Richard L. Verrilli, Cross-Appellee v. City of Concord, Cross-Appellants
Opinion
Opinion
Appellant seeks a belated recall of the mandate in this case. A response in opposition has been filed and considered. The case is reported at 548 F.2d 262 (1977). The sequence of principal events leading to this posture is as follows:
This case was argued and submitted on September 8, 1976.
Thfe opinion was filed January 3, 1977, and in Part III thereof dealing with a district court award of attorney’s fees ( 548 F.2d at 266 ), against the City of Concord we remanded for a determination of “the existence or nonexistence of bad faith”, basing our decision on Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 , 95 S.Ct. 1612 , 44 L.Ed.2d 141 (1975), which held that the private attorney general theory for an award of attorney’s fees could not be justified.
The Civil Rights Attorney’s Fees Act of 1976 (Act) became law on October 19, 1976. Public Law 94-559, 90 Stat. 2641, 1965 U.S. Code Cong. & Ad.News, 42 U.S.C. § 1988 . This Act vested discretion in the district court to award attorney’s fees in civil rights cases.
None of the parties brought this Act to the attention of this panel while the appeal was pending.
On February 2, 1977 (reh. den. March 28, 1977), this…