Verrilli v. City of Concord, s. 75-1542
| Decision Date | 11 July 1977 |
| Docket Number | Nos. 75-1542,75-2157,s. 75-1542 |
| Citation | 557 F.2d 664 |
| Parties | Richard L. VERRILLI, Plaintiff-Appellant, Cross-Appellee, v. CITY OF CONCORD et al., Defendants-Appellees, Cross-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Appeal from the United States District Court for the Northern District of California.
MEMORANDUM DECISION AND ORDER
Appellant seeks a belated recall of the mandate in this case. A response in opposition has been filed and considered. The case is reported at 548 F.2d 262 (1977). The sequence of principal events leading to this posture is as follows:
This case was argued and submitted on September 8, 1976.
The opinion was filed January 3, 1977, and in Part III thereof dealing with a district court award of attorney's fees (548 F.2d at 266), against the City of Concord we remanded for a determination of "the existence or nonexistence of bad faith", basing our decision on Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S. Ct. 1612, 44 L. Ed. 2d 141 (1975), which held that the private attorney general theory for an award of attorney's fees could not be justified.
The Civil Rights Attorney's Fees Act of 1976 (Act) became law on October 19, 1976. Public Law 94-559, 90 Stat. 2641, 1965 U.S.Code Cong. & Ad.News, 42 U.S.C. 1988. This Act vested discretion in the district court to award attorney's fees in civil rights cases.
None of the parties brought this Act to the attention of this panel while the appeal was pending.
On February 2, 1977 (reh. den. March 28, 1977), this court decided Stanford Daily v. Zurcher, 550 F.2d 464. In accordance with clear legislative intendment the Act was held to apply to all cases pending on appeal on October 19, 1976.
After conducting hearings on remand in this case the district court found no evidence of "bad faith such as to justify an award of attorney's fees", and denied appellant's motion for attorney's fees (Order of May 6, 1977). The district court declined to invoke the Civil Rights Attorney's Fees Act of 1976 and the holding of this court in Stanford Daily, stating, ". . . this Court is bound by the terms of the remand in this case and it remains with the Ninth Circuit, not this Court, to reconsider the holding that there is no statutory authorization for an award of attorney's fees."
Because of an overpowering sense of fairness and a firm belief that this is the exceptional case requiring recall of the mandate in order to prevent an injustice, we act to free the hand of the district court from any strictures of the "law of the case" on the former remand. Aerojet-General Corp. v. American Arbitration Ass'n, 478 F.2d 248 (9th Cir. 1975); Greater Boston Television Corp. v. F.C.C., 149 U.S.App.D.C. 322, 463 F.2d 268 (1971). Our prior ruling was not merely an erroneous one, Powers v....
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Carrington v. U.S.
...Cir.1988) (quoting Aerojet-Gen. Corp. v. Am. Arbitration Ass'n, 478 F.2d 248, 254 (9th Cir.1973)); see also Verrilli v. City of Concord, 557 F.2d 664, 665 (9th Cir.1977) (per curiam). I agree with Judge Callahan that we may only recall the mandate "in extraordinary circumstances." Calderon ......
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Thompson v. Calderon
...firm belief that this is the exceptional case requiring recall of the mandate in order to prevent an injustice." Verrilli v. City of Concord, 557 F.2d 664, 665 (9th Cir.1977). We believe just as strongly that it is necessary to do so in order to protect the integrity of our process. For all......
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Burgess v. Premier Corp.
...618 P.2d 67 (1980). Accord Bradley v. Richmond School Board, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974); Verrilli v. City of Concord, 557 F.2d 664 (9th Cir.1977); Stanford Daily v. Zurcher, 550 F.2d 464 (9th Cir.1977) rev'd. on other grounds, 436 U.S. 547, 98 S.Ct. 1970, 56 L.Ed.2d ......
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Nevius v. Sumner
...firm belief that this is the exceptional case requiring recall of the mandate in order to prevent an injustice." Verrilli v. City of Concord, 557 F.2d 664, 665 (9th Cir.1977); see also Zipfel, 861 F.2d at 567. Thus we have recalled a mandate when a subsequent "decision of the Supreme Court ......
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REEXAMINING RECALL OF MANDATE: LIMITATIONS ON THE INHERENT POWER TO CHANGE FINAL JUDGMENTS.
...a showing of either type of injustice--harm or incongruity of results--is sufficient to recall mandate); Verrilli v. City of Concord, 557 F.2d 664, 665 (9th Cir. 1977) (treating injustice as a sufficient factor justifying (173.) See 523 U.S. 538, 558 (1998) (balancing the courts' need "to r......