centers, including workshops, institutes, and seminars,

serving pupils from all areas of the city.  Id. at 22a-23a.  In

addition, the Board undertook to insure that the pattern of assignment

of teachers and other professional staff among the various schools of

the system will not be such that schools are identifiable as intended

for students of a particular race, color or national origin, or such

that teachers or other professional staff of a particular race are

concentrated in those schools where all, or the majority, of the

students are of that race. Id. at 20a.  Finally, the Board undertook to

insure that the program for construction of new schools or additions to

existing schools would "not be designed to perpetuate, maintain, or

support racial segregation."  Id. at 23a.



3. The court rejected the petitioners' plan for utilizing contiguous

zoning and pairing, satellite zoning, and noncontiguous pairing,

together with the use of school and public transportation, because it

felt that the lack of immediately available transportation facilities

would preclude the plan's operation for the opening of the 1970-1971

school year.  It noted that it otherwise found the plan to be

reasonable, and, if adopted, that it would result in a unitary system. 

317 F.Supp. 555, 572 and 576 (ED Va.1970).  The court suggested that

Richmond could not be desegregated without employment of techniques

suggested by the petitioners, and observed, "It would seem to the Court

highly reasonable to require that the defendant school board take

reasonably immediate steps toward this end."  Id. at 575.



4. The interim plan included contiguous and satellite zoning, pairing,

and some public transportation, principally of those pupils who were

indigent.  The problems that continued to concern the court were, most

importantly, the fact that, under the plan, a large number of the

district's elementary students would continue to attend schools that

would be 90% or more Negro, while, at the same time, four elementary

schools would remain all white; in addition, two high schools and

certain secondary schools would continue to be racially identifiable. 

Id. at 572-576.



5. Under Plan I, only proximal geographic zoning was to be used in

making pupil assignments.  This meant simply that a pupil would be

assigned to the school nearest his home without regard to the resulting

racial composition of that school.  Although recognizing the

desirability of neighborhood schools, the court rejected this plan in

view of the existence of Richmond housing patterns previously determined

to have been fostered by governmental action.  At the elementary and

middle levels, this would have resulted in over half the students' being

assigned to schools that were racially identifiable; at the high school

level, almost 39% of the district's white pupils would have been

isolated in one 97% white school.  325 F.Supp. 828, 833 (ED Va.1971).



Plan II, which the Board most actively supported, was held unacceptable

in that it embraced a continuation of the 1970-1971 interim plan and did

little to integrate the elementary schools.  The plan involved the use

of zoning, as did Plan I, and contiguous pairing whereby schools in

adjoining zones would have been consolidated.  Id. at 834.



Plan III, which the court ordered into effect, called for extensive

busing of students, proximal geographic zoning, clusters, satellites,

and faculty racial balance.  In addition, the elementary, middle and

high schools were to have a minority-majority student ratio under which

each group's projected enrollment in a particular school was to be at

least half of the group's projected city-wide ratio.  Id. at 834-844.



The court also rejected the petitioners' plan, finding that Plan III

resulted in "a narrower spread" of minority-majority student ratios in

the various schools.  Id. at 844-846.



6. Meanwhile, the District Court (a) on January 8, 1971, denied a motion

made by some of the defendants that the judge disqualify himself because

of personal bias, 324 F.Supp. 439 (ED Va.1971); (b) on January 29,

denied the petitioners' motion to order implementation of their proposed

plan, and also the Board's motion to modify the existing injunction

restraining it from undertaking any new construction planning, 324

F.Supp. 456 (ED Va.1971); and (c) on February 10, denied a motion for

summary judgment as to certain defendants with respect to costs, fees,

and damages, 324 F.Supp. 401 (ED Va.1971).  See also 315 F.Supp. 325 (ED

Va.1970); 51 F.R.D. 139 (ED Va.1970).



7. Petitioners initially suggested $46,820 in fees and $13,327.56 in

expenses, a total of $60,147.56.  App. 94a-95a.



8. The court discussed, 53 F.R.D. 28, 34-36 (ED Va.1971), but did not

rely on, the "common fund" theory under which an individual litigant's

success confers a substantial benefit on an ascertainable class and the

exercise of the court's equitable discretion to allow a fee results in

spreading the cost the litigant has incurred among those who have

benefited by his efforts.  See Trustees v. Greenough, 105 U.S. 527

(1882); Sprague v. Ticonic National Bank, 307 U.S. 161 (1939).



The court felt, however, that there were other grounds on which an award

of counsel fees could be based.  It referred to Mills v. Electric

Auto-Lite Co., 396 U.S. 375 (1970), where this Court, recognizing the

rule that attorneys' fees are not ordinarily recoverable as costs,

nonetheless noted that exceptions to this rule existed "for situations

in which overriding considerations indicate the need for such a

recovery."  Id. at   There, the Court approved an award of fees to

successful shareholder plaintiffs in a suit to set aside a corporate

merger accomplished through the use of a misleading proxy statement, in

violation of  14(a) of the Securities Exchange Act of 1934, 15 U.S.C. 

78n(a).  It was said: The fact that this suit has not yet produced, and

may never produce, a monetary recovery from which the fees could be paid

does not preclude an award based on this rationale. 396 U.S. at 392. 

See also Hall v. Cole, 412 U.S. 1 (1973).



9. See Brewer v. School Board of the City of Norfolk, 456 F.2d 943,

951-952 (CA4), cert. denied, 406 U.S. 933 (1972); Nesbit v. Statesville

City Board of Education, 418 F.2d 1040, 1043 (CA4 1969); Williams v.

Kimbrough, 415 F.2d 874, 875 (CA5 1969), cert. denied, 396 U.S. 1061

(1970); Rolfe v. County Board of Education of Lincoln County, 391 F.2d

77, 81 (CA6 1968); Clark v. Board of Education of Little Rock School

District, 369 F.2d 661, 670-671 (CA8 1966); Griffin v. County School

Board of Prince Edward County, 363 F.2d 206 (CA4), cert. denied 385 U.S.

960 (1966); Bell v. School Board of Powhatan County, 321 F.2d 494, 500

(CA4 1963).



10. The District Court stated: At each stage of the proceedings the

School Board's position has been that, given the choice between

desegregating the schools and committing a contempt of court, they would

choose the first, but that, in any event, desegregation would only come

about by court order. *    *    *    *



It is no argument to the contrary that political realities may compel

school administrators to insist on integration by judicial decree, and

that this is the ordinary, usual means of achieving compliance with

constitutional desegregation standards.  If such considerations lead

parties to mount defenses without hope of success, the judicial process

is nonetheless imposed upon, and the plaintiffs are callously put to

unreasonable and unnecessary expense. 53 F.R.D. at 39.



11. Title 42 U.S.C.  2000a-3(b) authorizes an allowance of a reasonable

attorney's fee to a prevailing party, other than the United States, in

an action under the public accommodation subchapter of the Civil Rights

Act of 1964.  Similarly.  42 U.S.C.  2000e-5(k) authorizes an allowance

of a reasonable attorney's fee to a prevailing party, other than the

Equal Employment Opportunity Commission or the United States, in an

action under the equal employment opportunity subchapter of that Act.



12. 1617.  Attorney fees.



Upon the entry of a final order by a court of the United States against

a local educational agency, a State (or any agency thereof), or the

United States (or any agency thereof), for failure to comply with any

provision of this chapter or for discrimination on the basis of race,

color, or national origin in violation of title VI of the Civil Rights

Act of 1964, or the fourteenth amendment to the Constitution of the

United States as they pertain to elementary and secondary education, the

court, in its discretion, upon a finding that the proceedings were

necessary to bring about compliance, may allow the prevailing party,

other than the United States, a reasonable attorney's fee as part of the

costs.



13. The fee issue had been argued in the Court of Appeals on March 7,

1972.  The Education Amendments of 1972 were approved by the President

on June 23.  The argument before the en banc court took place on October

2.



14. By final judgment, we mean one where "the availability of appeal"

has been exhausted or has lapsed, and the time to petition for

certiorari has passed.  Linkletter v. Walker, 381 U.S. 618, 622 n. 5

(1965).



15. In Chicot County Drainage District v. Baxter State Bank, 308 U.S.

371, 374 (1940), the Court noted that the effect of a subsequent ruling

of invalidity on a prior final judgment under collateral attack is

subject to no fixed "principle of absolute retroactive invalidity," but

depends upon consideration of "particular relations . . . and particular

conduct."  Questions of rights claimed to have become vested, of status,

of prior determinations deemed to have finality and acted upon

accordingly, of public policy in the light of the nature both of the

statute and of its previous application demand examination. Ibid.  And

in Linkletter, it was observed: Once the premise is accepted that we are

neither required to apply, nor prohibited from applying, a decision

retrospectively, we must then weigh the merits and demerits in each case

by looking to the prior history of the rule in question, its purpose and

effect, and whether retrospective operation will further or retard its

operation. 381 U.S. at 629.



See Note, Prospective Overruling and Retroactive Application in the

Federal Courts, 71 Yale L.J. 907 (1962); Currier, Time and Change in

Judge-Made Law:  Prospective Overruling, 51 Va.L.Rev. 201 (1965).



16. Schooner Peggy concerned a condemnation following the seizure of a

French vessel by an American ship.  The trial court found that the

vessel was within French territorial waters at the time of seizure and,

hence, was not a lawful prize.  On appeal, the Circuit Court reversed,

holding that the vessel, in fact, was on the high seas.  A decree was

entered accordingly.  While the case was pending on appeal to this

Court, a convention with France was entered into providing in part:

Property captured, and not yet definitively condemned, or which may be

captured before the exchange of ratifications . . . shall be mutually

restored. 1 Cranch at 107.  This Court reversed, holding that it must

apply the terms of the convention despite the propriety of the Circuit

Court's decision when it was rendered, and that the vessel was to be

restored, since, by virtue of the pending appeal, it had not been

"definitively condemned," id. at 108.



17. In United States v. Chambers, 291 U.S. 217 (1934), the Court held

that pending prosecutions, including those on appeal, brought pursuant

to the National Prohibition Act were to be dismissed in view of the

interim ratification of the Twenty-first Amendment, absent inclusion of

a saving clause.  In Carpenter v. Wabash R. Co., 309 U.S. 23 (1940), the

Court, in reliance on Schooner Peggy, held that an amendment to the

Bankruptcy Act, effected while the case was pending on petition for writ

of certiorari, was to be given effect.  The amendment, however, provided

explicitly that it was applicable to railroad receiverships then pending

in any United States court.  In Vandenbark v. Owens-Illinois Glass Co.,

311 U.S. 538 (1941), again in reliance on Schooner Peggy, it was held

that a federal appellate court, in diversity jurisdiction, must follow a

state supreme court decision changing the applicable state law

subsequent to the decision in the federal trial court.  In Ziffrin, Inc.

v. United States, 318 U.S. 73 (1943), the Court held that an amendment

to the Interstate Commerce Act, made after the hearing upon an

application for a permit to continue contract carrier operations, was to

be given effect.  "A change in the law between a nisi prius and an

appellate decision requires the appellate court to apply the changed

law."  Id. at 78.  In United States v. Alabama, 362 U.S. 602 (1960), the

District Court had dismissed an action under the Civil Rights Act of

1957, 42 U.S.C.  1971(c), brought by the United States against the State

of Alabama and others, and did so with respect to Alabama on the ground

that the Act did not authorize the action against the State.  While the

case was pending after a grant of certiorari, the Civil Rights Act of

1960, 74 Stat. 86, was passed, expressly authorizing an action of that

kind against a State.  The Court applied the new statute without

discussion of the legislative history, and remanded the case with

instructions to reinstate the action.



See also Freeborn v. Smith, 2 Wall. 160 (1865); Moores v. National Bank,

104 U.S. 625 (1882), where a state statute of limitations was construed

by the State Supreme Court in a way contrary to the construction given

theretofore by the lower federal court, and this Court followed the

later construction; Stephens v. Cherokee Nation, 174 U.S. 445 (1899),

where the Court upheld a federal statute, containing retrospectivity

language and conferring jurisdiction upon this Court over cases on

review of actions of the Dawes Commission, enacted after rulings below

that decrees of the courts in the Indian territories were final;

Dinsmore v. Southern Express Co., 183 U.S. 115 (1901), where the Court,

relying upon Schooner Peggy, applied a statute, enacted while the case

was pending on certiorari, to affirm the judgment of the lower court;

Watts, Watts & Co. v. Unione Austriaca, 248 U.S. 9 (1918); Dorchy v.

Kansas, 264 U.S. 286, 289 (1924); Missouri ex rel. Wabash R. Co. v.

Public Service Comm'n, 273 U.S. 126 (1927); Sioux County v. National

Surety Co., 276 U.S. 238, 240 (1928); Patterson v. Alabama, 294 U.S.

600, 607 (1935).



18. The Supreme Court of North Carolina held that, since all "critical

events" had occurred prior to the date of the circular, "[t]he rights of

the parties had matured, and had been determined before the directive

was issued."  271 N.C. at 470, 157 S.E.2d at 149.



19. In our first Thorpe opinion, however, we did note: While the

directive provides that certain records shall be kept commencing with

the date of its issuance, there is no suggestion that the basic

procedure it prescribes is not to be followed in all eviction

proceedings that have not become final. Thorpe v. Housing Authority of

the City of Durham, 386 U.S. 670, 673 (1967).



20. The Fourth Circuit has declined to apply  718 to services rendered

prior to its enactment on the ground that legislation is not to be given

retrospective effect to prior events unless Congress has clearly

indicated an intention to have the statute applied in that manner.

Thompson v. School Board of the City of Newport News, 472 F.2d 177, 178

(1972).  The Fifth Circuit has done the same.  Johnson v. Combs, 471

F.2d 84, 86 (1972); Henry v. Clarksdale Municipal Separate School Dist.,

480 F.2d 583, 585 (1973).



21. Where Congress has expressly provided, or the legislative history

had indicated, that legislation was to be given only prospective effect,

the courts, in the absence of any attendant constitutional problem,

generally have followed that lead.  See, for example, Goldstein v.

California, 412 U.S. 546, (1973); United States v. Thompson, 356 F.2d

216, 227 n. 12 (CA2 1965), cert. denied, 384 U.S. 964 (1966).



22. In Johnson v. Combs, the Fifth Circuit characterized the legislative

history of  718 as "inconclusive," 471 F.2d at 87.  In Thompson v.

School Board of the City of Newport News, the Fourth Circuit rejected

the view that the legislative history could be read to support the

applicability of  718 to services rendered prior to its effective date,

but did not find any explicitly stated legislative intent to the

contrary.  472 F.2d at 178.



23. The legislation that ultimately resulted in the passage of  718 grew

out of a bill that would have provided for the establishment of a $15

million federal fund from which successful litigants in school

discrimination cases would be paid a reasonable fee "for services

rendered, and costs incurred, after the date of enactment of this Act." 

S. 683,  11(a), 92d Cong., 1st Sess. (1971) (emphasis supplied).  The

bill was reported out of the Senate Committee on Labor and Public

Welfare as S. 1557, with the relevant clause intact in  11.  See S.Rep.

No. 92-61, pp. 55-56 (1971).  The section, however, was stricken in the

Senate, 117 Cong.Rec. 11338-11345 (1971), and the present language of 

718 took its place.  Id. at 11521-11529 and 11724-11726.  The House,

among other amendments, deleted all mention of counsel fees.  In

conference, the fee provision was restored.  S.Rep. No. 92-798, p. 143

(1972).



Thus, while there is no explicit statement that  718 may be applied to

services rendered prior to enactment, we are reluctant specifically to

read into the statute the very fee limitation that Congress eliminated.



24. In Greene, the Court held that a claimant's right to recover lost

earnings had become final as a result of the prior decision that the

claimant had been wrongfully discharged, Greene v. McElroy, 360 U.S. 474

(1959), and of the District Court's order on remand.  Accordingly, the

Court ruled that his rights had matured under an earlier Department of

Defense regulation, and declined to give retroactive effect to a new

regulation that took effect while the claim was being processed.  The

inequity of a contrary holding was stressed by the Court:



In a case such as the present, where the Government has acted without

authority in causing the discharge of an employee without providing

adequate procedural safeguards, we should be reluctant to conclude that

a regulation, not explicitly so requiring, conditions restitution on a

retrospective determination of the validity of the substantive reasons

for the Government action -- reasons which the employee was not afforded

an adequate opportunity to meet or rebut at the time of his discharge.

376 U.S. at 162.  As noted, the Court, in Thorpe v. Housing Authority of

the City of Durham, 393 U.S. 268 (1969), characterized Greene as an

exception to the general rule of Schooner Peggy, "made to prevent

manifest injustice."  Id. at 282, and n. 43.



25. [F]rom the beginning, the resources of opposing parties have been

disproportionate.  Ranged against the plaintiffs have been the legal

staff of the City Attorney's office and retained counsel highly

experienced in trial work. . . .  Few litigants -- even the wealthiest

-- come into court with resources at once so formidable and so suited to

the litigation task at hand. . . .



Moreover, this sort of case is an enterprise on which any private

individual should shudder to embark. . . .  To secure counsel willing to

undertake the job of trial . . . necessarily means that someone --

plaintiff or lawyer -- must make a great sacrifice unless equity

intervenes. 53 F.R.D. at 40.



26. See Dept. of Health, Education, and Welfare, J. Coleman et al.,

Equality of Educational Opportunity (1966); United States Commission on

Civil Rights, Racial Isolation in the Public Schools (1967).  See also

Trafficante v. Metropolitan Life Insurance Co., 409 U.S. 205 (1972).



27. It is particularly in the area of desegregation that this Court in

Newman and in Northcross recognized that, by their suit, plaintiffs

vindicated a national policy of high priority.  Other courts have given

explicit and implicit recognition to the priority placed on

desegregation litigation by the Congress.  See Knight v. Auciello, 453

F.2d 852, 853 (CA1 1972), and Lee v. Southern Home Sites Corp., 444 F.2d

143, 145 (CA5 1971) (housing); Johnson v. Combs, 471 F.2d at 86

(schools); Miller v. Amusement Enterprises, Inc., 426 F.2d 534, 537-538

(CA5 1970) (public accommodation); Cooper v. Allen, 467 F.2d 836, 841

(CA5 1972) (employment).



28. Since the finality of these orders is not contested, we are not

called upon to construe the finality language as it appears in  718. 

The only court that has dealt with the issue under this statute has held

that the most suitable test for determining finality is appealability

under 28 U.S.C.  1291.  See Johnson v. Combs, 471 F.2d at 87.



This Court has been inclined to follow a "pragmatic approach" to the

question of finality.  Brown Shoe Co. v. United States, 370 U.S. 294,

306 (1962).  And we have said that a final decision, within the meaning

of  1291, "does not necessarily mean the last order possible to be made

in a case."  Gillespie v. United States Steel Corp., 379 U.S. 148, 152

(1964); see Cohen v. Beneficial Loan Corp., 337 U.S. 541, 545 (1949).



Without wishing affirmatively to construe the statute in detail in the

absence of consideration of the issue by the lower courts, we venture to

say only that the entry of any order that determines substantial rights

of the parties may be an appropriate occasion upon which to consider the

propriety of an award of counsel fees in school desegregation cases. 

See C. Wright, Federal Courts  101 (2d ed.1970).

