(dissenting):
The in banc court holds that this case is not governed by § 718 of Title VII, “Emergency School Aid Act,” of the Education Amendments of 1972. P.L. 92-318; 86 Stat. 235; 1972 U.S. Code and Admin. News, pp. 1908, 2051. The panel concludes both that the Richmond School Board was not guilty of “unreasonable, obdurate obstinacy” and that plaintiffs were not entitled to recover counsel fees under the private attorney general concept. On all issues, I would conclude otherwise and I therefore respectfully dissent.
I.
Because I conclude not only that § 718 is applicable to this litigation, but also that, as a matter of statutory construction, its terms are met, I place my dissent from the panel’s decision primarily on that ground. If, however, § 718 is treated as inapplicable to this case, I would affirm the district court, preferably on my concurring views in Brewer v. School Board of City of Norfolk, Virginia, 456 F.2d 943, 952-954 (4 Cir. 1972) cert. den. 406 U.S. 933, 92 S.Ct. 1778, 32 L.Ed.2d 136 (1972). Even if the obdurate obstinacy test controls, I would still affirm. As I read the record, I can only conclude that for the period for which an allowance of fees was made, the Richmond School Board was obdurately obstinate. Commendably, it seized the initiative in vindicating plaintiffs’ rights by seeking to sustain a consolidation of school districts; but this was a latter-day conversion that occurred after the district court suggested that consolidation be explored. Until that time the record reflects the Board’s stubborn reluctance to implement Brown I (Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed 873 (1954) in the light of Green v. County School Board of New Kent County, Va., 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968); Alexander v. Holmes County Board of Education, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969); Carter v. West Feliciana Parish School Board, 396 U.S. 226, 90 S.Ct. 467, 24 L.Ed.2d 382 *333(1969); and, while the litigation was progressing, Swann v. Charlotte-Meck-lenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971). The history of the litigation, as set forth in the opinion of the district court, is sufficient to prove the point. Bradley v. School Board of City of Richmond, Virginia, 53 F.R.D. 28, 29-33 (E.D.Va. 1971).
II.
I turn to the more important questions of the scope and application of § 718. Neither in the instant case, nor in James v. The Beaufort County Board of Education, 472 F.2d 177 (4 Cir. decided simultaneously herewith), does the majority articulate in other than summary form why § 718 should not apply to cases pending on its effective date (July 1, 1972). I conclude that it does apply, and in the face of the majority’s silence, I must discuss the pertinent authorities at some length.
The text of § 718 is set forth in the margin.1 Its enactment presents no question of retroactive application to this litigation. As I shall show, the issue of the allowance of counsel fees has been an issue throughout every stage of the proceedings; and the proceedings were not terminated when § 718 became effective on July 1, 1972, because this appeal was pending before us. This is not a case where a subsequent statute is sought to be applied to events long past and to issues long finally decided. Rather, it is a case which presents the concurrent application of a statute to an issue still in the process of litigation at the time of its enactment. United States v. Schooner Peggy, 1 Cranch 103, 2 L.Ed. 49 (1801), and Thorpe v. Housing Authority of Durham, 393 U.S. 268, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969), are the significant controlling authorities.
In Peggy, while an appeal was pending from a decision of the lower court in a prize case, the United States entered into a treaty with France, which if applicable would have required reversal. The treaty explicitly contemplated that it would be applicable to seizures that had taken place prior to the treaty’s ratification where litigation had not been terminated prior to ratification. On the basis of the new treaty, the Supreme Court reversed the decision of the lower court. In the opinion of Mr. Justice Marshall, it was said:
It is in the general true that the province of an appellate court is only to inquire whether a judgment when rendered was erroneous or not. But if, subsequent to the judgment, and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied. If the law be constitutional, . I know of no court which can contest its obligation. It is true that in mere private cases between individuals, a court will and ought to struggle hard against a construction which will, by a retrospective operation, affect the rights of parties, but in great national concerns, where individual rights, acquired by war, are sacrificed for national purposes, the contract making the sacrifice ought always to receive a construction conforming to its manifest import; and if the nation has given up the vested rights of its citizens, it is not for the court, but for the government, to consider whether it be a case proper for *334compensation. In such a case the court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside.
United States v. Schooner Peggy, supra, 1 Cranch at 109.
Peggy may be interpreted in two ways: Under a narrow interpretation the Court held only that, where the law changes between the decision of the lower court and an appeal, the appellate court must apply the new law if, by its terms, it purports to be applicable to pending cases. The decisional process, under this interpretation, requires the appellate court to examine the intervening law and to determine whether it was intended to apply to factual situations which transpired prior to the law’s enactment. Since the treaty in Peggy explicitly applied to situations where the controversy was still pending, it followed that the statute should be applied in deciding the case. Certainly the facts of Peggy and much of the language of the opinion of Mr. Justice Marshall support this interpretation.
By a broader interpretation, Peggy may be considered to hold that where the law has changed between the occurrence of the facts in issue and the decision of the appellate court and where the controversy is still pending, the appellate court must apply the new law, unless there is a positive expression that the new law is not to apply to pending cases. This is the interpretation of Peggy which found its final expression in Thorpe. But before turning to Thorpe it is well to consider intervening decisions.
In Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538, 61 S.Ct. 347, 85 L.Ed. 327 (1941), the Court held that a federal appellate court in exercising diversity jurisdiction must follow a state court decision which was subsequent to and contradicted the district court decision. In Carpenter v. Wabash Ry. Co., 309 U.S. 23, 60 S.Ct. 416, 84 L.Ed. 558 (1940), the Court held that the appellate court must apply an intervening federal statute where the case is pending on appeal. However, in Carpenter, the statute explicitly indicated that it was to apply to pending cases. In United States v. Chambers, 291 U.S. 217, 54 S.Ct. 434, 78 L.Ed. 763 (1934), the Court held that indictments returned pursuant to the eighteenth amendment, and before the adoption of the twenty-first amendment, must be dismissed after passage of the twenty-first amendment even though the acts when committed were crimes. See also Ziffrin v. United States, 318 U.S. 73, 63 S.Ct. 465, 87 L.Ed. 621 (1943). Then, in Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), the Court drew a firm distinction between those cases where an appeal is still pending and those that are final (“where the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari had elapsed . . .,” 381 U.S. at 622, n. 5, 85 S.Ct. at 1734). The Court held that Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), applied to pending cases but not to final cases. It discussed the previous decisions to which reference has been made and concluded that “[ujnder our cases ... a change in law will be given effect while a case is on direct review . . ..” 381 U.S. at 627, 85 S.Ct. at 1736. It should be noted, however, that the Court was by no means consistent in applying this rule after Linkletter. See Desist v. United States, 394 U.S. 244, 256-260, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969) (Harlan, J., dissenting).
In Thorpe, the Housing Authority gave the tenant notice to vacate in August, 1965, but refused to give its reasons for the notice. When the tenant refused to vacate, the Authority brought an action for summary eviction in September, 1965, and prevailed. Actual- eviction, however, was stayed during the pendency of the litigation. In 1967, before the Supreme Court decided the case, the Department of Hous*335ing and Urban Development issued a circular directing that tenants must be given reasons for their eviction. The Supreme Court held that housing authorities must apply the HUD circular “before evicting any tenant still residing in such projects on the date of this decision.” 393 U.S. at 274, 89 S.Ct. at 522. Relying on Peggy, it explained that “[t]he general rule ... is that an appellate court must apply the law in effect at the time it renders its decision,” although it recognized that “ [exceptions have been made to prevent manifest injustice . . . .” 393 U.S. at 281-282, 89 S.Ct. at 526.
The difference between Thorpe and Peggy is that the HUD circular did not indicate that it was to be applied to pending cases or to facts which had transpired prior to its issuance. Indeed, the circular stated that it was to apply “from this date” (the date of issuance). 393 U.S. at 272, n. 8, 89 S.Ct. 518. Thus, Thorpe held that even where the intervening law does not explicitly or implicitly contemplate that it would be applied to pending cases, it, nevertheless, must be applied at the appellate level to decide the case. The line of cases from Peggy o Thorpe dictates the application of § 718 in the instant case, irrespective of legislative intent. Simply stated, since the law changed while the case (the lawyers’ fees issue) was still pending before us, the new law applies.
The School Board contends that Thorpe does not erase the long-standing rule of construction favoring prospective application. It argues that Thorpe did not present a retroactivity question since the tenant had not yet been evicted. It places great reliance on the “tenant still residing” language in the opinion. The School Board concludes that since the tenant had not yet been evicted, the HUD circular was not retroactively applied but was currently applied to a still pending eviction. With respect to the legal services in issue in the instant case, the Board argues that the Thorpe rule does not apply since the performance of legal services was a completed act prior to the effective date of § 718.
While the Board’s premise regarding the interpretation of Thorpe may not be faulted, its analogy is inapt and its conclusion incorrect. True, the rendition of legal services in the instant case had been completed (except for legal services on appeal), but the dispute over who was liable for payment was very much alive, as alive as the dispute over eviction in Thorpe. The proper analogy is not between rendition of legal services and the eviction litigation, but between rendition of legal services and the Housing Authority’s termination of the lease and notice to vacate. These are the completed acts. What lingers is the dispute over who is right, and it lingers in both cases. Therefore, as in Thorpe, here there is no retroactivity issue. Thorpe governs and § 718 applies unless it is rendered inapplicable because one or more of its provisions has not been met. See Bassett v. Atlanta Independent School Dist. No. 1550, 347 F.Supp. 1191 (E.D.Tex.1972).2
*336III.
Since Thorpe governs, legislative history is not relevant, unless it unequivocally shows an intention on the part of Congress that the statute not apply to live issues in currently pending cases. The legislative history of § 718 provides no such expression of intent. To the extent that it proves anything, it supports the conclusion that § 718 should apply to live issues in currently pending cases.
Two clauses of § 718 bear on the issue. As originally proposed and reported, § 718 provided for a federal fund of $15 million from which counsel would be paid “for services rendered, and the costs incurred, after the date of enactment . . . ” S. 683, § 11 (Quality Integrated Education Act). The Senate Committee on Labor and Public Welfare reported the bill, with this clause intact, as S. 1557. Sen.Rep.No.92-61. 92nd Cong. 1st Sess. pp. 55-56.
The School Board places great stress on this language as indicating a strictly prospective legislative intent. It fails to point out, however, that the federal funding, as well as the “after the date” clause, were deleted by floor amendment prior to the passage of the Act. This floor amendment can be construed to indicate that Congress’ ultimate intent was indeed the opposite of that urged by the Board. The “after the date” clause and federal funding seem to have gone in tandem. Given the nature of federal appropriation, prospective application would be a sensible requirement. Compare Criminal Justice Act, 18 U.S.C.A. § 3006A (1970). By the deletion of federal funding, the reason for restricting payment of attorneys’ fees for services performed after the date of enactment disappeared.
Secondly, the School Board points to the language in the committee report which refers to “additional efforts,” but the sentence is phrased in the conjunctive. It reads: “$15 million is set aside for additional efforts under this bill and under Title 1 of the Elementary and Secondary Education Act of 1965 * * * and for vigorous nation-wide enforcement of constitutional and statutory protection against all forms of discrimination” (emphasis added). Whether “additional efforts” modifies everything that follows, or just what precedes the conjunction “and”, is debatable and a rather unenlightening inquiry.
Thus, nothing on the face of § 718, or in its legislative history, conclusively manifests a congressional desire that the Thorpe rule applying new legislation to live issues in pending litigation should not prevail. I turn to the question of its precise application.
IV.
Section 718 empowers, the court to award counsel fees “in its discretion, upon a finding that the proceedings were necessary to bring about compliance . .” The private attorney general rule of Newman v. Piggie Park Enterprises, 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed,2d 1263 (1968), governs the court’s discretion. Under the Piggie Park standard, the court should award counsel fees “unless special circumstances would render such an award unjust.” 390 U.S. at 402, 88 S.Ct. at 966. See Lea v. Cone Mills Corp., 438 F.2d 86 (4 Cir. 1971). The language of § 718 is substantially similar to the counsel fee provisions in § 204(b) of Title II and § 706(k) of Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. §§ 2000a-3(b), 2000e-5(k), and § 812(c) of Title VIII of the Civil Rights *337Act of 1968, 42 U.S.C.A. § 3612(c), all of which are governed by Piggie Park. Moreover, the legislative history of § 718 reveals that its purpose is the same as the counsel fee provisions in Titles II, VII, and VIII. 117 Cong.Rec.S. 5484, 5490 (Daily Ed. April 22, 1921) ; id. S. 5537 (Daily Ed. April 23, 1971). The additional standard in § 718 requiring the court to find that the suit was necessary to bring about compliance does not modify the Piggie Park standard, because its purpose, as revealed by the legislative history, is to deter champer-tous claims and the unnecessary protraction of litigation. 117 Cong.Rec.S. 5485, 5490-91 (Daily Ed. April 22, 1971). In the instant case, the district court found that suit was necessary to bring about compliance and it also found, at least implicitly, that there were no exceptional circumstances which would render an award of counsel fees against the School Board unjust. These findings are not clearly erroneous and hence counsel are entitled to some allowance of fees under § 718 as construed by Piggie Park.
V.
Although § 718 should be applied to legal services, whenever rendered, in connection with school litigation culminating in an order entered after its effective date (July 1, 1972), § 718 will not support affirmance of the precise award made by the district court in this case. It would, however, support a larger award to compensate for legal services rendered over a longer period.
The district court’s award was for legal services rendered from March 10, 1970, the date when plaintiff filed a motion for further relief because of the decisions in New Kent County, supra, Alexander, supra, and Carter, supra, to January 29, 1971, the date on which the district court declined to implement plaintiff’s plan. Manifestly, the entry of that order cannot support an award of counsel fees for services to the date of its entry because the order did not grant relief to the parties seeking to recover fees — a condition precedent to the award of fees as set forth in § 718. But, a recitation of the history of the litigation shows that counsel fees should be awarded for all legal services rendered from March 10, 1970 to April 5, 1971, the date on which the district court entered an order approving the plan under which the Richmond schools are presently being operated, and thereafter for legal services rendered in this appeal.
The essential dates in the history of the litigation follow: The motion for further relief was filed March 10, 1970. Appended thereto was an application for an award of reasonable attorneys’ fees. After admitting that its schools were not then being constitutionally operated, the Board filed a plan (Plan 1) to bring the operation of the schools into compliance with the Constitution. After hearings, the district court disapproved Plan 1 (June 26, 1970) and directed the preparation and filing of a new plan. Plan 2 was filed July 23, 1970, and hearings were held on it. It, too, was disapproved as an inadequate long-range solution. But, because there was insufficient time to prepare, file and consider another plan before the beginning of the next school term, Plan 2 was ordered into effect on August 17, 1970, for the term commencing August 30, 1970, and the Board was also ordered to make a new submission. The Board appealed from the order implementing Plan 2 and obtained a delay in briefing from this court. The appeal was never heard, because, having been effectively stayed, it was rendered moot by later orders. Before Plan 3 was filed, plaintiffs sought further relief for the second semester of the 1970-71 school year, but Plan 3 was filed (January 15, 1971) before they could be heard and their motion was denied on January 29, 1971, the terminal date for the allowance of compensation in the order appealed from. Plan 3 contained three parts — it was a restatement of Plans 1 and 2, and it contained a new third proposal. The Board urged the adoption of the Plan 2 aspect of Plan 3; but, on April 5, 1971, the district court ordered into effect for the 1971-72-*338school year the new third proposal. This is the plan under which the Richmond schools are presently operating.3
To this summary there need only be added that on August 17, 1970, the district court ordered the parties to confer on the subject of counsel fees. Plaintiffs filed on March 5, 1971, a memorandum in support of their request for an allowance; the court, on March 10, 1971, ordered that further memoranda and evi-dentiary materials with regard to the motion for counsel fees be filed; and these were filed on March 15, 1971. The order directing the payment of counsel fees was entered May 26, .1971, after the entry of the order approving and implementing Plan 3.
The majority concludes that § 718 was rendered inapplicable because the order appealed from was entered May 26, 1971, a date on which there was no “final order” entered as “necessary to secure compliance.” This conclusion seems to me to be overly technical and not in accord with the facts.
The request for counsel fees was made when the motion for additional relief was filed on March 10, 1970. While very much alive throughout the proceedings, properly, the motion was not considered until the district court could approve a plan for a unitary system of schools for Richmond which was other than an interim plan. That approval was forthcoming on April 5, 1971, and promptly thereafter the district court addressed itself to the question of allowance of counsel fees. The approval of a permanent plan was not easily arrived at. Because the proposals of the Richmond School Board were constitutionally unacceptable, except on an interim basis, this approval was arrived at in several steps: (a) disapproval of Plan 1, (b) interim approval of Plan 2, (c) disapproval of additional interim relief, and (d) approval of Plan 3.
Certainly, § 718 is not to be so strictly construed that any counsel fees allowable thereunder must be allowed the very instant that an order granting interim or permanent relief is entered. A request for fees may present difficult questions of fact and require the taking of evidence. The burden of deciding these questions should not be added to the simultaneous burden of deciding the often very complex question of what is a constitutionally acceptable desegregation plan; rather, the issues should be severed and the question of counsel fees decided later so long as the issue of counsel fees had been present throughout the litigation and has not been raised as an afterthought after the school desegregation plan has become final. These practical considerations, plus the fact that every stage in the proceedings has been a part of an overall transition from unconstitutionally operated schools in Richmond to constitutionally operated schools, lead me to the conclusion that the exact terms and conditions of § 718 have in the main been met.
While I therefore conclude that there was a sufficient nexus between the request for counsel fees and the entry of a final order necessary to obtain compliance with the Constitution so as to warrant invoking § 718, I think that § 718 requires that the district court redetermine the allowance. As previously stated, the district court made an allowance for services to the date that plaintiffs’ request for additional interim relief was denied. If the various steps for arriving at an overall desegregation plan for Richmond are severed, § 718 would not permit an allowance for services leading to the order of January 29, 1971, since on that date plaintiffs were denied the additional interim relief they prayed and § 718 permits an allowance only to the prevailing party. However, plaintiffs would be entitled to an allow-*339anee for services beyond January 29, 1971, up to April 5, 1971, the date of approval of Plan 3, because on that date they became the prevailing party and they obtained an order, still in effect, which required the schools of Richmond to be operated agreeably to the Constitution. I would therefore vacate the judgment and remand the case for a redeter-mination of the amount of the allowance • — in short, I would require that counsel be compensated for their services to and including April 5, 1971 and also their services on appeal in this case.
. Attorney Fees
Sec. 718. 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 title or for discrimination on the basis of race, color, or national origin in violation of title YI 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.
. It must be recognized that there are some discordant notes in the case law: In Soria v. Oxnard School Dist. Board, 467 17.2(1 59 (9 Cir. 1972), it was held, in a per curiam opinion, that § 803 of the Education Amendments of 1972, which postponed the effectiveness of busing orders for the purpose of achieving racial balance until all appeals have been exhausted, had no application to a case pending at the time of its effective date in which busing, pursuant to an integration plan, is already in operation. There is no mention, however, of Thorpe.
In Greene v. United States, 376 U.S. 149, 84 S.Ct. 615, 11 L.Ed.2d 576 (1964), the Court refused to apply an intervening Department of Defense regulation to a pending case, reasoning in retroactivity language. But this case was obviously one where “retroactivity” would work “manifest injustice.” See Thorpe, supra at 282 n. 43, of 393 U.S., 89 S.Ct. 518. Cases construing the Criminal Justice Act, 18 U.S.C.A. § 3006A (1970), which provides court-appointed attorneys with fees from federal funds have held that it applies only where counsel was appointed after the Act, or at least, only where counsel’s assistance was rendered after the Act. Compare United States v. Pope, 251 F.Supp. 331 (D.Neb.1966) with United *336States v. Dutscli, 357 F.2d 331 (4 Cir. 1966) ; United States v. Thompson, 356 F.2d 216 (2 Cir. 1965) cert. den. 384 U.S. 964, 86 S.Ct. 1591, 16 L.Ed.2d 675 (1966) ; Dolan v. United States, 351 F.2d 671 (5 Cir. 1965) (per curiam). But that Act involved expenditures of federal appropriations which, by the terms of the Act, would not become effective until a year after enactment, so that it may be fairly said that there was a clear legislative intention not to make the terms of the Act applicable to pending cases.
. Of course there were even still further proceedings culminating in an order to consolidate the Richmond, Henrico County and Chesterfield School Districts, but this court set that order aside in Bradley v. The School Board of City of Richmond, Virginia, 462 F.2d 1058 (4 Cir. 1972), application for cert. filed October 10, 1972.