Frank v. Thompson et al., Appellants, v. the School Board of the City of Newport News, Virginia Andgeorge J. Mcintosh, Division Superintendent Ofschools for the City of Newport News,appellees (2 Cases).michael Copeland et al., Appellants, v. School Board of the City of Portsmouth, Virginia, et al.,appellees (2 Cases).nathaniel James et al., Appellees, v. the Beaufort County Board of Education, a Public Bodycorporate, Appellant, 472 F.2d 177 (4th Cir. 1972)

We ordered en banc consideration of lawyer fee claims in these school cases to consider the extent of the applicability of Sec. 718 of the Emergency School Aid Act of 1972. In the City of Portsmouth and the Beaufort County cases, however, apparently adequate fees are allowable on other bases. The precise extent of the reach of Sec. 718 in those cases, therefore, now appears academic.

In the Newport News case, most of the legal services are yet to be rendered, and we are unanimously of the view that, if relief is granted, fees will be allowable under Sec. 718 for those future services. The division within the Court as to the application of Sec. 718 will have some bearing upon any ultimate allowance of fees in that case, though less than was supposed when reargument was requested.

The Court is unanimously of the view that it should apply Sec. 718 to any case pending before it after the Section's enactment. This is consistent with the principle of United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 2 L. Ed. 49, most recently enunciated in the Supreme Court in Thorpe v. Housing Authority of Durham, 393 U.S. 268, 89 S. Ct. 518, 21 L. Ed. 2d 474.

A majority of the Court, however, is of the view that only legal services rendered after the effective date of Sec. 718 are compensable under it. Those members of the Court invoke the principle that legislation is not to be given retrospective effect to prior events unless Congress has clearly indicated an intention to have the statute applied in that manner. They do not find such an intention from the omission of a provision in an earlier draft expressly limiting its application to services rendered after its enactment, when the earlier draft was extensively revised and there is no affirmative expression by any member of Congress of an intention that it should be applied to services rendered prior to its enactment.

A minority of the Court would apply Sec. 718 to legal services, whenever rendered, in connection with school litigation culminating in an order entered after June 30, 1972. In their view, someone must pay the fee, and a statutory placement of the burden of payment on school boards is not a retroactive application of the statute, though some of the services may have been rendered before its enactment as long as an order awarding relief, the fruit of the services, is entered afterwards.

The cases will be remanded for such further proceedings in the District Court as may be necessary in accordance with the views of the majority, applying Sec. 718, when it may otherwise be applicable, only to services rendered after June 30, 1972.^* 

In the Portsmouth case, the District Court will award reasonable attorneys' fees on the principle of Brewer v. The School Board of the City of Norfolk, 4 Cir., 456 F.2d 943 (1972). In the Beaufort County case, the award heretofore made by the District Court is approved.

Remanded.

WINTER, Circuit Judge (concurring specially):

I concur in the judgment of the court to the extent that it directs the allowance of attorneys fees in the City of Portsmouth, Beaufort County and Newport News cases. For the reasons set forth in my separate opinion in Bradley v. School Board of Richmond, 472 F.2d 318 (4 Cir. 1972), I would direct the allowance in all three cases on the basis that Sec. 718 of the Emergency School Aid Act of 1972 applies to legal services rendered before the effective date of that enactment in cases pending on that date.