                           PUBLISHED

UNITED STATES COURT OF APPEALS
                 FOR THE FOURTH CIRCUIT


TERRY BELK; DWAYNE COLLINS, on           
behalf of themselves and the class
they represent,
                Plaintiffs-Appellants,
                  v.
WILLIAM CAPACCHIONE, Individually
and on behalf of Christina
Capacchione, a minor; MICHAEL P.
GRANT; RICHARD EASTERLING;
LAWRENCE GAUVREAU; KAREN
BENTLEY; CHARLES THOMPSON; SCOTT
C. WILLARD,
                Plaintiffs-Appellees,
                 and                        No. 99-2389
THE CHARLOTTE-MECKLENBURG
BOARD OF EDUCATION; ERIC SMITH,
Superintendent, in his official
capacity; ARTHUR GRIFFIN, Chairman
of the Charlotte-Mecklenburg
School Board, in his official
capacity,
                          Defendants.
UNITED STATES OF AMERICA; NORTH
CAROLINA SCHOOL BOARDS
ASSOCIATION; NATIONAL SCHOOL
BOARDS ASSOCIATION,
                     Amici Curiae.
                                         
2      BELK v. CHARLOTTE-MECKLENBURG BOARD   OF   EDUCATION



WILLIAM CAPACCHIONE, Individually        
and on behalf of Christina
Capacchione, a minor; MICHAEL P.
GRANT; RICHARD EASTERLING;
LAWRENCE GAUVREAU; KAREN
BENTLEY; CHARLES THOMPSON; SCOTT
C. WILLARD,
                Plaintiffs-Appellees,
                 and
TERRY BELK; DWAYNE COLLINS, on
behalf of themselves and the class
they represent,
                           Plaintiffs,
                  v.                        No. 99-2391
THE CHARLOTTE-MECKLENBURG
BOARD OF EDUCATION; ERIC SMITH,
Superintendent, in his official
capacity; ARTHUR GRIFFIN, Chairman
of the Charlotte-Mecklenburg
School Board, in his official
capacity,
              Defendants-Appellants.
UNITED STATES OF AMERICA; NORTH
CAROLINA SCHOOL BOARDS
ASSOCIATION; NATIONAL SCHOOL
BOARDS ASSOCIATION,
                     Amici Curiae.
                                         
       BELK v. CHARLOTTE-MECKLENBURG BOARD   OF   EDUCATION   3



WILLIAM CAPACCHIONE, Individually        
and on behalf of Christina
Capacchione, a minor; MICHAEL P.
GRANT; RICHARD EASTERLING;
LAWRENCE GAUVREAU; KAREN
BENTLEY; CHARLES THOMPSON; SCOTT
C. WILLARD,
                Plaintiffs-Appellees,
                 and
TERRY BELK; DWAYNE COLLINS, on
behalf of themselves and the class
they represent,
                           Plaintiffs,
                  v.                        No. 00-1098
THE CHARLOTTE-MECKLENBURG
BOARD OF EDUCATION; ERIC SMITH,
Superintendent, in his official
capacity; ARTHUR GRIFFIN, Chairman
of the Charlotte-Mecklenburg
School Board, in his official
capacity,
              Defendants-Appellants.
UNITED STATES OF AMERICA; NORTH
CAROLINA SCHOOL BOARDS
ASSOCIATION; NATIONAL SCHOOL
BOARDS ASSOCIATION,
                    Amicus Curiae.
                                         
4       BELK v. CHARLOTTE-MECKLENBURG BOARD      OF   EDUCATION


WILLIAM CAPACCHIONE, Individually            
and on behalf of Christina
Capacchione, a minor; MICHAEL P.
GRANT; RICHARD EASTERLING;
LAWRENCE GAUVREAU; KAREN BENTLEY;
CHARLES THOMPSON; SCOTT C.
WILLARD,
                    Plaintiffs-Appellees,
                  and
TERRY BELK; DWAYNE COLLINS, on
behalf of themselves and the class
they represent,

                   v.
                               Plaintiffs,
                                                  No. 00-1432

THE CHARLOTTE-MECKLENBURG
BOARD OF EDUCATION; ERIC SMITH,
Superintendent, in his official
capacity; ARTHUR GRIFFIN, Chairman
of the Charlotte-Mecklenburg School
Board, in his official capacity,
                Defendants-Appellants.
UNITED STATES OF AMERICA; NORTH
CAROLINA SCHOOL BOARDS
ASSOCIATION; NATIONAL SCHOOL
BOARDS ASSOCIATION,
                          Amici Curiae.      
                      Filed: December 14, 2001


                                ORDER

  The Grant-Intervenors-Appellees and the Capacchione-Intervenor-
Appellee each filed a motion to reconsider the issue of attorneys’ fees
and a motion to stay the mandate pending resolution of the motion to
        BELK v. CHARLOTTE-MECKLENBURG BOARD         OF   EDUCATION     5
reconsider. The motion to reconsider is denied by a vote of 6-5 (Chief
Judge Wilkinson and Judges Niemeyer, Michael, Motz, King, and
Gregory in the majority). The motions to reconsider effectively stayed
the mandate, but that stay is now lifted. Chief Judge Wilkinson filed
an opinion concurring in the denial of rehearing. Judge Traxler filed
an opinion dissenting from the denial of rehearing in which Judges
Widener and Wilkins joined.

  The motion of the Belk plaintiffs for a stay of the mandate is
denied.

                                    For the Court


                                    Patricia S. Connor
                                    Clerk

WILKINSON, Chief Judge, concurring in the denial of reconsidera-
tion:

   The matter of attorneys’ fees has been extensively debated in the
en banc decision of the court and I have no desire to belabor it. In
view of my good colleague’s dissent, however, I shall briefly state the
basis for my view that a departure from the American rule, whereby
each side pays its own lawyers, is not warranted with respect to the
unitary status determination.

   Such a departure is not justified for the simple reason that Congress
has not authorized it. The Supreme Court has made clear that Con-
gress has not "extended any roving authority to the Judiciary to allow
counsel fees as costs or otherwise whenever the courts might deem
them warranted." Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421
U.S. 240, 260 (1975). Under the American rule, "we follow a general
practice of not awarding fees to a prevailing party absent explicit stat-
utory authority." Buckhannon Bd. & Care Home, Inc. v. West Virginia
Dept. of Health & Human Res., 121 S. Ct. 1835, 1839 (2001) (internal
quotation omitted). There is no such authority here.

  The dissent attempts to analogize the unitary status proceedings to
an action under 42 U.S.C. § 1983, for which attorney’s fees would be
6       BELK v. CHARLOTTE-MECKLENBURG BOARD        OF   EDUCATION
available to prevailing parties at the discretion of the court under 42
U.S.C. § 1988. What we have here, however, is the exact opposite of
a § 1983 action. The essence of a § 1983 action is that the defendant
has violated the plaintiff’s federal rights under color of state law. In
contrast, the entire point of a unitary status determination is to prove
that the school district is in compliance with federal law. And Con-
gress has simply not authorized us to impose attorney’s fees on a
party whose actions have been adjudged compliant with federal stat-
utes and our Constitution.

   While the dissent would have us believe that the Grant and Capac-
chione plaintiffs simply picked up where the Swann plaintiffs left off,
this is simply not the case. The focus of their respective efforts was
quite different. The Swann plaintiffs sought to prove the school board
in violation of the bedrock federal mandate that no student be denied
an education on account of his or her race. The unitary status proceed-
ings sought to determine, by contrast, that the rights of all school chil-
dren under federal law had been vindicated and achieved.

   It is important that the judicial system not blow hot and cold with
respect to the litigants who come before it. For many decades the
courts impressed upon the Charlotte-Mecklenburg school district the
singular importance of desegregating its public schools and affording
each and every child an equal educational opportunity without regard
to race. See, e.g., Swann v. Charlotte-Mecklenburg Bd. of Educ., 402
U.S. 1, 15 (1971) ("[S]chool authorities are clearly charged with the
affirmative duty to take whatever steps might be necessary to convert
to a unitary system in which racial discrimination would be elimi-
nated root and branch.") (internal quotation omitted). Now that this
goal of unitariness has been reached, it would be inconsistent in the
extreme to punish the school board for doing the very thing the courts
have all along insisted that it do.

   My good dissenting brother urges us to view this matter as one of
equity or policy. I readily agree that the Grant and Capacchione plain-
tiffs have performed a substantial public service in achieving the uni-
tary status determination and in returning the school system to the
control of local authorities. As a matter of equity, however, there is
also something to be said for looking to the future, putting this litiga-
tion behind us, and spending public funds on the education of school
        BELK v. CHARLOTTE-MECKLENBURG BOARD         OF   EDUCATION       7
children rather than on opposing lawyers’ bills. The dissent predicts
that unitary status proceedings will become unaffordable in the
absence of fee shifting, but it is quite possible that school boards in
other locations will be moved to free themselves from court orders on
their own without the need for private interveners to enter the suit. In
all events, these are questions of pure policy and underscore the inad-
visability of courts debating the pros and cons of fee shifting in the
absence of a congressional declaration.

   It is simply untenable to impose a large fee obligation upon a pub-
lic school district for desegregating its schools. Congress has not
sanctioned such a course of action. It would mark a cruel sequel to
the Brown decision if, at the end of the day, federal courts were to
punish the successful completion of the desegregation process with an
unauthorized departure from the American rule.

TRAXLER, Circuit Judge, dissenting:

   I respectfully dissent from this court’s denial of Capacchione’s and
Grant’s motions to reconsider their claims to attorneys’ fees for the
role they played as private attorneys general in achieving a declara-
tion of unitary status. As a result of this declaration, CMS must have
a race-neutral student assignment plan in place no later than the 2002-
2003 school year unless its use of race is narrowly tailored to serve
a compelling governmental interest. The plaintiff-intervenors have
prevailed against CMS and have obtained a decree that alters the con-
duct of CMS toward all children attending public school in Mecklen-
burg County. Yet, this court vacates the district court’s fee award on
the ground that the plaintiff-intervenors have not prevailed.

   School desegregation cases are unique in the manner in which they
proceed. There are two basic steps in the court process to obtain uni-
tary status. In the first part, the plaintiffs seek to impose federal court
control over the school system and to have federal courts dictate pro-
cedures for the operation of the schools. When the court-ordered pro-
cedures have worked, the second part begins with the parties
returning to district court to obtain a declaration of unitary status and
the concomitant removal of federal court oversight.

  This case began in 1965 when the original Swann plaintiffs brought
a § 1983 action to convert CMS "into a unitary nonracial system
8       BELK v. CHARLOTTE-MECKLENBURG BOARD        OF   EDUCATION
wherein educational opportunities offered by [the board] are made
available to all students without regard to race or color." J.A. XXXIII-
16,162. The Swann plaintiffs succeeded in having CMS placed under
court order and participated in proceedings whereby the district court
adopted a sweeping desegregation plan. In 1975, the case was
removed from the active docket and the Swann plaintiffs were
deservedly and properly awarded $204,072.33 in fees and costs for
their service as private attorneys general in the first phase of the
desegregation effort.

   For the most part, this case remained inactive until 1997, when
Capacchione challenged CMS’s magnet schools program and, shortly
thereafter, amended her complaint to seek a declaration of unitary sta-
tus as well. Swann was reactivated and Capacchione intervened in
that action. Grant then moved for a declaration of unitary status and
also intervened in the Swann litigation. Thus began the second part
of the process.

   The Swann plaintiffs, however, did not want the second and final
phase of the judicial process to occur, so they fought a finding of uni-
tary status. Capacchione and Grant had to step in and prove to the dis-
trict court that what the Swann plaintiffs originally sought in their
lawsuit under § 1983 had, in fact, been achieved—that what had been
started in the 1960s had finally been completed and the vestiges of
segregation removed to the extent practicable. And like the Swann
plaintiffs, who received a fee award for work done before the case
was removed from the active docket, the plaintiff-intervenors now
seek, and are entitled to, their attorneys’ fees.

   No member of the court doubts that the Swann plaintiffs would be
entitled to fees under § 1988 had they been the ones to successfully
move for a declaration of unitary status. Yet in spite of the same mea-
sure of success by the plaintiff-intervenors, we deny them their fees.
By judicial fiat, plaintiff-intervenors in school desegregation cases
have been written out of § 1988. Should another case like this arise
where the original plaintiffs and the school board are content to let the
desegregation order remain in place long after the dual system has
been dismantled, parents demanding a return of local control will be
helpless. As the present case demonstrates, a declaration of unitary
status can be expensive ($1.49 million). I have no doubt that if our
        BELK v. CHARLOTTE-MECKLENBURG BOARD        OF   EDUCATION      9
decision had been on the books in 1997 neither Capacchione, nor
Grant, nor virtually any other public school parent in Mecklenburg
County could have afforded to seek a removal of the federal courts
from control of the school system. I find it ironic that in affirming the
district court’s declaration of unitary status but denying the prevailing
parties their fees, we simultaneously condemn other school districts
in our circuit to prolonged and unnecessary federal court control.

   Finally, while unfortunate that the school board should have to pay
such a large award, this is a risk it took when it decided to fight the
unitary status determination—not unlike the ill-fated decision it made
in the 1960s to fight the desegregation effort to begin with, when we
made it pay the fees of the original Swann plaintiffs. For attorneys’
fees purposes, this court has decided that one party can get its fees
under § 1988 for forcing the school board to abide by the law while
the other cannot. Therefore, I respectfully dissent.

   Judge Widener and Judge Wilkins have authorized me to indicate
that they join in this dissent.
