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modeled on the language of Title II and VII of the Civil Rights Act of 1964, 42 U.S.C. 2000a-3(b) and 2000e-5(k) (Senate Report No. 94-1011 to accompany S-2278, p. 2). Section 1988 specifically provides attorneys' fees.only to the "prevailing party." It is clear beyond dispute that appellants have not yet prevailed in establishing any claim against federal appellees. On this appeal the panel has: held at most. that questions are presented which should be presented to a jury. The two cases cited (Davis v~- Murphy, 587 F.2d 362 (C.A.. 7, 1978); and Wharton v. Knefel, 562 F.2d 550 {C.A. 8, 1977)) do not. support the allowance of attorneys" fees as. costs on, this appeal; they are clearly distinguishable since in. each of those. cases the opinion of the Court of Appeals disposed of the merits. Significantly, all of the interlocutory cases cited. in Senate Report No. 94-1011 to. illustrate the concept of.a prevailing. party are actions in which. either the plaintiffs prevailed on the merits of a claim (e.g., discrimination was. found but no relief had yet been given at the time of the fee award) or in which, albhowstt no judgment on the merits was entered, it is clear that plaintiffs" filing of the lawsuit produced a recovery of at least some of the 16/ relief sought. 16/ For instance, in Bradley v. School Board of the City of Rich- mond, 416 U.S. 696 (1974), cited in the Senate Report, attorneys’ fees were awarded only after plaintiffs had established the illegal- _ ity of the city's school desegregation plan, and, indeed, plaintiffs did not become entitled as "prevailing parties" to a fee award until the district court entered an order establishing a complete desegre- gation plan -- over a year after it was established that the school board's proposed voluntary plans were inadequate and after an interim plan had been in effect for one school year. The Supreme Court said: [cont'd] 1 2