Webb v. County Board of Education of Dyer County, Tennessee Petition for Writ of Certiorari

    No. 83-

I n THE

grtiinmtr (tort xrf tljr Inttrh flairs
O ctober T erm , 1983

------------------------------f — — —

L eonard W ebb,

v.
Petitioner,

C o u n ty  B oard of E ducation  of 
D yer  C o u n ty , T ennessee , et at.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

J ack  Greenberg 
C harles S teph en  R alsto n* 
D eborah F ins

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

A von N. W illiam s , J r .
R ichard H. D in k in s

203 Second Avenue North 
Nashville, Tennessee 37209

Attorneys for Petitioners

* Counsel of Record



Questions Presented

The Court of Appeals for the Sixth 
Circuit held that the petitioner could not 
recover attorneys’ fees under 42 U.S.C. 

§ 1988 in a civil rights case for work done 

in an administrative proceeding that was 
not required to be exhausted as a condition 

to filing the action in federal court. 

Four other circuits have held to the 

contrary.
Should the Court resolve this conflict 

between the circuits on this important 
issue that concerns the effective enforce­

ment of the civil rights acts?

PARTIES
Leonard Webb, petitioner. County 

Board of Education of Dyer County, Tennes­

see, Franklin Cobb, Jimmy Adams, Ernest 
Gullett, John 11. Hooper, Terry W. Jones, 
Mary F . McCauley, William Pierce, Dan 

Tickle, Johnny Earl Vickers, Herman Reed,
- i -

r



Dwight L. Hedge, Clayton Hayes, Bill 
Deere, Charles Maxey, Harold Willis, A. W.
Roody, Bobby Switzer, Jerry Muzzall 

Fisher, Allen Hines, Franklin Rhodes, 

Vinson, Helen Bell, Ira Powers, 

Bowen, respondents.

, John 
C. J.
Bobby



TABLE OF CONTENTS
Page

Question Presented ................  i

Parties ........      i
Citation to Opinions Below .......... 2

Jurisdiction .........................  2
Statutory Provision Involved .......  3

Statement of the Case ............... 3

Reasons for Granting the Writ ....... 7

I. The Case Presents An
Important Issue Affecting
the Enforcement of the Civil
Rights Laws . .......  7

II. The Decision Below Conflicts 
With The Decisions of Other 
Courts of Appeals ...........  10

III. The Decision Below Conflicts 
With Decisions of This
Court ..............     12

IV. The Decision E<elow Is 
Inconsistent With The 
Statute And Conflict With 
Congressional Purpose ........  18

CONCLUSION .........    21

- i i i -



TABLE OF AUTHORITIES
Cases:

Page
Bartholomew v, Watson, 665 F.2d 910

(9th Cir. 1982) . ................ 11

Blow v. Lascares, 523 F. Supp. 913 
(N.D.N.Y. 1981) aff'd, 668 
F. 2d 670 (2nd Cir. 1981 ) ......  11

Brown v. Bathke, 588 F.2d 634
(8th Cir. 1 978) ................  1 1

Chrapliwy v. Uniroyal, Inc., 670
F .2d 760 (7th Cir. 1982) ___ ... 9,11

Ciechon v. City of Chicago, 686
F. 2d 51 1 (7th Cir. 1982) ......  1 1

Estes v. Tuscaloosa County, 696
F.2d 898 (11th Cir. 1983) ...... 12

Johnson v. United States, 554 F.2d
632 (4th Cir. 1977) ............ 15

Kulkarni v. Alexander, 662 F.2d
758 (D.C. Cir. 1978) ............ 11

Latino Project, Inc. v. City of 
Camden, 701 F.2d 262
(3rd Cir. 1983) ................  1 1

Maine v. Thiboutot, 448 U.S. 1
(1989) .......................... 17

New York Gaslight Club, Inc. v.
, Carey, 447 U.S. 54

(1980)   passim

Parker v. Califano, 561 F.2d 320
(D.C. Cir. 1977) ...............  15

IV



Page

Patsy v. Florida Bd, of Regents,
U.S. _ __, 73 L • Ed . 2d

172 (1 982) ................. . 9,14
Redd v. Lamber, 674 F.2d 1032 (5th

Cir. 1 982)  ................  12

Sullivan v. Commonwealth of Penn­
sylvania Dept, of Labor and 
Industries, 663 F.2d 443
(3rd Cir. 1981 ) .......... . ..... 9,12

Other Authorities

28 U.S.C. § 1254(1 ) .................. 2

28 U.S.C. § 1988 ...............    passim
42 3 U.S.C. § 1983 ...................  3,14,18

42 U.S.C. § 1985 ...................  3,1 4

42 U.S.C. § 1 986 ....................  3,1 4
42 U.S.C. § 20OOd .......    3

42 U.S.C. § 2000e-5 .......    8

42 U.S.C. § 2000e-1 6 ........   14
42 U.S..C, § 2000a-3(b) ..............  19

H. Rep. No. 94-1558 (94th Cong.,
2d Sess. , 1 976 ) ................  20

S. Rep. No. 94-1011 (94th Cong.,
2d Sess., 1976) ...... .........  20

v



No. 83-
IN THE

SUPREME COURT OF THE UNITED STATES 

October Term, 1983

LEONARD WEBB,
Petitioner, 

v.
COUNTY BOARD OF EDUCATION OF 
DYER COUNTY, TENNESSEE, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF 
APPEALS FOR THE SIXTH CIRCUIT

Petitioner, Leonard Webb, prays 

that a Writ of Certiorari issue to review 

the judgment of the United States Court of 

Appeals for the Sixth Circuit entered on 
August 29, 1983, petition for rehearing 
denied November 16, 1983, affirming the



2

decision of the United States District 

Court for the Western District of Tennessee.

CITATION TO OPINIONS BELOW 
The opinion of the Court of Appeals is 

reported at 715 F.2d 254 and is set forth 
in the Appendix at pages la-25a. The order 
of the Court of Appeals denying rehearing 

is unreported and is set forth in the 

Appendix at pages 26a-27a. The opinion of 

the District Court is unreported and is set 
forth in the Appendix at pages 28a-43a.

JURISDICTION

The judgment of the Court of Appeals 
affirming the decision of the District 

Court was entered on August 29, 1983. A 
timely petition for rehearing and for 
rehearing en banc was filed and was denied 
on November 16, 1983. Jurisdiction of this 

court is invoked pursuant to 28 U.S.C.
5 1254(1).



3

STA T U T O R Y  P R OVISION INVOLVED 

This case involves 28 U.S.C. § 1988,

which provides in pertinent part:
In any action or proceeding 

to enforce a provision of sections 
1977, 1978, 1979, 1980, and 1981
of the Revised Statutes, title IX 
of Public Law 92-318 . . . or
Title VI of the Civil Rights Act 
of 1964 . . . the court, in its
discretion, may allow the ,prevail­
ing party, other than the United 
States, a reasonable attorney's 
fee as part of the costs,
(R. S. § 722; Oct. 19, 1976, P. L. 
94-559, § 2, 90 Stat. 2641.)

STATEMENT OF THE CASE 

The present action was brought pursu­

ant to 42 U.S.C. §§ 1988, 1983, 1985, 1986, 
1988 and 2Q00d. The petitioner, Leonard 

Webb, was a tenured black elementary school 
teacher who was discharged from his job in 
1974 in the wake of the desegregation of 

the schools in Dyer County, Tennessee. The 

discharge was allegedly for "unprofessional 
conduct and insubordination". However, the



4

Board did not provide petitioner a copy of 

the written charges against him or give him 
a hearing. After receiving the letter of 

dismissal, petitioner hired counsel to 
represent him. Counsel requested an 

immediate hearing before the Board of 
Education which was ultimately granted. 

There were a series of hearings at which 
counsel elicited testimony from several 

witnesses, including the school board’s 

employees, that tended to prove that Mr. 
Webb had been fired because of racial 

discrimination. At the school board 
hearings counsel raised both equal protec­

tion and due process objections to the 

discharge.
In August, 1978, the board rendered 

its final decision upholding the original 
decision to terminate petitioner. Peti­

tioner then filed the present action in 
federal court challenging his discharge on



5

both equal protection and due process 
grounds.

The defendants filed motions for 

summary judgment. In opposition to those 

motions respondent filed the transcript of 

the proceedings before the school board. 
While the motions were pending, the parties 
reached a settlement under which respondent 
received damages in the amount of $15,400, 

and a decree ordering the Board to treat 

the plaintiff as having resigned and to 

place no disparaging remarks on his 

professional record. The district court 
accepted the settlement with only the 

transcript of the state administrative 
proceedings before it as evidence of the 
facts.

Following settlement on the merits the 

parties attempted to settle the question of 

attorneys' fees. Although they were in 
agreement that respondent was the prevail­



6

ing party and should receive some fees, 

they were unable to agree on the amount. A 

motion was therefore filed before the 

District Court, which awarded fees for the 
work performed following the filing of the 
complaint in federal court. Fees were 

denied for work performed before the 
complaint was filed on the ground that the 

court believed no authority existed 

for the award of attorneys' fees under 42 

U.S.C. § 1988 for work in a state adminis­

trative proceeding that was not required to 

be exhausted as a condition to filing an 
action in federal court. (App. pp. 31a- 

41a) On appeal a panel of the Sixth 

Circuit affirmed the District Court's order 
and rehearing en banc was denied. {App. 

pp. 1a-27a.)



7

r e a s o n s  f o r  g r a n t i n g  t h e  w r i t

I.

THE CASE PRESENTS AN IMPORTANT 
ISSUE AFFECTING THE ENFORCEMENT OF 
THE CIVIL RIGHTS LAWS

The present case involves an 
important issue relating to the circum­

stances under which fees may be awarded 

to a party who prevails on a civil rights 

claim as a result of work done in a state 

administrative proceeding prior to the 
actual filing of an action in federal 

court. The decision below, as the court 

admitted (App. pp. 14a-16a), is in square 

conflict with the decisions of four other 
circuits, is in conflict with the decision 

of this Court is New York Gaslight Club, 
Inc, v. Carey, 447 U.S. 54 (1980), and is

contrary to the intent of Congress when it 
enacted the Civil Rights Attorneys' Fee Act
of 1976.



8

The importance of the issue arises 

both from the frequency with which it has 
arisen in the lower courts and from 

the potential deleterious effect on the

workload of the federal courts if

allowed t o stand. A total o f

courts of appeals have dealt with the issue 
in various ways, as will be discussed in 
Section II below, and it is likely to 

be a recurring issue in a number of con­

texts. For example, in a proceeding cog- 

nizible under Title VII of the Civil Rights 

Act of 1964, a party may seek relief not 

only pursuant to state and federal ad­

ministrative proceedings which must be
exhausted as a precondition to filing an

1/action under title VII, but also may pur­
sue alternative remedies such as complain­

1/ 42 U.S.C. § 2000e-5(b)-(e).



9

ing to the Office of Federal Contract
2/Compliance of the Department of Labor
3/or through a union grievance procedure.

The often successful use of such 
proceedings would necessarily be dis­

couraged if potential Title VII plaintiffs 

knew that counsel fees had to be paid out 
of their own pockets. Conversely, attorneys 
who have taken such cases, as is often the 

fact, on a contingency basis would be loath 

to pursue such remedies with the knowledge 
that they would receive no compensation for 

their work even if successful.
The only result, as noted by this 

Court in New York Gaslight Club, Inc, v.

2/ See, Chrapliwy v. Uniroyal, Inc., 670 
F. 2d 760 ( 7th Cir. 1982).
3/ See, S u _11_ jl v a n_ v_._Commonwealth of
Pennsylvania Dept, of Labor and Industy, 
663 F.2d '443 (3rd Cir. 1981).



10

Carey, 447 U.S. at 65-66, would be to 

encourage unnecessarily the immediate 

filing of actions in federal court and the 
circumvention of alternative remedies. 

This, of course, would mean that cases 

would be either unnecessarily filed or that 
the use of alternative remedies to dispose 

of cases would be avoided. This would 
burden the courts and would be contrary to 

the intent of Congress when it passed both 

the various civil rights statutes and 

Attorneys' Fee Act.

II.
THE DECISION BELOW CONFLICTS WITH THE
DECISIONS OF OTHER COURTS OF APPEALS

The court of appeals below held that 
only administrative remedies required to be 

exhausted as a precondition for filing an 
action in federal court could result in 

attorneys' fees. Moreover, ignoring the 
plain language of the statute, they read



the legislative history of the 1976 Attor­

neys' Fee Act as intending it to cover only 

suits in court and not in administrative 
proceedings. The courts of appeals of the 

Seventh, Eighth, Ninth and District of 
Columbia Circuits, in a variety of con­

texts, have reached inconsistent results. 

See, Ciechon v. City of Chicago, 686 F.2d 
511 (7th Cir. 1982); Chrapliwy v. Uniroyal, 
Inc^, 6 7 0 F . 2d 7 60 ( 7th Cir. 1982);

Brown v. Bathke, 588 F.2d 634 (8th Cir.

1978); Bartholomew v. Watson, 665 F.2d 910 

(9th Cir. 1982); Kulkarni v. Alexander, 
662 F.2d 758 (D.C. Cir. 1978). Four other 

circuits, on the other hand, have decided 

the issue similarly to the Sixth Circuit. 

See Blow v. Lascares, 523 F. Supp. 913 
(N.D.N.Y. 1981), affjd, 668 F.2d 670 (2nd

- 1 1 -

Cir. 1981); Latino Project Inc, v. City of



12

Camden, 701 F.2d 262 (3rd Cir. 1983);“ Redd 
v. Lambert, 674 F.2d 1032 (5th Cir. 1982); 

and Estes v. Tuscaloosa County, 696 F.2d 

898 (11th Cir. 1983). Because of the

importance of the issue, certiorari should 

be granted to resolve this conflict.

III.
THE DECISION BELOW CONFLICTS WITH 
THIS COURT'S DECISIONS OF THIE 
COURT

In New York Gaslight Club, supra, this 

Court held that attorneys' fees may be 

awarded in a Title VII action for work done 

in a state administrative proceeding prior 

to the filing of an action in federal 

court. The decision in Carey was based 

primarily on an analysis of the language of

4/ But see, Sullivan v. Commonwealth of 
Pennsylvania Dept, of Labor and Industries, 
663 F.2d 443 (3rd Cir. 1981), holding 
that the time for work done in a union 
arbitration proceeding that contributed to 
the successful outcome of a Title VII 
case was compensable.



1 3

the statute which provides that fees may be 

awarded in any "action or proceeding" under 
Title VII. In so deciding the Court relied 

on the legislative history of the 1976 Act 

since the language of the Acts were vir­

tually identical and their purposes were 

the same. Section 1988 also provides that 

fees may be awarded in "any action or 
proceeding" to enforce various civil rights 

statutes.
The Court below distinguished Carey on 

the ground that it involved state adminis­
trative proceeding that had to be exhausted 

before a Title VII action could be brought. 
Petitioner contends that Carey is not so 
limited and, indeed, such a reading of 

Carey would essentially nullify a provision 

of the statute.
It is true that under Title VII it is 

required that a potential plaintiff first 

exhaust certain administrative remedies



1 4

before bringing suit and no such exhaustion

requirement is imposed as a condition to
bringing an action under 42 U.S.C. §§ 1981 

5/- 1986.~ However, the Title VII require­
ment is only that complainants file with 

the Equal Employment Opportunity Commis­

sion, and with a state agency if one is 

available. There is no requirement that 

complainants do any more than to wait the 
required length of time before receiving 

a right to sue letter and bringing an 
action. Similarly, under the provision of 

Title VII governing federal employees 

(42 U.S.C. § 2000e-16) all that is required 
is that an administrative complaint be 

filed. Section 2000e-16(c) specifically 

provides that an action may be filed in 
federal court after 180 days have elapsed

5/ Patsy v. Florida Bd. of Regents, 
U.S. , 73 L.Ed. 2d 172 (1982).



regardless of whether or not anything has 
been accomplished in the administrative 

process.
In Carey however, as well as in the

6/
federal employment cases cited there with 

7/
approval, the award of fees was affirmed 
where the complainant had done much more 

than simply comply with the minimal exhaus­

tion requirements imposed by the statute. 

In Carey the complainant had pursued her 
administrative remedies through to de­

cision although it is clear she could 

have terminated them and gone into federal 

court at a far earlier stage. Similarly, 

in the federal sector cases, such as Parker 

v. Califano, 561 F.2d 320 (D.C. Cir. 1977), 
the complainants had stayed in the adminis-

- 1 5 -

6/ Parker v. Califano, 561 F.2d 320 (D.C. 
Cir. 1977); Johnson v. United States, 554 
F. 2d 632 (4th Cir. 1977).

7/ 447 U.S. at 61, n.- 2.



16

trative process much longer than the 

required 180 days and had received full 

relief rather than exercising their right 
to go to federal court at an earlier 

stage.
There is no hint or suggestion in 

Carey that fees are awardable only for work 

or time required to be spent in the ad­

ministrative process. Rather, Carey was 

based on the principle that complainants 
should be encouraged to utilize to the full 
available alternative remedies to avoid the 
otherwise natural result of their spending 
the minimal time required in the adminis­

trative process before coming to federal 

court if that were the only place where 

fees could be obtained. 447 U.S. at 65.

Moreover, the ruling that fees are 

available under § 1988 only for legal work 
done in connection with or as a required 

precondition for an action brought in



1 7

federel court is fundamentally inconsistent 

with this Court's decision in Maine v . 

Thiboutot, 448 U.S. 1 (1980). There, this

court held that fees were recoverable in a 

state court "action" brought to enforce 

rights protected by § 1983. It necessarily 

rejected the principle that fees were 
limited to federal court actions, and it 
follows that the plain meaning of the 
statute also encompasses a state adminis­
trative "proceeding" brought to enforce the 

same statute.
Therefore, the decisions of the 

Seventh, Eighth, Ninth and District of 

Columbia Circuits holding that fees are 

available for work done in any available 

alternative remedy is fully consistent with 
Carey and Thiboutot and indeed is required 
by the rationale of those decisions. 

Conversely, the decision of the court below 
is in fundamental conflict with them



18

IV.

THE DECISION BELOW IS INCONSISTENT 
WITH THE STATUTE AND CONFLICTS WITH 
CONGRESSIONAL PURPOSE

The effect of the Sixth Circuit's 

decision is simply to read out of 42 U.S.C. 

§ 1988 the language providing for attor­

neys' fees in any "proceeding" as well as 
in any "action." Such a result is contrary 

to basic principles of statutory construc­
tion, as well as with the decision in 

Carey. The rationale for the decision 
below was that petitioner was not required 
to exhaust the available remedy of seeking 

a hearing before the School Board as a 

precondition as to filing an action in 

federal court since there is no exhaustion 
requirement for actions brought under 42

U.S.C. § 1983.



The problem with the Sixth Circuit's

reasoning is that under no circumstances

need any administrative remedy be exhausted

before an action can be brought under that
1/statute. Therefore, as a practical mat­

ter there would never be any "proceeding" 
other than a court "action" for which 

attorneys' fees could be awarded. Such a 

result cannot be allowed, particularly 
since when Congress wished to exclude the 

recovery of fees for proceedings other than 

a court action, it has clearly done so.
Thus, under Title II of the Civil Rights 

9/Act of 1964 fees are obtainable only for 
"actions" brought in federal court even 

though there are available state adminis­
trative proceedings to enforce the right to 

equal access to public accommodations in

8/ Patsy v. Florida Bd. of Regents, supra.
9/ 42 U.S.C. § 2000a-3(b ).



20

many jurisdictions.

Further, the court of appeals' deci­

sion conflicts with the clear intent of 

Congress when passing the Civil Rights 

Attorneys' fee Act since its basic purpose 

was to encourage and facilitate the en­

forcement of civil rights through making
10/attorneys' fees broadly available. Any 

interpretation of the statute that con­
flicts with that purpose should be rejected.

10/ See S. Rep. No. 94-1011 (94th Cong. 2d 
Sess.) pp. 2-3; H. Rep. No. 94-1558 (94th 
Cong. 2d Sess.) pp. 1-3.



21

Conclusion

For the foregoing reasons, the peti­

tion for writ of certiorari should be
granted and the decision below reversed.

Respectfully submitted,

JACK GREENBERG
CHARLES STEPHEN RALSTON*
DEBORAH FINS

99 Hudson Street 
16th Floor
New York, N.Y. 10013

AVON N. WILLIAMS, JR.
RICHARD H. DINKINS

203 Second Avenue North 
Nashville, Tennessee 37209

Attorneys for Petitioners
* Counsel of Record



APPENDIX



DECISION OF COURT OF APPEALS 
Aug. 29, 1983

LEONARD WEBB,
Plaintiff-Appellant 
Cross-Appellee,
v.

COUNTY BOARD OF EDUCATION OF DYER 
COUNTY, TENNESSEE, et al.,

Defendants-Appellees, 
Cross-Appellants.

Nos. 82-5154, 82-5158

UNITED STATES COURT OF APPEALS, 
SIXTH CIRCUIT.

Argued May 17, 1983. 
Decided Aug. 29, 1983.

Before CONTIE and KRUPANSKY,
Circuit Judges, and GUY, District Judge.*

CONTIE, Circuit Judge.

* The Honorable Ralph G. Guy, Jr., U.S. 
District Judge for the Eastern District of 
Michigan, sitting by designation.



The primary issue on this appeal is 

whether 42 U.S.C. § 1988 allows an award
of attorney's fees in 42 U.S.C. § 1981

litigation for services rendered in op­

tional state administrative proceedings. 

We hold that it does not.

I.
Leonard Webb, the plaintiff, was a 

tenured black teacher in the Dyer County 

schools. The Board suspended him in March, 
1974 pending the investigation of unspeci­

fied charges. It terminated the plaintiff 

two weeks later on grounds of unprofessional 
conduct and insubordination which had been 

brought to its attention by parents and 

school administrators. The Board did not, 
however, provide Webb with written charges 

and a hearing before taking this action.

— 2 cl ~



3a

The plaintiff subsequently demanded 

and received a hearing at which he attempted 

to show that the discharge was unjustified. 

Nearly four years later, the Board issued a 

final decision which upheld the discharge. 

Webb then filed suit under 42 U.S.C. §§ 

1981, 1983, 1985, 1986, 1988 and 2000d,

alleging that he had been terminated on 

account of his race.
The parties eventually settled the 

case. Pursuant to his § 1981 claim, Webb
received $15,400 in damages and a decree 

ordering the Board both to treat the plain­
tiff as having resigned and to place no 

disparaging remarks on his professional 
record. The matter of attorney's fees was 

reserved.
When the parties were unable to agree 

on this issue, the court awarded over



4a -

$9,700 in fees for services rendered by 
plaintiff's counsel before the district 

court but denied attorney's fees for 

efforts devoted to the state administrative 
hearing. The court held that § 1988 author­
izes attorney's fees for work performed in 

administrative proceedings only where those 
proceedings are a prerequisite to filing 

suit in federal court. Since Webb was not 
required to exhaust state administrative 

remedies before filing a § 1981 claim, his

attorney was not entitled to fees. The 

plaintiff appeals the partial denial of 

fees. The defendants cross-appeal the 
partial award of fees on the alternative 

grounds that Webb has not fully prevailed 

and that the amount awarded per hour was

excessive.



- S a ­

il.

In interpreting § 1988, this court is

"to use the broadest and most effective 

remedies available to achieve the goals of 
our civil rights laws." S.Rep. 94-1011, 

94th Cong., 2d Sess. 3 (1976), U.S.Code

Cong. & Admin. News 1976, pp. 5908, 5910.
Nevertheless, we are mindful that only 

Congress has the prerogative to establish 

exceptions to the general rule that prevail­
ing litigants must bear their own attorney's 

fees. Alyeska Pipeline Service Co. v.

Wilderness Society, 421 U.S. 240, 95 S.Ct.
1612, 44 L .Ed.2d 141 (1975). Hence, in

construing the attorney's fees statute 
liberally, this court may not go further 
than Congress intended. To discover that

intent, we look primarily to the statute



6a

itself and to the legislative history. 

Northcross v. Board of Education, 611 F .2d 
624, 632 (6th Cir. 1979), cert, denied, 447 

U.S. 911, 100 S.Ct. 2999, 64 L.Ed.2d 862 

(1980) .
In pertintent part, 42 U.S.C. § 1988 

provides:
In any action or proceeding to enforce 
a provision of §§ 1981, 1982, 1983, 
1985 and 1986 of this title, title IX 
of Public Law 92-318 or title VI of the 
Civil Rights Act of 1964, the court, in 
its discretion, may allow the prevail­
ing party, other than the United 
States, a reasonable attorney's fee as 
part of the costs.

Since this provision tracks the language of 
titles II and VII of the Civil Rights Act of 
1964, S.Rep. No. 94-1101, supra at 2; H.R. 
Rep. No. 94-1558, 94th Cong., 2d Sess. 5 

(1976), the plaintiff requests us to extend 
the Supreme Court's holding in New York 

Gaslight Club, Inc, v. Carey, 447 U.S. 54,

100 S.Ct. 2024, 64 L.Ed.2d 723 (1980).



7a
In Carey, the plaintiff invoked state

administrative and court remedies before

filing a title VII action. After the
defendant agreed prior to trial to comply

with the results of the state proceedings,

the case was dismissed on all issues except
attorney's fees. The court construed title

1/VII's fee provision as entitling plain­
tiff's counsel to payment for work done in 
administrative proceedings. First, the 
phrase "action or proceeding" was held to 
contemplate administrative proceedings. The 
court compared the attorney's fee provisions 

of title II and title VII and noted that

1/ 42 U.S.C. § 2000(e )-5(k ). The pro­
vision reads:

In any action or proceeding under this 
subchapter the court, in its discre­
tion, may allow the prevailing party, 
other than the Commission or the United 
States, a reasonable attorney's fee as 
part of the costs.



8a

title II, which is enforceable solely by 
court suits, only compensates services that 

are rendered during "actions." Conversely, 

title VII, which is enforceable through both 

administrative and judicial channels, com­

pensates work done in "actions or proceed­

ings." The court ruled that in order for 

the term "proceedings" not to be surplusage, 

it must refer to administrative actions. 

Id. at 61, 100 S.Ct. at 2029. Second, the 
court reasoned that since title VII plain­

tiffs are required to pursue administrative 

remedies, attorney's fees must be available 

to compensate counsel's efforts during such 
proceedings. Otherwise, plaintiffs would be 

deterred from asserting meritorious claims 

by the prospect of having to pay fees. Id. 

at 63, 100 S.Ct. at 2030.



9a

Despite the plaintiff's urgings to the

contrary we hold that the analysis in Carey
2/does not control the present case. Al­

though title VII provides for payment of 
attorney's fees in "actions or proceedings" 

whereas title II permits compensation only 

in "actions," Congress indicated that the 

wording of § 1 988 follows the language of

both title II and title VII. It is there­

fore difficult to infer that Congress 

intended the phrase "action or proceeding" 

in § 1988 to cover services rendered in

2/ At oral argument, the plaintiff argued 
that in light of Hensley v. Eckerhart,
D.S. ___ , 103 S.Ct. 1933, 1939, n.7, 76
L.Ed.2d 40 (1983), precedents arising under 
title VII and § 1988 are interchangeable. 
Hence, it is said that Carey must be applied 
to this case. Although Hensley did held 
that its principles applied to both title 
VII and § 1988 cases, the statement occurred 
in the context of discussing who is a "pre­
vailing party." In contrast, we consider 
the different question of whether a party 
who we hold to have prevailed (see Part III, 
infra) is entitled to attorney's fees for 
work done in optional administrative pro­
ceedings. Accordingly, this court is not 
Precluded from distinguishing C a jr e y .



10a

pursuing optional administrative remedies. 
Since Congress referred to two statutes, one 

of which allows attorney's fees for such 

work while the other does not, the phrase 

"action or proceeding" in § 1988 is ambigu­
ous .

Secondly, there is no congressional 

policy requiring plaintiffs who sue under 

the specific provisions listed in § 1988 

to exhaust a d m i n i s t r a t i v e  remedies. 
Latino Project, Inc, v . City of Camden, 
701 F.2d 262, 264 ( 3d Cir. 1983); Blow

v. Lascaris, 523 F.Supp. 913, 916 (N.D.N.Y. 

1981), affd. 668 F.2d 670 (2d Cir., cert.

denied, ___ U.S. ___, 103 S.Ct. 225, 74 L.
Ed.2d 179 (1982). See, e . g . , Patsy v.

Board of Regents, 457 U.S. 496, 102 S.Ct.
2557, 73 L .E d .2 d 172 (1982) (§ 1983);

Cannon v. University of Chicago, 441 U.S.



11a

677 706-08 n. 41, 99 S.Ct. 1946, 1962-63
n. 41, 60 L .Ed.2d 560 (1979) (title IX).
This court has held, for instance, that 
plaintiffs bringing employment discrimina­

tion claims under § 1981 need not exhaust

the administrative remedies which are 

available under title VII. Long v. Ford 

Motor Company , 496 F.2d 500, 503 (6th

Cir. 1974). Since Webb could have filed 
suit under § 1981 without pursuing admin­

istrative remedies, he would not have 

been deterred from asserting his federal 

rights had he known that fees would be 
unavailable to compensate his attorney 

for work done in the optional proceed­
ings. Thus, the problem faced by the 

plaintiff in Carey is not present here.



1 2a

The proper approach to the question 
at hand has been taken to the Second, Third, 
Fifth and Eleventh Circuits. Three of those 

circuits have held that § 1988 does not pro­

vide an independent cause of action for 

attorney's fees earned in optional adminis­

trative proceedings. Latino Project, supra; 
Estes v. Tuscaloosa County, 696 F.2d 898, 

901 (11th Cir. 1983); Lascaris, supra. The 

Fifth Circuit has held that where "state 
proceedings do not form an integral part of 
the federal remedy," attorney's fees are 
unavailable under § 1988 for word done in 

such proceedings. Redd v. Lambert, 6 74 

F .2d 1032, 1037 (5th Cir. 1982). Since the 

plaintiff in this case was not required to 

pursue administrative relief, those pro­
ceedings clearly were not an integral part 

of his § 1981 remedy.



13a

Plaintiff's counsel attempts to dis­
tinguish the decisions from the Second, Third 

and Eleventh Circuits on the ground that the 

plaintiffs in those cases prevailed at the 
administrative level and sued in federal 

court only for attorney's fees, whereas Webb 

lost during administrative proceedings and 

was forced to seek substantive relief as 
well. This argument is faulty because it 
makes the availability of attorney's fees 

dependent upon the fortuitous circumstance 
of whether the ultimately prevailing plain­

tiff won or lost at the administrative 

level. Since the weight of authority holds 
that plaintiffs who prevail during optional 
administrative proceedings are not entitled 

to attorney's fees under § 1988, we hold 

that plaintiffs who lose during such 

proceedings, but who eventually prevail, are 
not entitled to fees either.



14a

The Supreme Court's opinion in Carey 
supports this conclusion. The court there 

held that the availability of compensation 

for administrative work "should not depend 

upon whether the complainant ultimately 

finds it necessary to sue in federal court 
to obtain relief other than attorney's 

fees." 447 U.S. at 66, 100 S.Ct. at

2032. A title VII plaintiff may therefore 
sue for attorney's fees in federal court 

regardless of whether he won or lost at 

the administrative level. Although the 
final result differs in § 1988 cases, the 

underlying principle cited above neverthe­
less applies.

We acknowledge the existence of case 
law supporting Webb's position. In Brown

v. Bathke, 588 F.2d 634, 638 (8th Cir.
1/19/8), a § 1983 case, the court held,

3/ Brown was criticized in Hensley, 103 
S. Ct. at 1940-41 n. 11, but not on this 
point.



15a

without analysis and in reliance upon three 

title VII cases, that attorney's fees for 
services rendered in administrative proceed­

ings are available at the discretion of the 

trial judge. As has been indicated, however, 
title VII cases in which plaintiffs are re­

quired to exhaust administrative remedies 
are not persuasive concerning the issue at 

hand.
The Seventh Circuit also would grant 

attorney's fees to Webb. See C i e chon 
v. City of Chicago, 686 F.2d 511, 524-25

(7th Cir. 1982); cjf. Chrapliwy v. Uniroyal, 

Inc. , 670 F . 2d 760 (7th Cir. 1982)(title
VII case involving optional administrative 

proceedings). The Ciechon decision's 

interpretation of the phrase "action or 
proceeding" and its application of the 

policies underlying Carey have been rejected 

for reasons already stated. We therefore
decline to follow the seventh circuit's



16a

rule.
Furthermore, we infer from the legis­

lative history of § 1988 that Congress did 

not intend attorney's fee awards for optional 

administrative work. Although the legisla­
tive history does not directly address this 

issue, the Senate Report's statement of 

purpose contains the following language:
The purpose and effect of S. 2278 are 
simple -- it is designed to allow 
courts to provide the familiar remedy 
of reasonable counsel fees to prevail­
ing parties in suits to enforce the 
civil rights acts which Congress has 
passed since 1866....
In many cases arising under our civil 
rights laws, the citizen who must sue 
to enforce the law has little or no 
money with which to hire a lawyer. If 
private citizens are to be able to 
assert their civil rights, and if those 
who violate the Nation's fundamental

A/ Bartholomew v. Watson, 665 F . 2d 910 
(9th Cir. 1982), does not support Webb's 
position. The plaintiff in Bartholonew was 
required to exhaust state remedies pursuant 
to the Pullman abstention doctrine. The 
decision therefore is more akin to Carey 
than to the present case.



- 17a

laws are not to proceed with impunity, 
then citizens must have the opportunity 
to recover what it costs them to 
vindicate these rights in court . 
[Emphasis supplied.]

S.Rep. No. 94-1011, supra, at 2, U.S.C.Code 
Cong. & Admin. News 1976, pp. 5908, 5909-
5910. The notion that attorney's fees are 

available only for services rendered in court 

permeates the entire document. For instance, 

the Report's final substantive comment is 

that:
Enforcement of laws depends on govern­
mental action and, in some cases, on 
private action through the courts. If 
the cost of private enforcement actions 
becomes too great, there will be no 
private enforcement. If our civil 
rights laws are not to become mere 
hollow pronouncements which the average 
citizen cannot enforce, we must main­
tain the traditionally effective remedy 
of fee shifting in the se cases. 
[Emphasis supplied.]

Id. at 6, U.S. Code Cong. & Admin. News

1976, p. 5913.



Language in the house Report is consis­

tent with this interpretation:
In many instances where [the civil 
rights] laws are violated, it is 
necessary for the citizen to initiate 
court action to correct the illegality 
.... Because a vast majority of the 
victims of civil rights violations 
cannot afford legal counsel, they are 
unable to present their cases to the 
courts. [Emphasis supplied.]

H.R.Rep. No. 94-1558, supra, at 1. The 

Report then states that § 1988 is designed 

"to give [plaintiffs] effective access to 

the judicial process." 1̂ cl. Finally,

other courts which have considered the 

legislative history agree that Congress 
did not intend compensation for services 

rendered in optional administrative proceed­
ings. See Latino Project, 701 F.2d at 264; 

Lascar is, 668 F.2d at 671.
The p l a i n t i f f  r a i s e s  two c o u n t e r - a r g u ­

m ents .  F i r s t ,  th e  House Report  c i t e s  Parker



v. Matthews, 411 F. Supp. 1059 (D.D.C.

1976), affd. sub nom. Parker v. Califano, 

561 F . 2d 320 (D.C.Cir. 1977 ), for the 

proposition that a plaintiff who obtains 

relief through a consent decree rather than 

through a trial on the merits is entitled to 

attorney's fees. H.R.Rep. No. 94-1558, 
supra, at 7. Although this holding is unex­

ceptional, some of the fees awarded in 

Parker were for services rendered in adminis­
trative proceedings. Parker is distinguish­

able, however, on the ground that it is a 

title VII case. Moreover, even if the refer­
ence to Parker supports Webb's position, 
that isolated instance does not outweigh the 

numerous indications throughout the legisla­

tive history that Congress intended only 

work done in court proceedings to be compen­

sable under § 1988.



2 0 a

S econd,  Webb p o i n t s  out  t h a t  in  c a lc u la t ­

i n g  a t t o r n e y ' s  f e e s ,  t h e  c o u r t s  a r e  to 

i n c l u d e  " a l l  t ime r e a s o n a b l y  expended on a 

m a t t e r "  and are  t o  use the  same s ta n d a r d s  as 

a r e  used  in  c o m p le x  l i t i g a t i o n  su c h  as 

a n t i t r u s t  s o  t h a t  th e  v a l u e  o f  c o u n s e l ' s  

s e r v i c e s  w i l l  not  be reduced s im p ly  because  

" t h e  r i g h t s  i n v o lv e d  may be nonpecuniary  in 

n a t u r e . "  S .R e p .  No. 9 4 - 1 0 1 1 ,  s upra ,  a t  6,  

U .S .  Code Cong. & Admin. News 1 9 7 6 ,  p .  5913 .  

The p l a i n t i f f  argu es  t h a t  the  time devoted  

t o  th e  o p t i o n a l  a d m i n i s t r a t i v e  p r o c e s s  in 

t h i s  c a s e  was t i m e  t h a t  was " r e a s o n a b l y  

exp en d ed . "

The e r r o r  in  t h i s  argument,  as we have 

p r e v i o u s l y  i n d i c a t e d ,  i s  t h a t  t h e r e  i s  no 

c o n g r e s s i o n a l  p o l i c y  f a v o r i n g  e x h a u s t i o n  of  

a d m i n i s t r a t i v e  r em edies  b e f o r e  b r in g i n g  s u i t  

under the s t a t u t e s  l i s t e d  in  S 1 9 8 8 .  More-



21a

over, the Supreme Court has said that there 
is disagreement over whether judicial or 

administrative procedures offer "the swift­

est, least costly and most reliable remedy" 

in § 1983 litigation. Patsy, 102 S.Ct. at 

2566 & n. 15. There is no reason not to
apply this comment to § 1981 actions. We 

therefore conclude that time spent during 

optional state administrative proceedings 
is not time "reasonably expended" for 

purposes of § 1988.
Second, the directive to use the same 

standards as are used in other types of com­
plex litigation in placing a value upon 

counsel's services only becomes operative if 
those services fall within the purview of § 
1988. Since we have held that the adminis­

trative work done by Webb's counsel is not 

compensable, the cited instruction is irrel­

evant .



22a

III.
On cross-appeal, the defendants argue 

that the award of attorney's fees for ser­

vices rendered before the district court

must be reduced either because Webb did not
. 1/fully prevail on his § 1981 complaint 

or because the amount awarded per hour was 

excessive.
Although the plaintiff's complaint 

originally was filed as a class action, 
no class was ever certified and Webo ob­

tained only individual relief pursuant to 
the settlement agreement. The defendants 

admit that Webb is a prevailing party who is 

entitled to attorney's fees. They neverthe­

less argue that because of the limited re-

57 The defendants have raised this issue 
in a supplemental brief filed after oral 
argument. The court has allowed the brief 
to be filed because defendants' argument 
implicates the Supreme Court's decision 
i n tl e_ ri s 1 ej£ , which was decided one day 
before the oral argument in the present 
case.



23a

lief obtained, the plaintiff's attorney's 

fee must be reduced for it to be "reason­

able" under Hensley v. Eckerhart, ___ U.S.
103 S.Ct. 1933, 1976 L.Ed.2d 40

(1983). They first contend that since the 

plaintiff's individual claims are "unre­

lated" to his class action claims, ixi. at 

1940, his attorney is not entitled to 

compensation for time spent drafting the 

class allegations in the complaint. Having 
reviewed the complaint, however, we hold 

that the individual and class allegations 
are sufficiently related such that no 

reduction in fees is merited on this 

ground.
Second, the defendants argue that 

however significant Webb's individual 
relief, may be, it "is limited in compari­

son to the scope of the litigation as a 

whole," bd. at 1943, because the complaint 
asserted a class action. This case did not



24a

proceed to trial, however; nor is there any 
demonstration that significant pre-trial 

preparation was devoted to the class 
allegations. Under these circumstances, 
the defendants' argument is reducible to 

the notion that whenever a plaintiff 

settles for individual relief and the 

complaint happens to include class allega­

tions, the plaintiff's attorney's fee must 

be reduced. We decline to adopt such a 
rigid rule.

Third, the defendants contend that 

the plaintiff's attorney inadequately 
documented the number of hours devoted to 

the district court proceedings. We have 

reviewed the affidavit of plaintiff's 
attorney and conclude that this argument is 
without merit. Finally, the defendants 
assert that the amount awarded to plain­

tiff's attorney was excessive. We hold

that the district court did not abuse its



25a

broad discretion in making this award. Id. 

at 1941. The judgment of the district 

court is AFFIRMED.



26a

ORDER DENYING REHEARING, 
Nov. 16, 1983

No. 82-5154 &
82-5158

UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

LEONARD WEBB, )
)

Plaintiff-Appellant )
Cross-Appellee, )

)
vs. )

)
COUNTY BOARD OF EDUCATION )
OF DYER COUNTY, TENNESSEE, )
et al. , )

)
Defendants-Appellees )
Cross-Appellants. )

________)

ORDER
FILED
Nov. 16, 1983

Before: CONTIE and KRUPANSKY, Circuit
Judges; and GUY, District Judge.

A majority of the court having not 

voted in favor of an ert banc rehearing,

the petition for rehearing has been refer­

red to the hearing panel for disposition.



27a

Upon consideration, it is ORDERED

that the petition for rehearing be and

hereby is DENIED.
ENTERED BY ORDER OF THE COURT

s / ______________ ___________
Clerk



28a

DECISION OF DISTRICT COURT, 
Feb. 10, 1982

IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TENNESSEE 

WESTERN DIVISION

LEONARD WEBB, §
s

Plaintiff, §
§

VS. §
$ NO. C-79-2574 

COUNTY BOARD OF EDUCATION §
OF DYER COUNTY, TENNESSEE, §
ET AL., §

§
Defendants. §

___________________§

FINDINGS OF FACT AND CONCLUSIONS OF LAW 
ORDER ALLOWING ATTORNEY'S FEES AND COSTS

Plaintiff seeks payment of profes­
sional fees for legal services rendered to 

him by his counsel in administrative 
proceedings before the County Board of 
Education of Dyer County, Tennessee, and



29a

for services rendered to him in the Federal 
District Court. Counsel for plaintiff 

claims that he is entitled to fees in the 
sum of $21,165.00 plus expenses of $561.61. 

Defendants argue that the fees requested by 

counsel are excessive and unreasonable. 

Defendants state that a reasonable fee for 
plaintiff is $5,000. Faced with such a 

vast difference in the fee suggested by 
distinguished counsel for both plaintiff 

and the defendants, the Court read all of 

the pleadings, supporting affidavits and 

briefs. In addition, the Court held an 
extensive evidentiary hearing.

This action was initially filed in 
this court by a former tenured school 
teacher employed by the Dyer County Board 
of Education. He alleged that he was 

unlawfully discharged because of his race. 
The parties resolved the case by consent. 

A consent order was filed on October 13,



30a

1981, awarding the plaintiff $15,400.00 and 

equitable relief. Unable to resolve the 
matter relating to legal fees, plaintiff 
filed a petition for the awarding of legal 

fees and expenses by the Court.
Mr. Avon N. Williams of Nashville, 

Tennessee, plaintiff's counsel, claims 

that he is entitled to legal fees for 

services rendered to his client in adminis­

trative proceedings before the Board of 

Education of Dyer County, Tennessee, and 

for services rendered as counsel in the 
United States District Court. He claims, 

by way of affidavit, compensation for 141.1 

hours. Mr. Williams asserts that the fair 
market value for his hourly services is 

$120.00 per hour across the board. He also 

claims entitlement to:
An increment of 25% added in light 
of the peculiar difficulties involved 
in this particular kind of case 
and the unusual nature of the hours 
involved in the Board proceedings. 
(Williams affidavit, p. 10)



31a

Apparently Board meetings were held at 

night and Mr. Williams traveled to Dyer 

County, Tennessee, from Nashville, Tennessee, 

to attend those Board meetings.

The defendants do not deny that plain­

tiff's counsel is entitled to reasonable 
fees and expenses. In fact, defendants 

assert that a reasonable fee is $5,000 . 
Defendants base their primary challenge to 

an allowance of fees for the 82.8 hours for 

services rendered by counsel in the adminis­

trative proceedings before the Dyer County 
Board of Education. Defendants deny that 

plaintiff's counsel is entitled to include 
compensation for those hours in the district 

court proceedings:
Defendants contend that while § 1988 
authorizes the recovery of attorney's 
fees in an action brought to enforce 
rights and remedies secured by 42 
U.S.C. § 1981, it does not authorize 
the award of attorney's fees where, as



32a

here, a plaintiff chooses to pursue 
state administrative remedies (herein 
hearings before the Dyer County Board 
of Education seeking reinstatement) 
where state administrative remedies are 
not required as a condition precedent 
to bringing the federal civil rights 
action. ("Response and Memorandum of 
Points and Authorities in Opposition to 
Plaintiff's Application for Award of 
Attorney's Fes.", p. 2)

In an action brought under 42 U.S.C. § 

1981, the Court in its discretion may allow 
the prevailing party, pursuant to 42 U.S.C.

§ 1988, to recover a reasonable attorney's

fee. Section 1988 of 42 U.S.C. provides, in 
relevant part:

In any action or proceeding to enforce 
a provision of sections 1977, 1978,1979, 
1980 and 1981 of the Revised Statutes 
[42 U.S.C. §§ 1981-1983, 1986], title
IX of Public Law 92-318 [20 U.S.C. §§
1681 et seq.], or in any civil action 
or proceeding, by or on behalf of the 
United States of America, to enforce, 
or charging a violation of, a provision 
of the United States Internal Revenue 
Code, or Title VI of the Civil Rights 
Act of 1964, the court, in its discre­
tion, may allow the prevailing party, 
other than the United States, a reason­
able attorney's fee as part of the 
costs.



33a

The question for determination is 

whether the plaintiff is entitled to an 

award of counsel fees for those hours 

pertaining to the administrative proceedings 
before the Dyer County Board of Education 

where that proceeding was not a prerequisite 

to the filing of an action under 42 U.S.C. § 
1981.

The plaintiff argues that New York 
Gaslight Club, Inc, v. Carey, 447 U.S. 54 
(1980) and Maher v. Gagne, 448 U.S. 122, 100 
S.Ct. 2570 (1980), support the awarding of

attorney fees for services rendered in state 
administrative proceedings. In Carey, 

su^ra, the Court was asked to decide 

whether a federal court had authority to 

grant the prevailing party attorney's fees 

under 706(k) of the 1964 Civil Rights Act 

(Title VII), for services performed in a 
state administrative proceeding that Title 

VII requires the claimant to invoke.



34a

The plaintiff in Carey alleged that 
she had been refused employment because of 

her race. Upon receiving her complaint, the 

EEOC forwarded that complaint to the proper 
state agency for inquiry as required by § 

706(c) of Title VII. While the state agency 
was considering the matter, the plaintiff 
received her right to sue letter from the 

EEOC and filed a Title VII action in Federal 

District Court. Subsequently, the state 

agency determined that the plaintiff had 

been deprived employment because of her race 

and ordered relief. Thereafter, the defend­
ant agreed to comply with the state order, 

and both parties agreed to dismiss the Title 

VII action filed in District Court except 
for plaintiff's request for attorney's
fees.



35a

The Supreme Court ruled that § 706(k) 

of Title VII authorizes an award of attor­

ney's fee for work performed in state 
administrative proceeding. The Court stated 

that Title VII1s "scheme of interrelated 
and complimentary state and federal enforce­

ment" procedures mandated initial resort to 

state and local remedies as a prerequisite 

to the filing of a Title VII action in 

District Court. The Supreme Court reasoned 

that state administrative proceedings were 

within Congress' contemplation as "proceed­

ings" under 706(k ) for which the federal 

court had authority to award attorney's 

fees. In the case before the Court the suit 
was brought and settled pursuant to § 1981. 

Thus, Carey is inapposite to the present

case.



36a

In Maher v. Gagne, supra, the question 
before the Court was whether fees may 
be assessed against state officials after a 

case has been settled by the entry of a 

consent decree without any determination 

that the plaintiff's constitutional rights 

have been violated. 448 U.S. at 124. The 

Court decided that where the consent decree 

gave the plaintiff substantially the relief 

requested, the plaintiff is a prevailing 

party within the meaning of 42 U.S.C. § 1988 

and entitled to attorney's fees. According­
ly, the Maher decision is of no significance 

to the case before the Court. In Maher 
there was no administrative proceeding or 
any fee request based upon an administrative 

hearing. The Court decided in Maher that 
fees were authorized for the Social Security 

Act claim because it was a type of §1983 

claim recognized under § 1988. The Court



37a

was merely following an earlier decision 

holding that § 1988 applied to all §1983 

claims including those brought alleg- 

ing violation of the Social Security Act. 

Maher does not support plaintiff's conten­
tion that fees may be awarded on the basis 

of a non-constitutional claim in all 

circumstances where the court does not 

decide the constitutional claim.
I n Blow v ._Las car is , ___ F.Supp.

___, 50 U.S.L.W. 2178 (Oct. 29 1981), the
district court was asked to decide whether 
an individual, who prevailed in state 
administrative proceed ing s to enforce a 
federal statutory right protected under 42 
U.S.C. §1983, may thereafter bring an 

independent action in federal court under 

the Civil Rights Attorney's Fees Awards Act 
of 1976. Ic). A mother had applied for a 

state grant of medical assistance to pay



38a

emergency medical expenses incurred by her

son. Initially, the agency denied asistance
and the mother requested an administrative

hearing. After the hearing,the state

reversed its determination and granted

assistance. The mother then filed an

independent action in federal court seeking

attorney's fees. The court denied the
request for fees stating:

This court, then, must be circumspect 
in interpreting § 1988 so as not
to invade the province of Congress by 
expanding the statute beyond its 
intended scope. Moreover, the legisla­
tive history of § 1988 fails to support 
the mother's construction of the 
statute. It is devoid of any discus- 
ion of state or federal administrative 
proceedings. This court concludes 
that no cause of action exists under § 
1988 for an attorney's fees award to 
prevailing parties in state administra­
tive proceedings where recourse to 
federal court on the merits of the 
civil rights claim is not necessary or 
available. Id.



39a

In another recent decision, Swain_v.

Secretary of Navy, ___ F.Supp. ______ , 5 0

U.S.L.W. 2439 (Feb. 2, 1982), the District

Court refused to grant an award of attor­

ney’s fees to the prevailing plaintiff for 
hours expended in administrative proceed­
ings. The Court recognized that under the 
Age Discrimination in Employment Act (ADEA), 
resort to the administrative process is 

optional, and is not a prerequisite to 

filing suit in Federal District Court. 

Consequently,under such circumstances the 

prevailing party is not entitled to attor­

ney's fees:
[T]he ADEA does not include a provi­
sion requiring exhaustion of adminis­
trative remedies. Because resort to 
administrative procedures is merely 
an alternative option to the commence­
ment of a judicial action for an age 
discrimination claimant, that claim­
ant is not entitled to the expenses 
of counsel at the administrative 
level. Id.



40a

The Court, based upon the foregoing 

analysis of the applicable law, rules 
plaintiff's counsel is not entitled to fees 

for the 82.8 hours pertaining to the admin­

istrative proceedings before the Dyer County 
Board of Education.

Although the defendants except to 

other hours claimed by plaintiff's counsel, 
the Court finds those exceptions to be 

substantially without merit.

Therefore, in compliance with North- 
cross v. Board of Education of the Memphis 
City Schools, 611 F.2d 624 (6th Cir. 1979), 
cert ♦ denied, 447 U.S. 911 (1980), the 

Court must determine the number of hours of 
legal services performed by plaintiff's 

counsel, the normal hourly billing rate 
applicable, and whether the upward adjust­

ment should be made and, if so, the amount

thereof.



41a -

Plaintiff's counsel claims entitlement 

to compensation for 141.1 hours of legal 
services. The defendants have determined by 

their calculations that 82.5 hours claimed 
by plaintiff's counsel concerned matters 

pertaining to the administrative hearing. 

The Court finds no reason to disagree with 

that determination. Accordingly,, counsel 

for plaintiff is entitled to compensation 

for the remaining 58.3 hours. Plaintiff's 
counsel is an able and highly respected 
attorney in the State of Tennessee and the 

United States. The Court finds, upon the 
entire record in this case, the fair market 

value of counsel's services is $125.00 per 

hour across the board or a fee of $7,287.50. 
The Court further finds, based upon the 

entire record in this case, that a contin­

gency factor of 25% is reasonable. The 
charges by the Dyer County school officials



42a

against the plaintiff, a tenured teacher, 

were serious charges. Initially, the school 

board fired plaintiff. His counsel timely 

requested a hearing before the school board 
as required by Tennessee law. That hearing 

was granted. The school board apparently 

held the case under advisement for about 
four years and then reaffirmed its initial 
decision to terminate plaintiff. There 

certainly was a strong element of contin­

gency in this case. The adjustment factor 

of 25% addes an additional $1,821.88 making 

plaintiff's counsel fees $9,109.38. The 
Court also finds the $561.61 itemization of 

expenses presented by plaintiff to be 
reasonable.

Plaintiff's counsel is also entitled 

to compensation for time related to litiga­
ting the fee issues before this Court. The



43a

Court will allow plaintiff's counsel five 
(5) hours across the board or $625.00 for 
this time. In addition, plaintiff claims 

the costs of a plane trip for counsel from 

Nashville to Memphis to Nashville to be 
$146.00. Cost of rental car was $32.00. 

The Court finds these expenses to be reason­
able and allowable.

It is therefore by the Court 

ORDERED that plaintiff be and is hereby 
awarded counsel feels in the total sum of 

$9,734.38 plus expenses in the amount of 

$739.61.
ENTERED this 10th day of February,

1 982.

s / __________ ______________ _
ODELL HORTON JUDGE 

UNTIED STATES DISTRICT COURT



H a m il t o n  G r a p h ic s , I n c .