Peacock v. DREW MUNICIPAL SEPARATE SCH. DIST., GC 73-20-K.

• Decision Date: 29 June 1977
• Docket Number: No. GC 73-20-K.,GC 73-20-K.
• Citation: 433 F. Supp. 1072
• Parties: Katie Mae Andrews PEACOCK et al., Plaintiffs, v. The DREW MUNICIPAL SEPARATE SCHOOL DISTRICT et al., Defendants.
• Court: U.S. District Court — Northern District of Mississippi

433 F. Supp. 1072

Katie Mae Andrews PEACOCK et al., Plaintiffs, v. The DREW MUNICIPAL SEPARATE SCHOOL DISTRICT et al., Defendants.

No. GC 73-20-K.

United States District Court, N. D. Mississippi, Greenville Division.

June 29, 1977.

Charles V. McTeer, Greenville, Miss., Alma C. Campbell, Greenwood, Miss., for plaintiffs.

Rhonda Copelon, New York City, amicus curiae.

Champ T. Terney, Indianola, Miss., William A. Allain, Jackson, Miss., for defendants.

MEMORANDUM OPINION

KEADY, Chief Judge.

This cause is before the court on plaintiffs' motion for an award of attorney fees, in which plaintiffs contend that such an award is authorized by the Civil Rights Attorneys' Fee Award Act of 1976, 42 U.S.C. § 1988 as amended October 19, 1976, and the teachings of Bradley v. Richmond School Board, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974). A review of the prior proceedings herein is essential to proper disposition of the instant motion.

On February 20, 1973, plaintiffs filed this action challenging defendants' policy prohibiting employment of unwed parents by the Drew Municipal Separate School District. After final evidentiary hearing on May 31, 1973, the court on July 3, 1973, entered final judgment declaring the policy unconstitutional under the Equal Protection and Due Process Clauses of the Fourteenth Amendment, enjoining enforcement of the policy, and granting plaintiffs back pay and other affirmative relief.¹

The Judgment of July 3, 1973 further provided that "The court retains continuing jurisdiction to issue such further and supplementary orders as may be necessary to effectuate this Judgment in accordance with the Memorandum Opinion filed herein."

Defendants subsequently filed timely notice of appeal of the above judgment, and plaintiffs' cross-appealed "insofar as said judgment did not . . . award plaintiff attorneys' fees."² By order of August 17, 1973, the court granted defendants' motion for a stay of the judgment pending final decision on appeal.

The Fifth Circuit, on February 3, 1975, affirmed this court's final judgment, including the denial of plaintiffs' request for an award of attorney's fees. No further stay of the final judgment was sought. Defendants thereafter timely filed a petition for a writ of certiorari, which was granted on October 6, 1975. Plaintiffs chose not to pursue their claim for attorney fees before the Supreme Court.

On May 3, 1976, the writ of certiorari was dismissed as improvidently granted. Three months later, on August 3, 1976, plaintiffs, "desiring to execute upon their judgment," filed a motion for leave to depose the Superintendent of the Drew School District "for the purpose of determining the amount of back pay owed them." By order of August 10, 1976, the court sustained plaintiffs' motion, and after deposing the superintendent, plaintiffs, on September 8, 1976, filed a "Request for Supplemental Relief" seeking amounts certain of back pay.³

On October 19, 1976, the Civil Rights Attorney's Fee Award Act of 1976 (1976 Act) providing for fee awards to successful § 1983 litigants, such as plaintiffs here, was signed into law.⁴ On the basis of this legislation, plaintiffs again requested an award of reasonable attorney fees.⁵

On November 19, 1976, a hearing was held on plaintiffs' request for supplemental relief and an award of attorney fees. At that time the parties resolved the amounts of back pay due plaintiffs, and a consent order reflecting this agreement was entered by the court on December 16, 1976. Disposition of the attorney fee question was withheld pending submission by counsel of briefs on the issue.

The parties agree that the 1976 Act is applicable to actions of this type, and further agree that the Act is to be given retroactive effect in accordance with the holding of Bradley v. Richmond School Board, supra. Indeed, the legislative history of the 1976 Act makes it absolutely clear that the statute is to be given retroactive application in all cases pending, in a Bradley sense, on the date of enactment.⁶

Plaintiffs apparently would have us read Bradley as requiring retroactive application of the 1976 Act to all cases on the court's docket at the time of its enactment, regardless of whether final judgment on all substantive issues had been entered at that time. Bradley, however, is not so expansive. As the Supreme Court phrased the issue there,

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. 416 U.S. at 710, 94 S.Ct. at 2015, 40 L.Ed.2d at 487.

Here, of course, the fee issue, as well as all other substantive issues, had been resolved by this court, the Court of Appeals, and by the Supreme Court (through its dismissal of the writ of certiorari) by the effective date of the 1976 Act.

We view Bradley, and therefore the legislative history of the 1976 Act, as requiring retroactive application of the Act only in those cases in which some "active" issue was pending on the date of its enactment, Rainey v. Jackson State College, 551 F.2d 672, 676 (5 Cir. 1977), rather than as requiring retroactive application to those cases, such as this action, where the only proceedings pending on its effective date were of a supplemental nature, e. g., proceedings to effectuate a prior final judgment.

We interpret "active" issue to mean a substantive claim upon which a district court has not acted, either in the first instance or on remand, or a substantive claim whose disposition by the district court, or Court of Appeals, either is on appeal or is appealable. The mere pendency on the date of enactment of an attorney fees act of supplemental proceedings to effectuate a prior final judgment is not, in our opinion, sufficient to convert an action into such a "pending action" as to warrant an award of attorney fees under such act pursuant to Bradley-type retroactive application of the act. Skouras Theatres Corp. v. R-K-O Corp., 193 F.Supp. 401 (S.D.N.Y.1961), factually distinct from the action sub judice, nevertheless aptly states our reasoning:

Plaintiffs contend that the . . . action continued to be pending as to the appealing defendants until the dates subsequent to the Supreme Court's denial of rehearing when consent decrees were entered against each of them. The argument is without merit. When the Supreme Court denied rehearing there were decrees in force as to these defendants which fully adjudicated the alleged . . violations. The purpose of the consent decrees that followed was merely to provide a method of enforcing the liability which had already been determined. The . . . action thus ceased to be pending against the appealing defendants. . . . when they were denied a rehearing . . .. 193 F.Supp. at 404.

Clearly, the consent decree entered here did nothing more than provide for enforcement of defendants' previously established liability. To hold otherwise would in this case produce a particularly intolerable result. As noted above, this court's final judgment was stayed pending disposition of appeal of the judgment to the Court of Appeals. The Fifth Circuit on February 3, 1975, affirmed our judgment. No further stay was sought. Thus, plaintiffs were free to effectuate their judgment for over one and one-half years prior to enactment of the 1976 Act.

Moreover, if this court were to apply the 1976 Act retroactively on the facts of this case,

it would logically follow that in numerous desegregation cases in this District (some inactive for many years, the Court having retained jurisdiction to enforce its orders) there would logically be legitimate precedent for the prevailing plaintiffs' counsel even now to claim attorneys' fees which the Bench and Bar had heretofore considered not to be allowable.

Scott v. Winston-Salem/Forsyth County Board of Education, 400 F.Supp. 65, 68 (M.D.N.C.1974), aff'd 530 F.2d 969 (4 Cir. 1975). Such a principle would in these cases entitle plaintiffs who succeed in obtaining any supplemental relief in aid of a prior judgment legitimately to claim attorney fees for the entire action without regard to the fact that final judgment on all issues had been entered years before. This court cannot sanction any such result.

Our holding, regardless of plaintiffs' assertions to the contrary, is wholly consistent with prior decisions in this district cited by plaintiffs on retroactive application of statutes authorizing awards of counsel fees, viz., Latham v. Chandler, 406 F.Supp. 754 (N.D.Miss.1976), and Armstead v. Starkville Municipal Separate School District, 395 F.Supp. 304 (N.D.Miss.1975). In Latham, which dealt with retroactive application of 42 U.S.C. § 1973l (e), providing for award of attorney fees in voting rights cases, plaintiffs' attorneys moved for an award of attorney fees on the basis of just-enacted § 1973l (e) after entry of a preliminary injunction and an initial denial of fees, but prior to certification of the case as a class action and entry of final judgment. Pursuant to Bradley v. Richmond School Board, supra, we held that

Because of the law change following our initial refusal to grant attorney fees at the time of the preliminary hearing, we now exercise our discretion to allow an award of attorney fees under the statute. . . . That all professional services were virtually rendered prior to the enactment of the statute does not make the award inequitable, particularly since the case is one in which final relief is yet to be granted.

406 F.Supp. at 756. Thus, at the time of the award in Latham, the issue of attorney fees doubtless was an active issue.

Similarly, Armstead, involving retroactive application of 20 U.S.C. § 1617, providing for fee awards in certain actions to eliminate discrimination in elementary and secondary...