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
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,
After the required hearing, the District Court, on March 30, 1966, approved a revised "freedom of choice" plan
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 non-racial 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
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.
The Board then submitted three other desegregation plans. Hearings were held on these and on still another plan submitted by the petitioners.
Meanwhile, the Board had moved for leave to make the school boards and governing bodies of adjoining Chesterfield
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).
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.
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.
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
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 (1970 ed., Supp. II), grants authority to a federal court to award a reasonable attorney's fee when appropriate in a school desegregation case.
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 non-interim 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,
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):
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
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.
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
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.
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."
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
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.
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
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.
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,
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.
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 438.
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 citywide 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.
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 391-392. 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).
"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.
"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."
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).
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).
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.
"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.
"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.
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).