Webb v. County Board of Education of Dyer County, Tennessee Brief for Plaintiff-Appellant-Cross-Appellee

    No. 83-1360

In* the

Bnptmt  C o u r t  o f  tip ?  I m t r f c  Btutm
October Term, 1983

Leonard W ebb,

v.
Petitioner,

County B oard oe E ducation op Dyer County, 
Tennessee, et al.,

Respondents.

o n  w r i t  o p  c e r t i o r a r i  t o  t h e  u n i t e d  s t a t e s  
c o u r t  o p  a p p e a l s  f o r  t h e  s i x t h  c i r c u i t

REPLY BRIEF FOR PETITIONER

J ulius L eV onne Chambers 
Charles Stephen R alston* 
Deborah F ins 
Gall J. W right

99 Hudson Street 
16th Floor
New York, New York 10013 
(212) 219-1900

A von N. W illiams, J r.
R ichard H. D inkins

203 Second Avenue North 
Nashville, Tennessee 37201

Attorneys for Petitioner 

*Counsel o f Record



Table of Authorities

Pages

C a s e s :

Burnett v. Grattan, ___  U.S.
, 82 L.Ed.Zd' 36 (1984) 9

Cannon v. University of Chicago,
441 U.S. 677 (1979) 16

Chandler v. Roudebush, 425 U.S.
840 (1976) 13, 16

Davis v. Los Angeles, 8 E.P.D.
% 9444 (C.D. Cal. 1974) 7

Hensley v. E c k e r h a r t , __ _ U.S.
____, 76 L .E d .2d 40 Passim

Maine v. Thiboutot, 448 U.S. 1
(1980) 5

Newman v. Piggie Park Enterprises,
377 F.2d 433 (4th Cir. 1967) 
modified, 390 U.S. 400 (1968) 7

New York Gaslight Club, Inc. v.
Carey, 447 U.S. 54 (1980) 12, 15, 18

Parker v. Matthews, 411 E. Supp.
1059 (D.D.C. 1976), a f f 'd 
sub nom., Parker v. Califano,
56l T72d 320 (D.C. Cir. 1977). 15



Pages

Patsy v. Florida Bd. of Regents,
457 U.S. 496 (1982) 14, 16

Smith v. Califano, 446 F. Supp. 
535 (D.D.C. 1978) 17

Stanford Daily v. Z u r c h e r , 64 
F.R.D. 680 (N.D. Cal. 1974) 7

Turner v. Commissioner of
Internal Revenue, 629 F .2d 
899 (3rd Cir. 1980) 10

Statutes and Regulations: 

5 U.S.C. § 504 12

28 U.S.C. § 2412 12

29 C.F.R. § 1613.271 17

42 U.S.C. § 1988 passim

42 U.S.C .§ 2000e-5(k) 17

Pub. L. 96-481, sec. 205(c) 12

Tenn. Code Ann. § 49-5-512 

Other Authorities:

3, 4

H.R. 15460 (94th Cong., 2d Sess.) 11



Pages

H. Rep. No. 94-1558 (94th Cong.
1976) 14, 17

122 Cong. Rec. p. S 17049-50
(daily ed., Sept. 29, 1976) 12

S. 2278 (94th Cong., 2d Sess.) 11



No. 83-1360

In the

SUPREME COURT OF THE UNITED STATES 

October Term, 1984

LEONARD WEBB,

P e t i t i o n e r , 
v .

COUNTY BOARD OF EDUCATION OF DYER 
COUNTY TENNESSEE, et a l .,

R espondents.

On Writ Of Certiorari To The Court Of 
Appeals For The Sixth Circuit

REPLY BRIEF FOR PETITIONER

P e t i t i o n e r  wishes to respond to a 

number of the factual and legal assertions 

made by the respondents and amicus curiae

in their briefs



2

I .

FACTUAL ISSUES

1. The respondents suggest that the 

time s p e n t  in the administrative process 

has in some way or degree been compensated 

for t h r o u g h  the 25% multiplier used by 

the d i s t r i c t  court. This assertion is 

s i m p l y  not supported by the record. The 

decision of the trial court makes it clear 

that it d i s c u s s e d  the fact of the lengthy 

p e n d e n c y  of this case before the local 

s c h o o l  board only as a factor which 

i n c r e a s e d  the contingent nature of the 

l i t i g a t i o n .  Of course, the district

c o u r t  s q u a r e l y  held that it could not 

c o m p e n s a t e  petitioner for the time

e x p e n d e d  in pursuing the administrative 

p r o c e s s ,  and there is nothing in its 

d i s c u s s i o n  of the contingency factor that 

is i n c o n s i s t e n t  with that holding, which



3

p r e s e n t s  the issue before this Court. 

A l t h o u g h  the respondent appealed the 

contingency question to the Sixth Circuit, 

it did not file a cross-petition for cer­

t i o r a r i  here. Therefore, it cannot now 

seek to raise the validity of the con­

tingency adjustment.

2. The respondents assert, without 

c i t i n g  authority, that the Board of E d u ­

c a t i o n  was not empowered to entertain the 

p e t i t i o n e r ' s  federal civil rights claims. 

H o w e v e r ,  the statute establishing the 

right to a hearing contains no limitation

w h a t s o e v e r on the grounds on which an

e m p l o y e e may challenge a decision to

d i s c h a r g e him, but rather states that a

t e a c h e r  "shall have full opportunity to 

p r e s e n t  his contentions." Tenn. Code 

Ann. § 49-5-312(4). In fact, in this 

case the Board of Education received



4

l e n g t h y  testimony concerning p e t i t i o n e r ’s 

c l a i m  that the decision to discharge him 

was r a c i a l l y  discriminatory. Surely it 

c a n n o t  s e r i o u s l y  be argued that if, for 

example, there had been an admission that 

p e t i t i o n e r  had been fired because of a 

p o l i c y  that black teachers could not 

discipline white students, the Board could 

not r e v e r s e  the decision and reinstate 

h i m .

3. R e s p o n d e n t s  assert that a state 

administrative tribunal would not have the 

a u t h o r i t y  itself to award fees. However, 

such is apparently not the case under 

T e n n e s s e e  law. The statute that provides 

for the right to a hearing also provides 

that the ’’losing party" shall pay the 

costs of the proceeding. Tenn. Code Ann., 

§ 49-5-512(5). There appears to be nothing 

that would prevent the Board from paying a



5

t e a c h e r ' s  a t t orney when it awarded costs 

in the t e a c her's favor. In any event, 

even if a particular state administrative 

a g e n c y  i t s e l f  did not have authority to 

award fees, a state court could do so 

p u r s u a n t  to 42 U.S.C. § 1988. See, Maine 

v. T h i b o u t o t , 448 U.S. 1 (1980).

4. Respondents also urge that 

c e r t a i n  of the attorney time expended 

d u r i n g  the Board hearings should not have 

been so expended. This argument, however, 

does not deal with the issue of whether 

time can be compensated at all, but 

w h e t h e r  p a r t i c u l a r  work done was in fact 

r e a s o n a b l e .  Neither the district court 

nor the court of appeals addressed the 

g u e s t i o n  whether the time requested was 

r e a s o n a b l y  expended since they ruled that 

as a m a t t e r  of law none of it was compen-

sible .



6

LEGAL ISSUES

1. Both the respondents and amicus 

attempt to extend this C o u r t ’s decision in

H e n s l e y  v. E c k e r h a r t , ______ U.S. _____ , 76

L . E d . 2 d  40 (1983), by arguing that it

holds that a prevailing party be compensa­

ted only for those parts of a proceeding 

in w h i c h  he prevails. H e n s l e y , however, 

does not so hold. Rather, it was

concerned with reasonable fees and awards 

v i s - a - v i s  "different claims , " 76 L .E d .2d

at 51 ( e m p h a s i s  added), and not entitle­

ment v i s - a-vis different phases of 

e n f o r c i n g  a claim in an action or pro­

c e e d i n g ,  as respondents would have it. It 

w o u l d  be an absurd and burdensome waste 

of a c o u r t ' s  time if it had to separate 

out each motion, discovery request, or 

ruling on evidence on which the prevailing

I I .



7

p a r t y  lost. This is what the reading of

H e n s l e y  urged by respondents and amicus 
1

would require.

But Hensley relied on the legislative 

h i s t o r y  of § 1988 which cites S tan Ford

Daily v. Zurcher, 64 F.R.D. 680 (N.D. Cal. 

1974), where the district court squarely 

held that a prev ailing plaintiff should 

not be denied fees for a lost motion for a 

p r e l i m i n a r y  injunction, and Davis v . Los 

A n g e l e s  , 8 E.P. D. 11 9444 (C.D. Cal. 

1974), in which fees were similarly 

a l l o w e d  for the entire proceeding even 

t h o u g h  v a rious motions had been lost.

1 Indeed, the logic of respondents' position would 
require fees to be denied to a plaintiff for work 
done at the trial court level if he lost at trial, 
even though he won an appeal and obtained complete 
relief. Such, of course, is not the law. See, 
Newman v. Piggie Park Enterprises, 377 F.2d 433, 
436-37 (4th Cir. 1967), modified', 390 U.S. 400 
(1968).



- *  8

Under H e n s l e y , of course, it is the 

u l t i m a t e  result that matters. For, as 

this Court held, "the district court 

s h o u l d  focus on the significance of the 

overall relief obtained by the plaintiff." 

76 L .E d .2d at 51.

2. N e i t h e r  respondents nor amicus 

s q u a r e l y  a d dress petitioner's central 

a r g u m e n t ,  that since the attempt to 

o b t a i n  r e l i e f  through the administrative 

p r o c e s s  was time reasonably expended to 

v i n d i c a t e  federal civil rights, and since 

such time would have been billable to the 

c l i e n t  in the exercise of normal billing 

j u d g m e n t ,  under Hensley the time is 

c o m p e n s i b l e .

As we pointed out in our main brief 

the time was spent doing work that would 

o t h e r w i s e  have had to be done both 

b e f o r e  the complaint was filed and in



9

d i s c o v e r y .  Although respondent tries to 

minimize the extent to which a case should 

be i n v e s t i g a t e d  before a complaint is 

filed, this Court has recently expressed 

the o p p o s i t e  view in Burnett v. Grattan, 

U.5. _____, 82 L . E d . 2 d 36, 45 (1984):

L i t i g a t i n g  a civil rights claim 
requires considerable preparation. An 
i n j u r e d  person must recognize the 
c o n s t i t u t i o n a l  dimensions of his 
injury. He must obtain counsel or 
p r e p a r e  to proceed pro s e . He must 
conduct enough investigation to draft 
p l e a d i n g s  that meet the requirements 
of federal rules. . . . .  At the 
same time, the litigant must look 
ahead to the responsibilities that 
immediately follow filing of a 
c o m p l a i n t .  He must be prepared to 
withstand various responses such as a 
m o t i o n  to dismiss as well as to 
undertake additional discovery.

The work done in the administrative 

process here was directly parallel to and 

accomplished many of these tasks.



10

3. Both the respondents and amicus, 

in r e s p o n d i n g  to petitioner's argument 

that the term "or proceeding" will have no 

m e a n i n g  if it does not encompass state 

a d m i n i s t r a t i v e  proceedings, rely on

l a n g u a g e  in an earlier version of § 1988 

w h i c h  p r o v i d e d  for fees in certain pro­

c e e d i n g s  brought under the Internal

R e v e n u e  Code. Their discussion entirely
2

overlooks the history of this provision.

S e c t i o n  1988 as first proposed in 

both the House and the Senate did contain 

the word "proceedings" but did not contain 

the l a n g u a g e  relating to proceedings 

b r o u g h t  by the Internal Revenue Service.

With all due respect to the court of appeals, the 
decision in Turner v. Commissioner of Internal Re 
venue, 629 F.2d 899 (3rd Cir. 1980) also does not 
adequately discuss this history.



11

Thus, as it passed the House and as it 

was r e p o r t e d  out of the Senate committee, 

the statute read:

Be it enacted by the Senate and House 
of Representatives of the United 
S t a t e s  of America in Congress assem- 
bled, Revised Statutes Section 722 
(4 2 U.S.C. Sec. 1988) is amended by 
adding the following: "In any action 
or proceeding to enforce a provision 
of section 1977, 1978, 1979, 1980 and 
1981 of the Revised Statutes, or 
Title VI of the Civil Rights Act of 
1964, the court, in its discretion, 
may allow the prevailing party, other 
than the United States, a reasonable
at t o r n e y 's 
c o s t s " .

fee as part of the

H.R. 15460 (94th C o n g ., 2d S e s s .); S . 2278

(94th Cong., 2d Sess. ). Since the

p r o v i s i o n  covered an I f action or pro-

c e e d i n g "  without any reference what-

s o e v e r  to the Internal Revenue Code,

C o n g r e s s  must have contemplated that

s o m e t h i n g  else would be covered by the

statute.



12

The provision dealing with the

I n t e r n a l  R e venue Code was only inserted

d u r i n g  the debates on the Senate Floor to
3

end a filibuster, and when the Equal

A c c e s s t 0 Justice Act was e n a c t e d , (5

U . S .C . § 504; 28 U.S.C. § 2412) , the
4

p r o v i s i o n  was deleted from § 1988.

H o w e v e r ,  the language "action or pro­

c e e d i n g "  was retained, again showing that 

C o n g r e s s  intended that "proceeding" 

e n c o m p a s s  something other than a court 

a c t i o n  or a "proceeding" to enforce the 

I n t e r n a l  R e v enue Service. New York Gas­

light Club, Inc, v. C a r e y , 447 U.S. 54 

( 1980 ), establishes that the term "or 

p r o c e e d i n g "  includes all available 

a d m i n i s t r a t i v e  proceedings, state or

3
122 Cong. Rec. p. 17049-50 (daily ed., Sept. 29, 
1976).

Pub. L. 96-481, Sec. 205(c).



13

federal.

4. Respon d e n t s  and amicus attempt 

to rely on various snippets from the 

l e g i s l a t i v e  history of § 1988 to urge 

that, d e s p i t e  its clear language, the 

intention of Congress was that the statute 

only cover actions in court. Of course, 

it is axiomatic that the clear language of 

a s t a t u t e  cannot be so overridden. See, 

e . g . , C h a n d l e r  v. R o u d ebush, 425 U.S. 840 

(1976) .

In any event, the statements quoted 

by r e s p o n d e n t s  and amicus are at best 

a m b i g u o u s .  None of them state that 

a d m i n i s t r a t i v e  proceedings are not to be 

c o v e r e d .  At most, they show a natural 

c o n c e n t r a t i o n  on the main concern of the



14

Act's s upporters, that court proceedings, 

with their attendant high costs, be fully 

compensated for.

Indeed, contrary to respondent's 

p o s i t i o n ,  other portions of the legis­

l a t i v e  h i s t o r y  are fully consistent with 

an i n tent to cover all available alter­

n a t i v e  r o u t e s  for settling constitu-
5

tional and civil rights claims. Thus, the 

House R eport makes it clear that a dis­

p o s i t i o n  of a claim short of adjudication 

by a court is to be encouraged by ensuring 

that fees will be awarded. H. Rep. No. 

9 4 - 1 5 5 8  , p. 7. The report cites with

An intent not to penalize, while not requiring, 
recourse to available state remedies is also con­
sistent with the intent of Congress when it ori­
ginally enacted 42 U.S.C. § 1983. As this Court 
noted in Patsy v. Florida Bd. of Regents, 457 U.S. 
496, 506 (1982), ". . . many legislators interpreted 
[§1983] to provide dual or concurrent forums in the 
state and federal system, enabling the plaintiff to 
choose the forum in which to seek relief."



15

a p p r o v a l  Parker v. M a t t h e w s , 411 F. Supp.
6

1059 (D.D.C. 1976), a case with facts

strikingly similar to the present one. In 

P a r k e r  the plaintiff, a federal employee 

c l a i m i n g  e m p l o y m e n t  discrimination, had 

u n s u c c e s s f u l l y  pursued her administrative 

r e m e d i e s  and had filed an action in 

federal court. Following the filing of the 

action, the agency reversed itself and 

found that there had been discrimination. 

The case was then settled, and the 

district court awarded fees for both the 

administrative and court proceedings.

Thus, when it enacted § 1988 con-

t a i n i n g  the same language "action or

p r o c e e d i n g "  that was included in Title

VII, C o n g r e s s  was fully aware that that

Aff'd sub nom. Parker v. Califano, 561 F.2d 320 (D.C. 
Cir. 1977), cited with approval in New York Gaslight 
Club, Inc, v. Carey, 447 U.S. at 62, n, 2.



16 -

p h r a s e  had been interpreted to include 

a d m i n i s t r a t i v e  proceedings. It must, 

t h e r e f o r e ,  be assumed that a similar 

i n t e r p r e t a t i o n  was intended to govern the 

award of fees under the new Act. See 

C a n n o n  v. University of C h i c a g o , 441 U.S. 

677, 696-97 (1979).

5. Finally, respondent and amicus 

urge that p o l i c y  considerations support 

t heir attempt to read the words "or 

p r o c e e d i n g "  out of the Act. Not only may 

not a l l e g e d  p olicy concerns override the 

language and intent of a statute (Chandler 

v. R o u d e b u s h , 425 U.S. at 863-64; Patsy v . 

F l o r i d a  Bd . of R e g e n t s , 457 U.S. 496, 

512-13 (1982)), but, as we have discussed 

in our main brief, sound policy consid­

e r a t i o n s  support the clear meaning of the 

Act. Again, encouraging recourse to 

a l t e r n a t i v e  available remedies will



" [ h elp] to lessen docket congestion" (H.

Rep. No. 94-1558, p. 7). Here, although

p e t i t i o n e r  was unsuccessful at the

a d m i n i s t r a t i v e  level, his pursuit of that

r e m e d y  m a n i f e s t l y  assisted the speedy

r e s o l u t i o n  of the case once it had been
7

filed in court. Moreover, claims that 

m ight have led to the filing of a federal 

suit may be winnowed out if parties are 

encouraged to pursue an available alterna-

A person who successfully pursues a state 
r emedy may be awarded fees at the ad­
ministrative level. Cf. Smith v. Califano, 
446 F. Supp. 535 (D . D .C~. 1978) , holding 
that federal agencies have the power to 
award fees in Title VII actions even 
though the statute, 42 U.S.C. § 
2000e-5(k), speaks of awards by a court. 
S u b s e g u e n t 1y , the Equal Employment 
O p p o r t u n i t y  Commission amended the 
regulations governing federal EEO claims 
to authorize such awards. 29 C.F.R. § 
1613.271(c). Alternatively, fees may be 
awarded by a state court, see supra at pp. 
4-5. Thus, it is not necessarily the case 
that an action would have to be filed in 
federal court for fees in such a case.



18

tive r e m e d y  that can demonstrate that a 

perceived consitutional violation does not 

in fact exist. There are no policy 

c o n s i d e r a t i o n s  which would support a 

r e s u l t  that would not only encourage, but 

v i r t u a l l y  compel, a litigant to file in 

federal court at the earliest possible 

time if he is to obtain full relief. New 

York G a s l i g h t  Club, Inc, v. C a r e y , 447 

U.S. at 6 5, 66 n. 6.

Conclusion

The decision below, and the arguments 

of respondents, come down to the following 

r e a s o n i n g :  because resort to a mandatory

administrative proceedings is a reasonable 

e x p e n d i t u r e  of attorney time, then the 

only r e a s o n a b l e  expenditure of time is 

r e c o u r s e  to a mandatory proceeding. Of 

c o u r s e ,  the conclusion is a perfect 

e x a m p l e  of a false syllogism along the



19

o rder of, " s i n c e  all rabbits are animals 

then all a n i m a l s  are rabbits," Section 

1988 no where refers to mandatory work, 

but r e q u i r e s  fees for reasonable work. 

S i n c e  petiti o n e r ' s  attempt to obtain 

r e l i e f  t h r o u g h  a proceeding before the 

s c hool board was reasonable, it is 

compensible under the Act.

For the foregoing reasons, the 

d e c i s i o n  of the court below should be 

r e v e r s e d .



Respectfully submitted,

3ULIUS LeVONNE CHAMBERS 
CHARLES STEPHEN RALSTON* 
DEBORAH FINS 
GAIL 3. WRIGHT

99 Hudson Street 
16th Floor
New York,New York 10013

AVON N. WILLIAMS, 3R. 
RICHARD H. DINKINS

203 Second Avenue North 
Nashville, Tenn. 37201

Attorneys for Petitioner

* Counsel of Record



v ‘i
I 3 Z l o

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