764 THE HASTINGS LAW JOURNAL [Vol. 24 commodation sections but pointedly omitted to include such a provision in the public education section."119 Although these arguments appear somewhat persuasive on their face,120 closer analysis reveals their utter lack of probative force. The legislation which was introduced in Congress in 1971 apparently was never acted upon in a manner which might justify an inference that Congress had any serious reservations concerning the advisability of allowing fees to prevailing plaintiffs in school integration actions.121 In fact, this very bill, along with its attorneys' fees provision, ultimately was carried into the 1972 session of Congress and enacted Title VII, "Emergency School Aid Act," of the Education amendments of 1972.122 Secondly, with respect to the omission of a fees provision 119. Bradley v. School Bd., 472 F.2d 318, 328 (4th Cir. 1972). 120. In light of Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714 (1967), it can hardly be doubted that legislative action which implicitly manifests a clear intent to restrict the availability of attornyes' fees awards will be recognized as such and given effect by the courts. The crucial inquiry which arises in this regard is whether the legislative action in question actually indicates a clear and unambiguous intent to restrict the court's fee shifting powers. 121. This opinion was expressed by Mr. Richard Smith, associate counsel to the Senate Subcommittee on Education, Committee on Labor and Public Welfare, in a phone conversation with the author on February 3, 1973. As to the underlying rationale of the attorneys' fees provision itself, the following explanation was offered in a Senate Committee on Labor and Public Welfare report: "[School desegregation] laws are not now being enforced throughout the nation. The Federal government is devoting neither the time, effort nor the financial resources necessary for adequate law enforcement. For example, the budget of the Justice Department's Civil Rights Division for education activities amounts to only $1 million a year. Only six school desegregation suits have been brought in Northern and Western states by the Justice Department. Only nine school districts in Northern and Western states have been required to file desegregation plans under Title VI of the Civil Rights Act of 1964. The Committee believes that funds should be made available to assure that Federal laws will be enforced throughout the country, while at the same time, under the policies and programs set forth in this bill, voluntary efforts to achieve quality education in stable integrated environments are assisted throughout the nation. "Although litigation directed toward the enforcement of these laws is often time consuming and therefore expensive, litigation on behalf of those injured by breach of legal requirements remains the most effective and economical method of which the Committee is aware to obtain protection of legal rights." S. REP. No. 92-61, 92d Cong., 1st Sess. 25 (1971). 122. Pub. L. No. 92-318, 86 Stat. 235. Section 718 of this act, relating to attorney fees, provides as follows: "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 agency thereof), for failure to comply with any provision of this title 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 March 1973] THE PRIVATE ATTORNEY GENERAL 765 in the public education section of the 1964 Civil Rights Act,123 the simple explanation appears to be that this section does not contemplate private actions but merely enables the United States attorney general to bring desegregation actions on behalf of persons he feels are unable to initiate their own suits.12 Accordingly, there is no reason for this section to provide for awarding attorney's fees to private plaintiffs.125 An Attempt to Distinguish Mills and Lee The court's next argument was that neither Mills v. Electric AutoLite Co.126 nor Lee v. Southern Home Sites Corp. 127 was authority for awarding fees in the fact situation presented in Bradley. Any reliance on Mills, the court said, was misplaced "because conferral of benefits, not policy enforcement, was the Mills Court's stated justification for its holding.'. . . In fact, the award in Mills was based on the same concept of benefit as was used to support the award in Trustees v. Greenough.. 99128 These assertions do not appear to be well-founded. First, the decision in Mills was precisely that the federal courts, in their application of the common fund doctrine, were justified in departing from the Greenough requirement of a pecuniary benefit so as to require only that the benefit conferred be of a substantial nature. 129 Second, the distinction which the Bradley court draws between "conferral of benefits" and "policy enforcement" in Mills is largely illusory since the principal benefit conferred in that case was, in fact, the enforcement of public policy. It would appear, then, that the only conceptual feature of Mills which prevents it from being direct authority for an award of fees in Bradley is the fact that, at least formally, Mills spoke in terms 130 about compliance, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." This provision had been modified from the form in which it was originally introduced which would have assessed plaintiffs' fees against the federal government rather than the defendant. 123. 42 U.S.C. § 2000c (1970). 124. Private desegregation actions apparently are almost always brought under 42 U.S.C. § 1983 (1970). 125. The public accommodations and equal employment opportunity sections, 42 U.S.C. §§ 2000a and 2000e respectively, on the other hand, expressly provide for private actions. 42 U.S.C. §§ 2000a-3 (a) and 2000e-5 (e) (1970). 126. 396 U.S. 375 (1970). See text accompanying notes 28-35 supra. 127. 444 F.2d 143 (5th Cir. 1971). See text accompanying notes 45-52 supra. 128. Bradley v. School Bd., 472 F.2d 318, 329 (4th Cir. 1972), quoting Note, 50 TEXAS L. REV. 204, 207 (1971). 129. See text accompanying notes 27-33 supra. 130. See text accompanying note 34 supra. 766 THE HASTINGS LAW JOURNAL [Vol. 24 131 of the fund theory and its appurtenant unjust enrichment rationale." This obstacle, however, seemingly was overcome by the Fourth Circuit itself in Brewer v. School Board.132 That is, if one were to combine the quasi-fund theory of Brewer133 with the substantial benefit test of Mills, there seemingly would exist a legal apparatus which would wholly justify an award of fees in Bradley.134 Nonetheless, the court failed to utilize this unique potential provided by its earlier decision. The Bradley court's dismissal of Lee is equally unconvincing. In essence the court's argument was that the Lee court had justified its award of fees by noting that there existed a federal statute which authorized fee awards in suits closely parallel to the action before it, and that by analogy, fees should also be allowed in that action.15 In contrast to the Lee situation, the Bradley court implied that there was no statute allowing attorneys' fees to be shifted in school desegregation actions to which the court could analogize the action before it. The deficiency of this summary dismissal of Lee is that it fails to treat the true breadth of the Lee rationale. The statutory analogy argument was but one pillar of the Lee holding. The Lee court also relied upon Mills, construing it in exactly the sense which the Bradley court refused to, and upon Piggie Park.136 These portions of Lee, which did, in fact, provide direct authority for an award of fees in Bradley, were entirely ignored by the court. Congressional Silence and Separation of Power The final arguments in Bradley were aimed directly at the roots of the private attorney general doctrine: If, however, the rationale of Mills is to be stretched so as to provide a vehicle for establishing judicial power justifying the em 131. The substance of even this distinction is questionable, however, since Mills is readily susceptible of a pure policy enforcement interpretation in spite of its formal adherence to the fund doctrine. See note 35 and accompanying text supra. 132. 456 F.2d 943 (4th Cir. 1972). This case is discussed in the text accompanying notes 53-61 supra. 133. See text accompanying note 59 supra. 134. The argument would run simply that instead of providing plaintiffs' class with the benefit of free transportation, as was the case in Brewer, the plaintiffs in Bradley had conferred upon their class the "substantial benefit" of accelerated desegregation, or, in other words, the enforcement of the policies inherent in the equal protection clause and 42 U.S.C. § 1983, and hence, under the quasi-fund theory they were entitled to receive attorneys' fees from the school board. 135. For a discussion of this portion of the Lee opinion see notes 49-51 and accompanying text supra. 136. These aspects of Lee are discussed in the text accompanying notes 47, 48 and 52 supra. March 1973] THE PRIVATE ATTORNEY GENERAL ployment of award of attorney's fees to promote and encourage 767 In addition, the court contended that "[c]ourts should not assume that Congress legislates in ignorance of existing law . . ."138 Rather, they should interpret Congress's failure to provide for fee awards under any particular statute as constituting a purposeful expression of legislative intent that such awards "should be allowed only as they may be authorized under the traditional and long established principles. . .' 139 These pronouncements by the Bradley majority would seem to raise two fundamental questions: (1) Should federal courts regard legislative silence as a constraint against implementing any new fee shifting rationales, and (2) if not, should the courts still refrain from implementing the private attorney general rationale on the ground that it entails policy determinations which are more properly left to Congress? It is urged that each of these questions should be answered in the negative. Inferring a legislative mandate based on Congress's failure to express itself would seem to entail a wholly unwarranted abdication of power which has long been recognized as properly residing within the federal judiciary. None of the leading cases which have discussed the inherent jurisdiction of the federal courts to award fees has ever suggested that this power is arbitrarily circumscribed, or that having once been an organic and flexible source of judicial authority it is now a mere collection of a few petrified rules. Indeed, as discussed earlier in this note, federal courts had undertaken considerable departures from the traditional fee-shifting exceptions even prior to the private attorney general doctrine.140 Thus, it would seem that the reasoning 137. Bradley v. School Bd., 472 F.2d 318, 329 (4th Cir. 1972). 138. Id. at 330. 139. Id. 140. See text accompanying notes 12-34 supra. Another case which clearly demonstrates the courts' willingness to depart from traditional fee-shifting exceptions when considerations of equity warrant it, and which, interestingly enough was decided by the Fourth Circuit, is Rolax v. Atlantic Coast Line R.R., 186 F.2d 473 (4th Cir. 1951). There, black employees of defendant railroad company brought suit against the railroad and the Brotherhood of Locomotive Firemen and Engineers, a labor union, for negotiating a contract which allegedly prejudiced the continued employment of black firemen. The contract was in fact found to be racially discriminatory and hence void. In decreeing the relief to which plaintiffs were entitled the court upheld the lower court's 768 THE HASTINGS LAW JOURNAL [Vol. 24 of the Bradley court could be applied just as persuasively to reach a directly opposite conclusion. That is, assuming that Congress does indeed act with full awareness of existing legal precedent, it arguably follows that legislative silence indicates, if anything, an intent to give full reign to the demonstrated expansiveness of the court's fee shifting pow ers. The remaining question, then, is whether the courts should, as a matter of judicial discretion, refrain from implementing the private attorney general doctrine. The Bradley court suggests that they should on the ground that the doctrine allegedly requires the courts to make two types of policy determinations which are better left to Congress: namely, which laws effectuate public policy per se and which of such laws warrant the enforcement incentive of a fees award. This argument, however, would not appear to be particularly persuasive. To begin with, it is difficult to see how encouraging the enforcement of laws which by definition reflect public policy "as expressed by Congress or embodied in the Constitution" entails an independent determination by the courts as to the existence of such policies. Indeed, the simple fact remains that since all federal laws embody public policy, the vindication of any such law operates, to some greater or lesser extent, to advance the public interest.11 Hence, no judicial inquiry into the existence of public policy per se would seem to be involved in the determination of whether to award fees under the private attorney general doctrine. It is true, of course, that the doctrine does require the courts to weigh and balance the conflicting policies which inhere in its applica award of attorneys' fees. The court stated that: "Ordinarily, of course, attorneys' fees, except as fixed by statute, should not be taxed as part of the costs recovered by the prevailing party; but in a suit in equity where the taxation of such costs is essential to the doing of justice, they may be allowed in exceptional cases. The justification here is that plaintiffs of small means have been subjected to discriminatory and oppressive conduct by a powerful labor organization which was required, as bargaining agent, to protect their interests. The vindication of their rights necessarily involves greater expense in the employment of counsel to institute and carry on extended and important litigation than the amount involved to the individual plaintiffs would justify their paying. In such situation, we think that the allowance of counsel fees in a reasonable amount as a part of the recoverable costs of the case is a matter resting in the sound discretion of the trial judge. Id. at 481. It is apparent that this rationale comes within none of the traditional exceptions to the general rule, but rather is concerned only with basic principles of equity. 141. Cf. Note, The Allocation of Attorney's Fees After Mills v. Electric Auto Lite Co., 38 U. CHI. L. REV. 316, 334 (1971). Such benefit to the public at large may, of course, be found in any of several forms: for example, in the deterence of similar violations of the law, in the clarification of vague and ambiguous legal rights and duties, or in the substantive therapeutics resulting from the individual suit. |