Rebecca E. Henry v. Clarksdale Municipal Separate School District , 579 F.2d 916 ( 1978 )

PER CURIAM:

This is the fifth time this case has been before the Court in some form.¹ In 1964, the plaintiffs initially filed suit, seeking the elimination of racial segregation in the Clarksdale Municipal Separate School District, being the first desegregation case filed in the Northern District of Mississippi. The School District proposed to eliminate school segregation by dividing the district into attendance zones. At the time, this was a unique proposal for a Mississippi school district, for most districts were urging the acceptance of “freedom of choice” plans. The first three appeals were concerned with substantive issues determining the type desegregation plan to be implemented. In the fourth appeal we addressed the issue of providing bus transportation for children. Now, we are compelled to decide whether certain attorneys fees are due the plaintiffs.

Throughout the early history of this litigation, the plaintiffs made no mention of attorneys fees. Further, no time records were kept of attorney hours expended. The first request for fees was not tendered until the last appeal. We then ordered:

[T]he district court upon the entry of a final order in this case, is directed to grant appellees’ request for reasonable attorneys’ fees incurred since July 1, 1972. The district court shall also grant a hearing to determine whether or not the appellants’ actions were carried out in an “unreasonable and obdurately obstinate” manner in the years preceding July 1, 1972, so as to entitle appellees to be awarded reasonable attorneys’ fees for services before that date.

Henry v. Clarksdale Municipal Separate School District, 5 Cir. 1973, 480 F.2d 583, 585-86 (Clarksdale IV). The District Court assessed fees for post-July 1, 1972, legal services, and those fees have been paid.

The plaintiffs argued that they are also entitled to fees for efforts prior to July 1, 1972, because the defendants had acted unreasonably and stubbornly throughout the entire litigation. The District Court [Judge Ready] disagreed. Rather, it found as a fact that the defendants had not acted in an “unreasonable and obdurately obstinate” manner during the course of desegregation. Such a finding of fact may be overturned only if the record reveals that the finding was clearly erroneous. Rule 52, F.R.Civ.P. Our appraisal of the record shows that the District Court had ample reasons to support his finding. Thus no fees were due the plaintiffs for litigation before July 1, 1972, judged by the standard established in our order reported at 480 F.2d 585-86.

Plaintiffs urge, however, that attorneys fees for services rendered during the entire litigation should be awarded pursuant to Section 718 of the Education Amendments Act of 1972, 20 U.S.C.A. § 1617.² Plaintiffs say that because the case was pending before the District Court at the time § 718 was passed, fees should be awarded retroactively to the beginning of the litigation. Bradley v. School Board of City of Richmond, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974).

At the time § 718 was enacted, all definitive or substantive orders of this Court and the District Court for desegregating the Clarksdale public schools as to students, faculty, staff, and services had been entered and were being complied with. There were no pending appeals of any sort. Moreover, when § 718 was enacted, no motion had been filed for attorneys fees which had not been disposed of, nor had such a claim ever been made. The only District Court order after the passage of § 718 was to require that bus transportation be provided ■ by the School District, pursuant to plaintiffs’ motion. No active issues were present before the motion for bus transportation. The question presented to us is whether a supplemental motion, filed many months after all other issues had been decided and no appealable orders remained, reopens the entire litigation for the purpose of allowing attorneys fees under § 718. We believe that it does not.

In Bradley v. School District of City of Richmond, supra, the Supreme Court held that § 718 was applicable to litigation predating, but pending on appeal on, the effective date of the statute unless the award would cause “manifest injustice”. Thompson v. Madison County Board of Education, 5 Cir. 1974, 496 F.2d 682, 690. The opinion further stated that the language of § 718 gives implicit support for applying it to all pending cases. Bradley v. School District of City of Richmond, supra, 416 U.S. at 716, 94 S.Ct. at 2018. To apply § 718 retroactively, a case must have an “active” issue pending on the date of its enactment, see Rainey v. Jackson State College, 5 Cir. 1977, 551 F.2d 672, 676.

Since most school cases involve relief of an injunctive nature, district courts will maintain jurisdiction long after determining the issues in controversy. “The ultimate approach to finality must be an individual and pragmatic one. Such a matter should be committed to the determination of the trial court.” Johnson v. Combs, 5 Cir. 1972, 471 F.2d 84, 87.

As we read it, the District Court held that the issues of the original desegregation suit, filed in 1964, had been finally adjudicated before § 718 was passed. In other words, no active issue was pending.

We believe that Bradley, correctly read, requires the existence of an issue actively pending in the District Court, or unsettled on appeal, when § 718 took effect if that legislation is to operate retroactively.

The present motion for attorneys fees was not filed until January 10, 1975, followed by a more formally constructed motion in October. This did not, in our opinion, reactivate the whole case, from the beginning, so as to justify retroactive application of § 718.

If, however, we are mistaken in this, there is yet another factor to consider. Judge Ready found that “it would be most unjust and inequitable to assess the Board with liability for legal services from 1964 to the Fifth Circuit’s initial ruling in 1969”.

He further found, “We are not persuaded that at this late date there is a reliable factual basis for allowing counsel fees for services remotely rendered”.

He went on to say, “[I]t would be manifestly unjust to allow any sum for legal services asserted by Professor Bell”.

He concluded, “Hence, we feel very strongly that in the 1964-69 period it would be improper to assess the school board with plaintiff’s counsel fees”.

In and of itself, this disposes, correctly, we think, of any claim for attorneys’ fees prior to 1969.

This leaves only the matter of fees, claimed by Mr. Leventhal, from 1969 to July 1, 1972. If such fees were allowable, the Court found that they should be fixed at the sum of $8,500. He did not find that it would be unjust or inequitable to order the payment of this fee. Its denial rests upon the original premise, first discussed ante. It necessarily follows that in any event the Clarksdale Municipal Separate School District should not be liable for more than $8,500 and this sum would be due Mr. Leventhal.

Judge Ready’s resume of this litigation, together with his reasoning that the plaintiffs were not entitled to attorneys’ fees prior to 1972, deserve to be annexed to this opinion, which will be done.

The judgment of the District Court is

AFFIRMED.

1 . Henry v. Clarksdale Municipal Separate School District, 5 Cir. 1969, 409 F.2d 682, cert. denied, 396 U.S. 940, 90 S.Ct. 375, 24 L.Ed.2d 242 (Clarksdale I); Henry v. Clarksdale Municipal Separate School District, 5 Cir. 1970, 425 F.2d 698 (Clarksdale II); Henry v. Clarksdale Municipal Separate School District, 5 Cir. 1970, 433 F.2d 387 (Clarksdale III); and Henry v. Clarksdale Municipal Separate School District, 5 Cir. 1973, 480 F.2d 583 (Clarksdale IV).

2 . That statute provides:

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 cost.