1466 744 THE HASTINGS LAW JOURNAL [Vol. 24 accurately may be described as a "private attorney general." Whatever the conduct of defendants may have been, it is intolerably anomalous that counsel entrusted with guarantying the effectuation of a public policy of non-discrimination as to a large proportion of citizens should be compelled to look to himself or to private individuals for the resources needed to make his proof. . . Where the interests of so many are at stake, justice demands that the plaintiffs' attorneys be equipped to inform the court of the consequences of available choices; this can only be done if the availability of funds for representation is not left to chance.** In Bradley, then, the court's position is apparently that plaintiffs' counsel should be compensated by the state rather than by either of the parties to the action. This was indeed a novel departure from standard concepts in fee shifting. Nevertheless, since a state agency was a defendant to the action, and hence, under traditional fee shifting, the state would also have sustained the burden of plaintiff's attorneys' fees, the full potential impact of the Bradley holding was not apparent. Aside from this fact, the district court opinion in Bradley did stand unequivocally for a broad application of the basic Piggie Park rationale. Regardless of whether statutory authority to shift fees existed, the policy of encouraging the vindication of strong governmental interests was an appropriate basis upon which to do so. In Lee v. Southern Home Sites Corp.,45 decided less than a month after Bradley, the United States Court of Appeals for the Fifth Circuit dealt with the question of attorneys' fees in the context of a suit brought under 42 U.S.C. section 1982.46 This statute, like section 1983 with which the Bradley court was faced, makes no express provision for awarding attorneys' fees. The facts of the case presented a clear cut instance of racial discrimination. Southern Home Sites, a Mississippi company engaged in the business of real estate development, was running a campaign to develop a site near Ocean Springs, Mississippi. As part of its campaign Southern had mailed form letters in which it had offered to sell to the recipient a lot purportedly worth $600 for $49.50 in cash; the only condition for eligibility was that the buyer "be a member of the white race." Lee, a black man, received one of the promotional letters and tendered an offer of $49.50 to Southern. Southern refused to accept and Lee brought suit. In the district court Lee succeeded in securing an injunction against future discrimination by the defendant; however, his additional motion 44. Id. at 42. 45. 444 F.2d 143 (5th Cir. 1971). 46. This statute originally was enacted as part of the Civil Rights Act of 1866. It provides that "[a]ll citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, hold, and convey real and personal property." 42 U.S.C. § 1982 (1970). 1 March 1973] THE PRIVATE ATTORNEY GENERAL 745 for an award of counsel fees was refused. The court reasoned that since the statute did not provide for such an award and since Southern's defense against Lee's suit had not been sufficiently "malicious, oppressive or so unreasonable and obdurately obstinate" to call the “vexatious conduct" rule into play, no award of fees was justified. On appeal the district court's denial of fees was reversed. The appellate court noted in passing that in view of certain facts bad faith could be attributed to defendant's continued litigation after a certain point in the proceedings; however, it chose to base its holding upon a "broader ground"—namely, that awarding attorneys' fees is an appropriate means for the federal courts to use in effectuating congressional policy. In justifying this holding the court relied principally on Mills, Piggie Park and certain federal statutes which allowed the award of attorneys' fees and which the court felt embodied legislative policies which were closely analagous to those supporting section 1982. Looking first to Mills, the court acknowledged that, at least formally, the decision had spoken in terms of shareholder's suits and the unjust enrichment rationale. Nevertheless, by turning to the more expansive construction to which the Mills decision is susceptible, the court reasoned that the decision "is better understood as resting heavily on its acknowledgement . . . that private suits are necessary to effectuate congressional policy and that awards of attorney's fees are necessary to encourage private litigants to initiate such suits." The court then concluded that "here as in Mills there is a strong congressional policy behind the rights declared in section 1982. Awarding attorney's fees to successful plaintiffs would facilitate the enforcement of that policy through private litigation.' 9948 For additional support of its holding, the court looked to other federal acts which it regarded as embodying policies similar to those implemented by section 1982, and which expressly provided for the award of attorneys' fees. These included the Fair Housing Law and the Public Accommodations and Equal Employment Opportunities sections of the 1964 Civil Rights Act.50 The court argued that "[i]n fashioning an effective remedy for the rights declared by Congress one hundred years ago, courts should look not only to the policy of the enacting Congress but also to the policy embodied in closely related legislation. Courts work interstitially in an area such as this."51 final abutment of its decision the court turned to Piggie Park. After quoting extensively from that opinion, the court concluded: "To en 47. 444 F.2d at 145. 48. Id. 49. 42 U.S.C. § 3612(c) (1970). 50. Id. § 2000a-3 (b), § 2000e-5k (1970). 51. 444 F.2d at 146. In 746 THE HASTINGS LAW JOURNAL [Vol. 24 sure that individual litigants are willing to act as 'private attorneys general to effectuate the public purposes of the statute, attorney's fees should be as available as under [the Fair Housing Act]."52 Thus Lee, like the district court opinion in Bradley, proceeded upon the rationale that private suits were a valid and indeed necessary means of enforcing certain congressional policies and that awarding attorneys' fees therefore was justified as a means of encouraging such enforcement. The third opinion to consider the new fee shifting rationale in some detail was the Fourth Circuit case of Brewer v. School Board.53 In this case plaintiffs had brought suit to contest the adequacy of a revised plan of desegregation which had been approved by the district court. The court of appeals dismissed all of plaintiffs' attacks on the plan except one: its failure to provide free bus transportation to pupils who were assigned to schools beyond walking distance from their homes. On this point the court was persuaded by plaintiffs' argument that such transportation was a necessary incident to any plan for school integration. Forcing the reassigned students to ride the public bus system, the plaintiffs had urged, would impose an "unreasonable, if not an intolerable burden" upon a substantial number of the affected families. In response to these arguments the court ordered the school board to provide free transportation for the students who were assigned to schools outside their neighborhoods. 54 The court next focused its attention on plaintiff's request for attorneys' fees. Since the section of the civil rights laws under which plaintiffs had sued did not provide for attorneys' fees awards, the court looked to the various equity rules. Application of the bad faith exception was rejected on the ground that the court found no "compelling circumstances" to overturn the district court's finding that the board had made "a good faith effort at desegregation." Also, in a lengthy footnote, the court said that the private attorney general doctrine would not seem to apply in school desegregation cases." In reaching this conclusion the court characterized Lee and Miller v. Amusemení Enterprises, Inc., a case which essentially had duplicated the Piggie Park holding, as resting primarily upon a specific need to privately enforce certain statutory rights. For example, the court stated that the reason for the ruling in Lee "was that the right asserted by the complainant, though involving public policy, ‘under present judicial development, depends entirely on private enforcement.' In contrast 52. Id. at 148. 56 99957 53. 456 F.2d 943 (4th Cir.), cert. denied, 406 U.S. 933 (1972). 1469 March 1973] THE PRIVATE ATTORNEY GENERAL 747 to Lee and Miller the court pointed out that in the school desegregation area the United States Attorney General was empowered to pursue any "meritorious" action on behalf of any person who, in the attorney general's opinion, was unable to "bear the expense of the litigation." Furthermore, the court noted, "the Department of Health, Education and Welfare has a responsibility to see that every school receiving any federal assistance (and, for practical purposes, it may be assumed all do) is desegregated."58 Finally, however, basing its decision upon what it termed a “quasiapplication of the 'common fund' doctrine," the court held that an award of counsel fees to plaintiff was in fact justified. The court delineated its reasoning as follows: The students have secured a right [of free transportation] worth This argument would indeed seem to stray far from the common fund theory. In fact, the court would appear to expressly negate any intent to achieve the basic purpose of the fund theory-the avoidance of unjust enrichment. Instead it apparently reasoned that since plaintiffs had, in effect, conferred a pecuniary benefit upon their class, they were entitled to have their attorneys' costs paid, if not by the beneficiary class, then by the defendant. Any nexus between this reasoning and the traditional fund doctrine is extremely tenuous to say the least. In his special concurrence, Judge Winter, recognizing that there were "grave" conceptual difficulties with the majority's reasoning, looked to Piggie Park for a firmer basis for awarding fees. He asserted that the policy behind Piggie Park was directly applicable to school desegregation cases, and in response to the majority's argument that such policies were adequately protected by public enforcement agencies, Judge Winter noted that [d]espite the extensive enforcement responsibilities the statutes 58. Id. at 951-52. 59. Id. 1470 748 THE HASTINGS LAW JOURNAL [Vol. 24 Welfare and their immense resources, we know from the cases Judge Winter continued by observing that almost the entire financial burden of the suit had fallen on plaintiffs and the nonprofit organization which had provided plaintiffs with counsel. He concluded: "The time is now when those who vindicate these civil rights should receive fair and equitable compensation from the sources which have denied them. . . . 61 Although it is apparent that the majority opinion in Brewer did not promote the conceptual clarity of the emerging attorneys' fees law, it did provide additional proof of two significant facts: first, that a number of federal courts are strongly inclined to award attorneys fees to prevailing complainants in some circumstances which are not covered by the traditional fee shifting rules; and second, that the courts have been unable to settle upon a single fee shifting rationale which would accommodate all of these inclinations. The law thus awaited further developments. Recent Applications of the New Exception Against the background of Bradley, Lee and Brewer, four district court cases very recently have been decided which have added both clarity and new dimensions to the private attorney general concept in fee shifting. The first of these, Sims v. Amos,62 was decided March 17, 1972 by the federal district court for the middle district of Alabama. There the question of attorneys' fees arose in the context of an action to secure reapportionment of the state legislature. Plaintiffs had contended that the Alabama legislature was malapportioned so as to deny them their constitutional right to equal suffrage. The three judge district court ruled that plaintiffs had proved their allegation and accordingly ordered the implementation of plaintiffs' proposed reapportionment plan. The court found little difficulty in justifying an award of attorneys' fees to plaintiffs under the traditional bad faith test. that "[t]he history of the present litigation is replete with instances of the Legislature's neglect of, and even total disregard for, its constitutional obligation to reapportion."63 In addition, the court pointed out |