North Carolina Dept. of Transportation v. Crest Street Community Council Brief Amicus Curiae

    No. 85-707

jjtt il|i' ^upm ur (ihuui nf Jhik Muilrft ^luh'u
October Term, 1985

North Carolina Department of Transportation,
ET AL., PETITIONERS

V.

Chest Street Communi ty Council, Inc., et al.

‘■i ■ ■■ \j

ON WRIT OF' CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE 
SUPPORTING PETITIONERS

/
axXL___yLc— =4—csi

V c ' IkJ

Cl IA III. US FRIED 
Solicitor General

W m . Bradford Reynolds 
Assistant, Attorney General

Carolyn B. K uul
Deputy Solicitor General

Richard J. Lazarus
Assistant to the Solicitor General

Brian K. Landsherg 
ilARIEjiUMESZ MCELDERRY 
^Attorneys f\l\

*  .............  W'u '/ Depart >\U’JiLof Justice
\VMkinuton,D.C. 20530 ' '

j 033-2217
_ _______

5K/



QUESTION PRESENTED

Whether local community organizations are entitled 
to recover their attorney’s fees under 42 U.S.C. 1988, 
based on their having brought an alleged violation of 
Title VI of the Civil Rights of 1964, 42 U.S.C. 2000d 
et seq., to the attention of the appropriate federal 
agency, and their having participated in informal 
negotiations sponsored by the federal agency that re­
sulted in a favorable settlement agreement.

(i)



Page
TABLE OF CONTENTS

Interest of the United States............................................... 1

Statement..............................   2

Summary of argument........................................................... 8

Argument:

Section 1988 does not authorize an award of attor­
ney’s fees to complainants in Title VI administra­
tive proceedings when their role is confined to noti­
fication of the appropriate federal agency of a viola­
tion of Title VI of the Civil Rights Act of 1964 and 
to participation in informal agency-sponsored nego­
tiations that result in a favorable settlement agree­
ment ....................................... - ............................................ 11

A. Title VI administrative complainants are not 
“part[ies]” to a “proceeding” to enforce Title 
VI within the meaning of Section 1988 ................  13

B. Application of Section 1988 to Title VI adminis­
trative proceedings is inconsistent with the ra­
tionale of the decisions of this Court implying a
private right of action to enforce Title VI and 
threatens to disrupt agency enforcement efforts.. 24

Conclusion ................................................................................ 30

TABLE OF AUTHORITIES
Cases:

Adams v. Bell, 711 F.2d 161, cert, denied, 465 U.S.
1021 ..............................  24

Alexander V. Choate, No. 83-727 (Jan. 9, 1985).....  1
Arriola V. Harville, 781 F.2d 506........... 23
Cannon v. University of Chicago, 441 U.S. 677....2,17, 21,

24, 29
Chmvdhury V. Reading Hospital & Medical Center,
677 F.2d 317 ...............................................................  21

(III)



• Cases—Continued:
IV

Page

2Consolidated Rail Cm p. V. Darrone, 465 U.S. 624... 
Guardians A ss’n V. Civil Service Comm’n, 463 U.S.

582 ......................................................................................2, 24, 25
Hensley V. Eckerhart, 461 U.S. 424 ...........  29
New York Gaslight Club, Inc. V. Carey, 447 U.S.

54 ........................................................................... 6 ,7 ,1 9 ,2 0 ,2 6
Pennhurst State School & Hospital V. Halderman,

451 U.S. 1 ........................................ -............................... 26
Regents of the University of California V. Bakke,

438 U.S. 265 ....................................................................  24, 25
Webb V. County Bd. of Educ., No. 83-1360 (Apr.

17, 1 9 8 5 )..................................................... 7, 10, 19, 20,28, 29

Statutes, regulations and rules:

Administrative Procedure Act, 5 U.S.C. 551(3).... 22
Civil Rights Act of 1964:

42 U.S.C. 2000d et seq.......................................1, 2, 3, 8, 11
42 U.S.C. 2000d..............................................   8
42 U.S.C. 2000d-l......................................................9 ,1 2 ,1 4
42 U.S.C. 2 0 0 0 e -5 (f).................................................  20,21
42 U.S.C. 2000e-5 (f) ( 1 ) ........................................... 26
42 U.S.C. 2000e-5(g).................................................. 21
42 U.S.C. 2000e-5 (k ) ...............................................6 ,19 , 26

Education Amendments of 1972, 20 U.S.C. 1681
et seq....................................................................................  2

Equal Access to Justice Act:
5 U.S.C. 504 .................................................................. 9, 22
28 U.S.C. 2412(d ).......................................................  9
28 U.S.C. 2412(d) (e ) ................................................  22

Federal-Aid Highway Act, 23 U.S.C. 109(h) ........... 3
National Environmental Policy Act, 42 U.S.C. 4331

et seq.................................................................................... 3
Rehabilitation Act of 1973, 29 U.S.C. 701 et seq. :

29 U.S.C. (Supp. V 1975) 7 9 4 ...............................  2
29 U.S.C. 794a............................................................  2

Voting Rights Act of 1965, 42 U.S.C. 1973c.............  23
42 U.S.C. 1973J...................................................................  23
28 U.S.C. 1 3 2 .......................................................................  19
28 U.S.C. 1 4 3 ....................................................................... 19
28 U.S.C. 1 5 1 .......................................................................  19

V

Regulations and rules— Continued: Page

28 U.S.C. 1251........................................................................ 19
28 U.S.C. 1358 .......................................................................  19
28 U.S.C. 1692.......................................................................  19
28 U.S.C. 1875(d) ( 2 ) .........................................................  20
28 U.S.C. 1915.......................................................................  19
28 U.S.C. 1921 .......................................................................  19
28 U.S.C. 2462 ......  19
42 U.S.C. 1983........................................................................ 7 ,19
42 U.S.C. 1988 ............     passim
42 U.S.C. 3601 et seq............................................................  3
7 C.F.R. Pt. 1 5 .......................................................................  15

Section 1 5 .8 (c ) ............................................................  16
Section 15.66.................................................................  16

13 C.F.R. Pt. 1 1 2 ..................................................................  15
15 C.F.R. Pt. 8 .......................................................................  15

Section 8.11 (a) ............................................................ 16
22 C.F.R. Pt. 1 4 1 ................................................................... 15
24 C.F.R.:

Pt. 1 .................................................................................  15
Pt. 2 :

Section 2 .2 3 .........................................................  16
28 C.F.R. Pt. 42 Subpt. C .................................................  15
29 C.F.R. Pt. 31.....................................................................  15
32 C.F.R. Pt. 3 0 0 .................................................................  15
34 C.F.R.:

Pt. 1 00 ............................................................................. 15
Section 100.7(d) ................................................ 16

Pt. 101:
Section 101.23 .....................................................  16

38 C.F.R. Pt. 1 8 ....................................................................  15
Section 18b.l 8 .......   16

41 C.F.R. Pt. 101-6.2.......................................................... 15
43 C.F.R. Pt. 1 7 ...................................................................  15
45 C.F.R.:

Pt. 8 0 ............................................................................... 15
Section 80.7(d) ..................................................  16



VI

Regulations and rules— Continued: Page

Pt. 81:
Section 81 .23 .......................................................  16

Pt. 1 203 ........................................................................... 15
49 C.F.R. Pt. 21 ..................................................................  15

Section 21.5(b) (3) .................................................... ' 4
Section 2 1 .1 1 ................................................................  16
Section 21.11 (b) .........................................................  15,17
Section 21.11 ( c ) .......................................................... 4 ,15
Section 21.11 (d) (1) ..................................................  4
Section 21.11 (d) (2 ) ...................................................  16
Section 2 1 .1 3 .............................................    16
Section 21 .15 ................................................................. 16
Section 21.15 ( a ) .......................................................... 16
Section 21.17 ...........................    16

Exec. Order No. 12,250, 3 C.F.R. 298 (1 9 8 0 )............. 2, 15
Fed. R. Civ. P. 17-25 ...........................................................  23

Miscellaneous:
122 Cong. Rec. (1976) :

p. 3 5116 ..........................................................................  18
p. 35124 ..........................................................................  18

29 Fed. Reg. 16273-16309 (1964)....................................  15
H.R. Rep. 94-1558, 94th Cong., 2d Sess. (1976).......  20, 28
S. Rep. 94-1011, 94th Cong., 2d Sess. (1976)............ 20

Hit lljr §ujtrnttP (Smtrt nf %  luitrft §latrs
October T erm, 1985

No. 85-767
North Carolina Department of Transportation,

ET AL., PETITIONERS

v.

Crest Street Com m unity  Council, Inc., et al .

ON WRIT OF CERTIORARI TO THE UNITED STATES  
COURT OF APPEALS FOR THE FOURTH CIRCUIT

BRIEF FOR THE U N ITED  STATES AS AMICUS CURIAE  
SUPPORTING PETITIONERS

IN TER EST OF TH E U NITED  STATES

Federal agencies have the primary enforcement re­
sponsibility under Title VI of the Civil Rights Act of 
1964, 42 U.S.C. 2000d et seq., for ensuring that any 
program or activity receiving federal financial as­
sistance does not unlawfully discriminate on the basis 
of race, color, or national origin. Accordingly, fed­
eral agencies have promulgated implementing regula­
tions setting forth Title VI investigation and enforce­
ment procedures. As this Court has frequently noted, 
the Department of Justice played a central role both 
in the drafting of Title VI and in the development 
of the various agencies’ implementing regulations. 
See, e.g., Alexander v. Choate, No. 83-727 (Jan. 9,

(1)



2

1985), slip op. 7 n .l l ;  Guardians Ass’n v. Civil Serv­
ice Comm’n, 463 U.S. 582, 592 (1983) (opinion of 
White, J . ) ; see also Exec. Order No. 12,250, 3 C.F.R. 
298 (1980) (Department of Justice responsible for 
approving and coordinating federal agency Title VI 
programs). The issue in this case, whether attorney’s 
fees are available under 42 U.S.C. 1988 for time 
spent participating in agency enforcement proceed­
ings, requires consideration of the nature of Title VI 
administrative proceedings and the relationship of the 
federal agency enforcement process to private Title VI 
enforcement. If attorney’s fees are made available, 
the enforcement scheme Congress created will be al­
tered in a manner that threatens to interfere with 
federal agencies’ administrative enforcement respon­
sibilities.1

STATEM ENT

This case concerns whether a person who complains 
to a federal agency that a recipient of federal funds 
is engaging in discrimination in violation of Title VI 
of the Civil Rights Act of 1964, 42 U.S.C. 2000d 
et seq., may recover attorney’s fees under 42 U.S.C. 
1988 for time spent in informal negotiations spon­
sored by the federal government to resolve those al­
legations. Respondents are several local civic and

1 The federal interest in this case extends to federal agency 
enforcement of both Title IX of the Education Amendments 
of 1972, 20 U.S.C. 1G81 et seq., and Section 504 of the Re­
habilitation Act of 1973, 29 U.S.C. (Supp. V 1975) 794, both 
of which were generally patterned after Title VI (see Cannon 
V. University of Chicago, 441 U.S. 677, 684-685 (1979) (Tit. 
IX ) ; Consolidated Rail Corp. V. Darrone, 465 U.S. 624, 626, 
632-633 n.13 (1984) (§ 5 04 )). The attorney’s fee provision 
of 42 U.S.C. 1988 applies to Title IX  and the attorney’s fee 
provision of the Rehabilitation Act, 29 U.S.C. 794a, uses 
language similar to that contained in Section 1988.

3

church organizations representing the interests of 
residents of a stable, cohesive, predominately black, 
neighborhood (Crest Street) in Durham, North Caro­
lina (Pet. App. 2). They complained to the United 
States Department of Transportation (USDOT) that 
petitioners, two state transportation agencies and the 
state official in charge of both agencies, had violated 
Title VI. The merits of the dispute were entirely 
resolved through USDOT’s informal conciliation ef­
forts (id. at 22-25). Respondents then filed this law­
suit for the sole purpose of recovering attorney’s fees 
for time spent participating in the agency’s negotia­
tion process. The district court dismissed the com­
plaint for failure to state a claim, but the Fourth 
Circuit reversed (id. at 1-21, 22-40).

1. In September 1978, two of the respondents sub­
mitted a “ complaint” with USDOT alleging, inter 
alia, that petitioners’ proposed highway extension 
project would violate various federal environmental, 
transportation, and civil rights laws, including the 
National Environmental Policy Act, 42 U.S.C. 4331 
et seq., the Federal-Aid Highway Act, 23 U.S.C. 
109(h), and Titles VI and VIII of the Civil Rights 
Act of 1964, 42 U.S.C. 2000d et seq., 3601 et seq. 
(Pet. App. 23 & n .l; J.A. 73-96). Respondents sought 
to prohibit further planning or construction of the 
highway project by petitioners until the project was 
brought into compliance with these federal laws (Pet. 
App. 24). Respondents’ Title VI claim was based on 
the allegation that the highway extension project was 
receiving federal financial assistance and that its 
proposed location would, by destroying the Crest 
Street neighborhood, displace a disproportionately 
large number of blacks (J.A. 80-81, 86).



4

2. Having received “ information indicat[ing] a 
possible failure to comply with [Title VT]” USDOT 
initiated an investigation of petitioners’ “ practices 
and policies” (see 49 C.F.R. 21.11(c)) (Pet. App. 
24). In February 1980, USDOT informed petitioners 
that its investigation had resulted in a preliminary 
finding of reasonable cause to believe that the pro­
posed highway extension would be a prima facie vio­
lation of Title VI and USDOT’s implementing regula­
tions (Pet. App. 3, 24; J.A. 97-99).1a Accordingly, 
USDOT pursued “ informal means” (see 49 C.F.R. 
2 1 .1 1 (d )(1 )) resolving petitioners’ apparent non- 
compliance by initiating informal negotiations with 
petitioners (Pet. App. 4, 24). Representatives of the 
Federal Highway Administration, the City of Dur­
ham, and opponents of the highway, including re­
spondents, participated in these negotiations (ibid.). 
By February 1982, respondents and petitioners had 
reached a preliminary agreement on freeway design, 
relocation assistance benefits, and other assistance 
to mitigate the project’s adverse impact, and were 
continuing to negotiate on remaining aspects of al­
leged discrimination (id. at 4, 25).

In August 1982, with negotiations ongoing, peti­
tioners moved to dissolve a 1973 judicial decree that 2

2 The letter from USDOT referred specifically to 49 C.F.R. 
21.5 (b) (3 ) , which provides:

In determining the site or location of facilities, a recipient 
or applicant may not make selections with the purpose 
or effect of excluding persons from, denying them the 
benefits of, or subjecting them to discrimination under 
any program to which this regulation applies, on the 
grounds of race, color, or national origin; or with the 
purpose or effect of defeating or substantially impairing 
the accomplishment of the objectives of the Act or this 
part.

D

had enjoined the proposed highway extension based 
on noncompliance with various federal environmental 
and transportation laws, unrelated to Title VI (Pet. 
App. 5, 25). On October 15, 1982, respondents moved 
to intervene in that pending judicial action, alleging 
violation of federal environmental, transportation, 
uniform relocation assistance, and civil rights laws, 
including Title VI (ibid.’, J.A. 100-102). On De­
cember 14, 1982, without ever having acted on re­
spondents’ intervention motion, the district court en­
tered a consent judgment dissolving the injunction 
and dismissing the original lawsuit upon which the in­
junction was based (Pet. App. 5-6; J.A. 153-157). The 
consent judgment also announced that on November 
19, 1982, respondents and petitioners had reached 
agreement on those matters remaining in controversy 
and, accordingly, respondents did not oppose dissolu­
tion of the injunction, yet “ reserve[d] their claim for 
attorney[ ’ ] s fees against [petitioners]” (Pet. App. 6 
n.6; J.A. 155). Respondents signed the consent judg­
ment in their capacity as applicants for intervention 
(J.A. 156). Petitioners and respondents and the City 
of Durham executed a Final Mitigation Plan, which 
provided respondents with substantial relief, in a pub­
lic ceremony the day after the court order (Pet. App. 
6; J.A. 108-130).

3. On November 30, 1983, respondents filed this 
action against petitioners for recovery of attorney’s 
fees based on 42 U.S.C. 1988 (Pet. App. 27; J.A. 
3-52). Respondents claimed they were “prevailing 
parities']” within the meaning of that statutory pro­
vision and, accordingly, entitled to recovery of at­
torney’s fees (J.A. 8-9). The fee request covered 
five years and eight months— from the date re­



b

spondents first hired legal counsel to the date of the 
announcement of the Final Mitigation Plan— and 
totaled 1,261.25 hours of attorney time, all but 87 
hours of which was time spent prior to the motion to 
intervene, and over half of which occurred prior to 
initiation of the USDOT informal conciliation process 
(Pet. App. 30; J.A. 10-52).

The district court granted petitioners’ motion to 
dismiss for failure to state a claim and for judgment 
on the pleadings (Pet. App. 22-40). The court held 
that Section 1988 does not authorize an award of at­
torney’s fees for work performed in Title VI federal 
agency administrative proceedings (Pet. App. 35-36). 
The court distinguished on several grounds this Court’s 
ruling in New York Gaslight Club, hie v. Carey, 447 
U.S. 54 (1980), that identical language relating to at­
torney's fees for private enforcement of Title VII (see 
42 U.S.C. 2000e-5(k)) did include work performed in 
Title VII state administrative proceedings (Pet. App. 
33-34). In particular, the district court noted that 
for Title VI, unlike Title VII, exhaustion of adminis­
trative remedies is not required prior to filing a pri­
vate lawsuit, those remedies “ not [being] integral 
parts of [respondents’ ] federal court remedy” (id. at 
34, 35 ).3 According to the district court, “ adminis­
trative proceedings under Title VI * * * seem par­
ticularly unsuited for an award of fees because in­
dividuals, beyond filing an administrative complaint, 
have little input or control into the decisional process” 
(ib id .); the complainant “ is not a mandatory party 
to the USDOT investigation nor to any action or in­

3 The court rejected (Pet. App. 36-37) respondents’ conten­
tion that it was reasonable for them to believe in September 
1978 (the date respondents filed their administrative com­
plaint) that exhaustion of administrative remedies was 
necessary.

t

action taken with respect to the recipient of federal 
funds” (id. at 37). Finally, the court concluded (id. 
at 38) that respondents were not entitled to attorney’s 
fees for the small portion of time allocated to the 
effort to intervene in the pending district court law­
suit. Specifically, the court found that “ there [was] 
no evidence that the * * * effort[] * * * significantly 
contributed to the execution of * * * [or] was even a 
catalyst to the Plan” (id. at 39).

4. The court of appeals reversed (Pet. App. 1- 
21). At the outset, the court noted that petitioners 
“ concede that [respondents] gained substantial re­
lief that was causally related to their administrative 
complaint and that [respondents] therefore are ‘pre­
vailing parties’ ” (id. at 8). The court went on to 
hold (id. at 8-13) that the word “ proceeding” in Sec­
tion 1988 embraced “ administrative proceeding,”  re­
lying on New York Gaslight Club, hie. v. Carey, su­
pra, and that the USDOT proceeding initiated by re­
spondents’ complaint was a “ proceeding to enforce” 
Title VI, within the meaning of Section 1988. The 
court of appeals reasoned, moreover, that federal ad­
ministrative proceedings under Title VI could be 
“ analogized to * * * mandatory [administrative] pro­
cedures” because “ [t]hey are the primary and per­
haps the only remedy for violation of * * * [T ] itle 
[V I ]” (Pet. App. 13).

The court rejected petitioners’ contention that 
Webb v. County Ed. of Educ., No. 83-1360 (Apr. 17, 
1985), supported denial of respondents’ claim for 
attorney’s fees. In Webb, this Court held that a 
party who had prevailed in his 42 U.S.C. 1983 law­
suit was not entitled to recovery of attorney’s fees 
for time spent in state administrative proceedings 
pursuing state law claims that related to the same 
incident. The court of appeals concluded that Webb



8

stood for the proposition that administrative pro­
ceedings could be the proper subject of a Section 
1988 attorney’s fees claim so long as the procedures 
were “ important parts of the statutory enforce­
ment scheme [,•]”  which, the court held, Title VI fed­
eral administrative procedures were (Pet. App. 
18). Finally, the court of appeals concluded that 
Section 1988 authorized an independent action to 
recover attorney’s fees for time spent in an adminis­
trative proceeding, but that “ [e]ven i[ f ]  some type 
of court action were required to trigger § 1988’s fee 
provision, [respondents] would still have a claim to 
fees by virtue of their proposed complaint and mo­
tion to intervene in the [pending district court] 
action” (id. at 20).

SUM M ARY OF ARGUMENT

The court of appeals’ decision below, awarding re­
spondents attorney’s fees under Section 1988 for 
time spent in Title VI administrative proceedings, 
misapplies 42 U.S.C. 1988 and rests on a misconcep­
tion of the role of private parties, such as respondents, 
in Title VI administrative proceedings. Section 
1988 provides that “ [i]n  any action or proceeding to 
enforce a provision of” certain civil rights laws, in­
cluding Title VI of the Civil Rights Act of 1964, 42 
U.S.C. 2000d et. seq., the court may award the “ pre­
vailing party” attorney’s fees as part of the party’s 
costs. Title VI prohibits any discrimination on the 
basis of race, color, or national origin in any program 
or activity receiving federal financial assistance (42 
U.S.C. 2000d) and, to that end, confers upon federal 
agencies dispensing federal financial assistance the 
primary responsibility for enforcing that mandate. 
Specifically, Title VI authorizes each agency to termi­

9

nate or refuse to grant financial assistance, or to 
pursue other authorized means of achieving Title VI 
compliance, upon an express finding (on the record) 
of a Title VI violation, provided that the agency first 
determines that Title VI “ compliance cannot be se­
cured by voluntary means” (42 U.S.C. 2000d-l).

An individual or group may, as respondents did here, 
set in motion a federal agency investigation and com­
pliance review by notifying the agency of an alleged 
Title VI violation, but the private complainant is not 
a formal “ party”  to those agency efforts, as required 
by Section 1988, nor are the agency’s efforts to secure 
voluntary means o f compliance “ proceeding^]”  to 
enforce Title VI, within the meaning of Section 1988. 
By express congressional design, Title V i’s adminis­
trative enforcement scheme relies on internal federal 
agency proceedings, within which the agency, as in­
vestigator and enforcer, possesses wide discretion to 
devote investigation resources, promote conciliation 
efforts, devise remedial schemes, and make funding 
termination determinations.

Nor is there any basis for supposing that Congress 
had a different understanding of the nature of Title 
VI administrative proceedings when Congress enact­
ed Section 1988. The legislative history surrounding 
enactment of Section 1988 reveals that Congress in­
tended that Section 1988 would apply only to private 
Title VI enforcement actions brought in court; there 
is no suggestion that Section 1988 would apply to 
Title VI administrative proceedings, especially in­
formal agency-sponsored negotiations, which are not 
even within the embrace of an attorney’s fee provi­
sion, such as the Equal Access to Justice Act, 5 
U.S.C. 504, 28 U.S.C. 2412(d), that specifically al­



10

lows awards for time spent in administrative pro­
ceedings.

Section 1988 applies, in all events, only to an ad­
ministrative proceeding that is an “ integral” com­
ponent of private enforcement of federal civil rights 
law (see Webb v. County Bd. of Educ., No. 83-1360 
(Apr. 17, 1985), slip op. 6 ), and Title VI adminis­
trative proceedings do not fit this description. Indeed, 
a major consideration leading to this Court’s en­
dorsement, with our support, of an implied private 
right of action to enforce Title VI in court, was the 
absence of a private administrative enforcement 
mechanism in Title VI. The practical effect of re­
spondents’ (and the court of appeals’ ) expansive 
reading of private enforcement of Title VI would be, 
however, to convert the federal agency enforcement 
mechanism into the very avenue for private enforce­
ment that this Court had assumed Title VI to lack. 
Congress enacted Title VI pursuant to its power under 
the Spending Clause and, consequently, the force of the 
Title VI nondiscrimination mandate depends on a po­
tential grantee of federal financial assistance accept­
ing the funds, including the conditions attached to 
their receipt. It is no doubt largely for this reason 
that Congress instructed federal agencies to enforce 
Title VI primarily through securing “ voluntary” com­
pliance. Respondents’ view of the role of private en­
forcement in administrative proceedings takes no ac­
count of these significant congressional concerns and 
threatens to undercut the effectiveness of Title VI.

Finally, any argument that our vieAV of private en­
forcement of Title VI will promote the premature 
filing of private lawsuits is without merit. The avail­
ability of a private right of action to sue a recipient 
of federal financial assistance in court is always lim­

i t

ited by the federal agency’s right to use its admini­
strative process to resolve the controversy either on 
its own or, should the agency prefer, with the assist­
ance of both the complainant and the recipient. Con­
sequently, a preemptive filing of a lawsuit by a 
complainant would not entitle the complainant to an 
award of attorney’s fees in the event (as in this 
case) that the federal agency efforts led to a favor­
able resolution. Otherwise, private causes of action 
to enforce Title VI, implied by the judiciary, could 
usurp the federal agency enforcement mechanism of 
Title VI, expressly created by Congress. We can not 
suppose that Congress intended such a result in en­
acting either Title VI itself or the attorney’s fee pro­
vision of Section 1988.

ARGUM ENT

SECTION 1988 DOES N OT AUTHORIZE AN AW AR D  
OF ATTO R N EY’S F E E S TO COM PLAINANTS IN  
TITLE VI AD M IN ISTR ATIVE PROCEEDINGS W H E N  
TH EIR  ROLE IS CONFINED TO NOTIFICATION OF 
THE APPROPRIATE FED ER AL AGENCY OF A  VIO­
LATION OF TITLE VI OF TH E CIVIL RIGHTS  
ACT OF 1964 AND TO PAR TICIPATION IN INFOR­
M AL AGENCY-SPONSORED NEGOTIATIONS TH A T  
RESULT IN A  FAVORABLE SETTLEM EN T AGREE­
M ENT

The decision of the court of appeals below, revers­
ing the district court’s dismissal of respondents’ 
claim for attorney’s fees, fundamentally misconceives 
the federal agency administrative enforcement scheme 
of Title VI of the Civil Rights Act of 1964, 42 U.S.C. 
2000d et seq., expressly created by Congress for the 
investigation and resolution of allegations of Title 
VI violations. The statutory language of Title VI, 
its legislative history, and decisions of this Court re­



12

fleet the settled view that the administrative enforce­
ment process created by Congress is exclusively a fed­
eral agency enforcement mechanism, in which private 
parties, such as respondents, have no statutorily de­
fined investigatory or enforcement role, and may par­
ticipate only at the invitation of the appropriate fed­
eral agency. Congress deliberately chose to provide 
federal agencies with wide discretion in investigat­
ing and remedying Title VI violations, largely in 
response to the special nature of requirements, such 
as those in Title VI, that depend on the recipient’s 
continued acceptance of federal funding.

The court of appeals incorrectly assumed, however, 
that Congress created the administrative enforcement 
framework to provide for private enforcement of 
Title VI. Under the court of appeals’ reading of 
Title VI, private individuals or groups, such as re­
spondents, have formal “ party”  status in internal 
federal agency enforcement and remedial efforts and 
are entitled to an award of attorney’s fees for “ pre­
vailing” based on their participation in agency ef­
forts to resolve Title VI disputes. In this case, the 
agency “ proceeding[s]” in which respondents partici­
pated were a series of informal negotiations spon­
sored by USDOT to promote, pursuant to explicit 
statutory command (see 42 U.S.C. 2000d-l), “ volun­
tary means” of Title VT compliance. We believe that 
the court of appeals’ construction of Title VI is at 
odds with congressional intent and would undermine 
the ability of federal agencies to investigate allega­
tions of Title VI violations and, if found, to remedy 
the problem, particularly through voluntary means, 
as required by the statute. Certainly, nothing in 
Section 1988 supports such a dramatic reworking of 
federal agency enforcement of Title VI. For this

reason, we support reversal of the decision of the 
court of appeals below and agree with petitioners 
that respondents’ claim for attorney’s fees should be 
dismissed.

A. Title VI Administrative Complainants Are Not 
“Partfies]” To A  “Proceeding” To Enforce Title VI 
Within The Meaning Of Section 1988

Respondents base their claim for attorney’s fees 
on 42 U.S.C. 1988, which provides that “ [i] n any 
action or proceeding to enforce a provision o f” cer­
tain civil rights laws, including Title VI, the court 
may award the “ prevailing party”  attorney’s fees as 
part of the party’s costs. Although we have no quar­
rel with the notion that respondents’ cause “ pre­
vailed,” in the sense that the Final Mitigation Plan 
extends substantial relief to those interests repre­
sented by respondents, we do not believe that respond­
ents meet the remainder of Section 1988’s require­
ments. Respondents participated in the informal ne­
gotiations sponsored by USDOT, but without the 
formal “ party” status required by Section 1988. And 
those informal negotiations were, in all events, not 
“ proceeding [s] to enforce * * * Title VI” within the 
meaning of Section 1988.4 *

4 Examination of the record suggests that petitioners’ ap­
parent concession below, noted by the court of appeals (Pet. 
App. 8 ), that respondents were “ prevailing parties” was 
directed to respondents’ “prevailing” status, and not to their 
status as formal “parties.” As described by the court of 
appeals, petitioners admitted only that respondents “ gained 
substantial relief that was causally related to their adminis­
trative complaint” (ibid.). W e do not read this “concession” 
as disturbing the separate argument, relied on in part by the 
district court (id. at 37), that respondents did not possess
formal “party” status in the informal negotiations sponsored 
by USDOT.



14

The structure of Title VI makes clear that federal 
agency enforcement proceedings are meant to focus 
primarily on assuring the funding recipient’s com­
pliance with Title VI rather than on providing indi­
vidualized relief to victims of discrimination. Title 
VI contemplates that the federal agency will func­
tion in a classic law enforcement capacity, represent­
ing the public interest rather than enforcing the 
rights of particular complainants. The statute de­
fines the funding recipient’s rights and the funding 
agency’s enforcement tools, but it does not define any 
role in the investigation or enforcement process for a 
person who complains of the recipient’s conduct.

In Title VI, Congress conferred upon those federal 
agencies dispensing federal financial assistance the 
primary responsibility for ensuring that programs or 
activities supported do not discriminate on the basis 
of race, color, or national origin (42 U.S.C. 2000d-l). 
Title VI authorizes each agency to terminate or re­
fuse to grant assistance to a recipient of federal 
financial assistance, or to pursue other authorized 
means to achieve Title VI compliance, upon an express 
finding on the record, after opportunity for hearing, 
of a Title VI violation (ibid.). Termination of or 
refusal to grant assistance is limited both to the par­
ticular recipient (including any part thereof) found 
to be in noncompliance, and to the particular pro­
gram in which noncompliance is found. The statute 
provides, moreover, that the agency may not take 
remedial action until after advising the recipient of 
the failure to comply and after determining that 
“ compliance cannot be secured by voluntary means” 
(ibid.).

Reflecting this express statutory mandate, the vari­
ous federal agencies, with the advice and approval of

15

the Department of Justice (see Exec. Order No. 12,250, 
3 C.F.R. 298 (1980)), have promulgated Title VI im­
plementing regulations that establish an administra­
tive procedural framework for using complaints as a 
tool in Title VI enforcement rather than considering 
complaint resolution as an end in itself. Typically, the 
regulations outline an enforcement scheme that relies 
on pre-commitment compliance reviews, periodic com­
pliance reports, and compliance investigations (in 
the event that subsequently acquired information sug­
gests the possibility of a violation).6 Although 
USDOT regulations, like those of most federal agen­
cies, provide that the Secretary will investigate upon 
receiving any “ information indicat[ing] a possible 
failure to comply with [Title V I ]” (49 C.F.R. 21.11 
( c ) ) ,  complaint by a person who claims to be a vic­
tim of unlawful discrimination is only one possible 
source of such information (49 C.F.R. 21.11(b)). 
To effect compliance, the agency must first use “ in­
formal” or “voluntary” compliance efforts before 
resort to a formal adjudicatory hearing that could

6 See generally ACTION, 45 C.F.R. Pt. 1203; Department of 
Agriculture, 7 C.F.R. Pt. 15; Department of Commerce, 15 
C.F.R. Pt. 8 ; Department of Defense, 32 C.F.R. Pt. 300; 
Department of Education, 34 C.F.R. Pt. 100; General Services 
Administration, 41 C.F.R. Pt. 101-6.2; Department of Health 
and Human Services, 45 C.F.R. Pt. 80 ; Department of Hous­
ing and Urban Development, 24 C.F.R. Pt. 1 ; Department of 
the Interior, 43 C.F.R. Pt. 17; Department of Justice, 28 C.F.R. 
Pt. 42 Subpt. C ; Department of Labor, 29 C.F.R. Pt. 31; Small 
Business Administration, 13 C.F.R. Pt. 112; Department of 
State, 22 C.F.R. Pt. 141; Department of Transportation, 49 
C.F.R. Pt. 21; Veterans Administration, 38 C.F.R. Pt. 18. 
The first Title VI regulations were published on December 4, 
1964. See 29 Fed. Reg. 16273-16309.



10

lead to a funding cut-off (49 C.F.R. 21.13)." In those 
circumstances when evidence of discrimination has 
been supplied by a person who claims to be a victim, 
the regulations provide only that the complainant 
should be advised of the results of USDOT’s investi­
gation (49 C.F.R. 2 1 .1 1 (d )(2 )). Even when formal 
administrative hearings are held, the complainant is 
only advised of the time and place of the hearings 
(49 C.F.R. 21 .15(a)). The complainant plays no 
formal role in any of the administrative proceedings 
(49 C.F.R. 21.11, 21.13, 21.15, 21.17). Indeed, the 
regulations of many federal agencies explicitly pro­
vide that a complainant is not a “ party”  to any 
agency proceedings resulting from his complaint.7

8 See also 7 C.F.R. 15.8(c) (Department of Agriculture); 
15 C.F.R. 8.11(a) (Department of Commerce); 34 C.F.R. 
100.7(d) (Department of Education); 45 C.F.R. 80.7(d) 
(Department of Health and Human Services).

7 Those agencies that have formally promulgated detailed 
Title VI procedural regulations expressly declare the nonparty 
status of the complainant. See, e.g., 34 C.F.R. 101.23 (Depart­
ment of Education) (“A person submitting a complaint pur­
suant to [the Department’s complaint procedure] is not a 
party to the proceedings governed by [these regulations], but 
may petition, after proceedings are initiated, to become an 
amicus curiae.” ) ; 7 C.F.R. 15.66 (Department of Agriculture) 
(“ person submitting a complaint * * * is not a party” ) ; 24 
C.F.R. 2.23 (Department of Dousing and Urban Development) 
(same) ; 38 C.F.R. 18b.l8 (Veterans Administration) (same) ; 
45 C.F.R. 81.23 (Department of Health and Human Services) 
(same). The USDOT Title VI regulations, which do not 
include such detailed procedural regulations, do not explicitly 
declare the nonparty status of the complainant, but the im­
port of the regulations is clear, given that the complainant 
is provided with no formal role in any of the proceedings. 
The nonparty status of a complainant is also confirmed by 
the lenient standards established by the USDOT regulations

17

Thus, consistent with the deliberate congressional 
statutory design, the administrative framework for 
ensuring compliance with the Title VI nondiscrimi­
nation mandate is primarily a mechanism for the 
federal agency to ensure compliance with Title VI, 
rather than an avenue for private enforcement. The 
submission of a complaint by private entities, such 
as respondents in this case, provides only one of 
several means of triggering initiation of the federal 
agency administrative compliance review and enforce­
ment process. The proceedings that result remain 
under the exclusive control of the federal agency, 
within which the government, as investigator and 
enforcer, possesses wide discretion to devote investi­
gation resources, promote conciliation efforts, devise 
remedial schemes, and make fund-termination de­
terminations. As described by this Court in Cannon v. 
University of Chicago, 441 U.S. 677, 707 n.41 (1979) 
(citations omitted), in the context of Title IX (which 
was patterned after Title V I ) :

[The statute] confers a benefit on a class of per­
sons * * * [but does not] assure those persons 
the ability to activate and participate in the 
administrative process contemplated by the stat­
ute. * * * [T]he complaint procedure adopted by 
[the federal agency implementing regulations] 
does not allow the complainant to participate in 
the investigation or subsequent enforcement pro­
ceedings. Moreover, even if those proceedings 
result in a finding of a violation, a resulting

for defining who can be a complainant. Under USDOT regula­
tions, a person does not have to allege that he has been sub­
jected to unlawful discrimination, or even that he represents 
others who have been. (49 C.F.R. 2 1 .1 1 (b )). To be a com­
plainant, it is enough to allege that “ any specific class of per­
sons [is] be[ing] subjected to discrimination * * *” (ibid.).



XU

voluntary compliance agreement need not in­
clude relief for the complainant. Furthermore, 
the agency may simply decide not to investigate 
— a decision that often will be based on a lack of 
enforcement resources, rather than on any con­
clusion on the merits of the complaint.

The decision of the court of appeals below, by 
assuming complainants had formal “party” status, 
misapprehended the true nature of the proceedings 
and, as a result, misapplied Section 1988.

2. Examination of the legislative history surround­
ing the enactment of Section 1988 further confirms 
the view that Congress did not intend to apply Sec­
tion 1988 to Title VI administrative proceedings. 
During the 1976 debates on Section 1988 on the floor 
of the House of Representatives, several members 
questioned the significance of the reference in Sec­
tion 1988 to Title VI, on the ground that it was not 
clear that Title VI provided for a private right of 
action. See 122 Cong. Rec. 35116 (1976) (remarks 
of Rep. Q u ie); see also ibid, (remarks of Rep. Bau­
man). Rather than suggest that Section 1988 would 
apply to “ prevailing complainants” who participated 
in the federal administrative process provided by 
Title VI (then reflected in the implementing regula­
tions of the various federal agencies), a major pro­
ponent of the bill simply replied: “ This bill merely 
creates a remedy in the event the courts determine 
that an individual may sue under these statutes” (id. 
at 35124) (remarks of Rep. Railsback); see also id. 
at 35116 (same). No Member of Congress suggested, 
or appears to have seriously contemplated, that Sec­
tion 1988 would apply to Title VI apart from any 
judicially created private right of action to enforce 
Title VI in courts. Respondents, however, do not base

19

their Section 1988 claim for attorney’s fees on such a 
judicially created private right of action to enforce 
Title VI in court. Their novel claim is based instead 
on participation in federally sponsored informal nego­
tiations, available under the statute totally apart 
from any private enforcement rights implied by this 
Court subsequent to the enactment of Section 1988.

3. Contrary to respondents’ view (Br. in Opp. 9- 
13), neither New York Gaslight Club, Inc. v. Carey, 
447 U.S. 54 (1980), construing a virtually identical 
attorney's fee provision applicable to Title VII (42 
U.S.C. 2000e-5(k)), nor Webb v. County Bd. of 
Educ., No. 83-1360 (Apr. 17, 1985), construing Sec­
tion 1988 in the context of a claim for attorney’s 
fees based on a successful action brought under Sec­
tion 1983, supports respondents’ cause. Indeed, these 
two decisions are better read as supporting no fee 
award in the circumstances of this case. Most funda­
mentally, although Carey certainly stands for the 
proposition that the term “proceeding” in an attor­
ney’s fee provision may include an administrative 
proceeding, Webb makes clear that under Section 
1988 a person is not automatically entitled to an 
attorney’s fees award for participation in any ad­
ministrative proceeding related to that person’s civil 
rights claim.8 Instead, a court entertaining a Sec­

8 The meaning of the term “proceeding” is not, of course, 
generally confined to administrative proceedings and refers 
more typically to types of judicial proceedings. See, e.g., 28 
U.S.C. 1251 (original and exclusive jurisdiction lies in this 
Court for “actions or proceedings” involving ambassadors and 
other foreign officials and for “ actions or proceedings by a 
State against citizens of another State or against aliens” ) ; 
see also 28 U.S.C. 132, 143, 151, 1358, 1692, 1915, 1921, 2462. 
For that reason, the inclusion of the term “ proceeding” in an 
attorney's fee provision does not, by itself, compel the con­
clusion that Congress intended to extend awards to all admin-



20

tion 1988 claim must consider the nature of the ad­
ministrative proceeding, particularly whether the pro­
ceeding is an “ integral” component of the private 
enforcement scheme (Webb, slip op. G). As explained 
in Webb (id. at 5-7), the prevailing litigants in Carey 
were entitled to attorney’s fees for time spent in ad- 

>ministrative proceedings only because those proceed­
ings were an essential, indeed mandatory, part of 
private enforcement of the relevant statutory scheme 
(Title V II). In contrast, the prevailing litigant was 
not entitled to attorney’s fees for time spent in the 
administrative proceedings in Webb because they were 
“ not any part of the proceedings to enforce § 1983” 
(id. 6-7).

A  similar comparison of the nature of the adminis­
trative “ proceedings” at issue in this case to those in 
Carey compels, as in Webb, the conclusion that Sec­
tion 1988 does not authorize an award of attorney’s 
fees to respondents. Here, unlike in Carey (447 U.S. 
at 65; see 42 U.S.C. 2000e-5(f)) and as in Webb *

istrative proceedings. For instance, 28 U.S.C. 1 8 7 5 (d )(2 ), 
which provides for attorney’s fees awards to an employee who 
prevails in his claim that an employer unlawfully discrim­
inated against the employee based on his service on a jury, 
refers to “ any action or proceeding,” even though the statute 
nowhere contemplates any administrative proceedings. In 
Carey, moreover, the Court looked not just to the word “pro­
ceeding,” but more broadly to the legislative history and struc­
ture of Title VII before concluding that administrative pro­
ceedings were covered by the relevant attorney’s fee provi­
sion (see 447 U.S. at 62-64). In contrast, as this Court noted 
in Webb (slip op. 7 n.16), there are “ numerous references in 
[Section 1988’s] legislative history to promoting the enforce­
ment of the civil rights statutes ‘in suits,’ ‘through the courts’ 
and by ‘judicial process’ ” (quoting S. Rep. 94-1011, 94th 
Cong., 2d Sess. 2, 6 (1976) ; IT.R. Rep. 94-1558, 94lh Cong., 
2d Sess. 1 (1 9 7 6 )).

21

(slip op. 6), respondents were not required to partici­
pate in the administrative proceedings for which they 
now claim entitlement to attorney’s fees. See, e.g., 
Chowdhury v. Reading Hospital & Medical Center, 
677 F.2d 317, 322 (3d Cir. 1982) ( “ exhaustion of 
the agency funding termination procedures * * * [is 
not] a prerequisite to a private action” ), cert, denied, 
463 U.S. 1229 (1983).° Even more importantly, how­
ever, the relationship of the federal administrative 
proceedings to the interest of the individual complain­
ant is fundamentally different in Titles VI and VII. 
The federal (and related state) administrative pro­
ceedings under Title VII, unlike Title VI, are statu­
torily designed to resolve the individual complainant's 
claim of discrimination; the Equal Employment Op­
portunity Commission (EEOC), for instance, is em­
powered to bring civil suits on the individual’s behalf, 
seeking reinstatement, back pay, and injunctive relief 
(see 42 U.S.C. 2000e-5(g)). Title VII, moreover, 
specifically contemplates the EEOC “entering] into 
a conciliation agreement to which the person ag­
grieved is a party”  (42 U.S.C. 2000e-5(f) (emphasis 
added)).

In contrast, the Title VI administrative process, as 
described above, is consciously directed not to the 
interests of the individual complainant, but more 
broadly concerned with the relationship of the fed­
eral agency to the recipient of federal financial as­
sistance. The complainant is not even a formal 
“ party” even when the agency holds a formal ad-

0 As this Court has previously noted, the position of the 
federal government has been that private enforcement of 
Title IX  (or Title V I) does not require prior exhaustion of 
administrative remedies. See Cannon V. University of Chicago, 
441 U.S. at 687-688 n.8.



ministrative hearing, much less when the agency con­
ducts “ informal” negotiations and “voluntary” con­
ciliation. The complainant may participate only 
when invited by the federal agency. Hence, while 
the federal administrative framework of compliance 
review and enforcement is an essential part of Title 
VI enforcement, it is not an “ integral” component of 
frrivcLte Title VI enforcement; Section 1988 applies 
only to the latter circumstance.

4. Finally, we note that an extension of the scope 
of attorney’s fee awards to include informal agency 
negotiations, such as those that took place in this 
case, would be unprecedented. Even in the Equal 
Access to Justice Act, 5 U.S.C. 504, 28 U.S.C. 2412 
(d ) (3 ) ,  where Congress expressly authorizes attor­
ney’s fee awards for time spent in administrative 
proceedings, the scope of the term “ proceedings” is 
limited to adversary adjudications and does not em­
brace informal agency proceedings, such as the in­
formal negotiations at issue in this case. Fee awards 
under the Equal Access to Justice Act are further 
limited to a “ party” to the adjudicatory proceedings 
(ibid.), which, as described above, is a status respond­
ents did not possess.10

10 The Equal Access to Justice Act defines “ party,” by refer­
ence to the Administrative Procedure Act, 5 U.S.C. 5 51(3 ), as 
“a person or agency named or admitted as a party, or prop­
erly seeking and entitled as of right to be admitted as a 
party * * * [or] admitted by an agency as a party for limited 
purposes.” Respondents would not meet this definition. If 
every person who complained to a federal agency about a vio­
lation of Title VI automatically became a party to the federal 
compliance review and enforcement process, the administra­
tive scheme would become so cumbersome as to be ineffective.

A recent Fifth Circuit decision, Arriola v. Har- 
ville, 781 F.2d 506 (1986), construing Section 14 of 
the Voting Rights Act of 1965, 42 U.S.C. 1973Z, 
similarly cuts against respondents’ claim for attor­
ney’s fees. Section 14 of the Voting Rights Act con­
tains an attorney’s fee provision virtually identical 
to Section 1988, authorizing fees to a prevailing party 
in “ any action or proceeding to enforce the voting 
guarantees” of the Constitution (42 U.S.C. 1973J)- 
In Arriola, the Fifth Circuit concluded that indi­
viduals who participate in the preclearance process 
under Section 5 of the Voting Rights Act, 42 U.S.C. 
1973c, are not entitled to an award of fees, relying 
on the nonadversary nature of the preclearance proc­
ess and the limited role of third parties in the process 
(781 F.2d at 510). The Fifth Circuit stressed several 
factors, including how (1) “ ‘action or proceeding’ 
commonly refers to some sort of adversary proceed­
ing in the nature of a traditional lawsuit” (ibid. ) ; 
(2) “ [t]he preclearance process was developed * * * 
to avoid a judicial decision”  (ibid, (emphasis in 
original)); and (3) “ interested individuals and 
groups have none of the rights o f parties” (ibid.). 
These same factors are present in this case and 
equally support dismissal of respondents’ Section 1988 
claim.

Just as there are rules that govern who may be a party to a 
lawsuit (see Fed. R. Civ. P. 17-25), so too there must be a 
procedure for limiting the parties to the federal administra­
tive process. That respondents participated in the agency’s 
informal conciliation efforts did not, moreover, convert the 
federal administrative process into an alternative forum for 
the complainant to engage in an adversary “proceeding” with 
the federal-aid recipient, within the meaning of Section 1988.



B. Application Of Section 1988 To Title VI Administrative 
Proceedings Is Inconsistent With The Rationale Of 
The Decisions Of This Court Implying A Private Right 
Of Action To Enforce Title VI And Threatens To Dis­
rupt Agency Enforcement Efforts

1. Denial of respondents’ attorney’s fees claim 
does not detract, moreover, from the important, yet 
distinct, role o f private enforcement of Title VI en­
dorsed by this Court. A majority of this Court, with 
the urging of the federal government, has adopted the 
view that there exists a “private right of action,” 
implied by the judiciary, to enforce both Title VI and 
Title IX against the recipients of federal funds. See 
Regents o f the University of California v. Bakke, 
438 U.S. 265, 419-420 & n.26 (1978) (opinion of 
Stevens, J.) citing U.S. Supp. Br. Amicus Curiae at 
24-34 (Bakke) ; Cannon v. University of Chicago, 441 
U.S. at 702 & n.33, 707-708 & nn. 41 & 42; see also 
Guardians Ass’n v. Civil Service Comm’n, 463 U.S. 
582, 593-595 (1983) (opinion of White, J .). Re­
spondents, however, seek to expand and alter the role 
of private enforcement of Title VI in a manner that 
ignores the rationale of those earlier decisions and 
that threatens to interfere with federal enforcement 
efforts.

In particular, this Court allowed private rights of 
action under Title VI in part to avoid “ the dis­
ru ption ] of [agency’s] efforts efficiently to allocate 
its enforcement resources” that a suit to compel either 
agency investigation or termination of agency fund­
ing would create (Cannon, 441 U.S. at 707 n.41). 
The Court was also motivated by its understanding 
of the nature of administrative agency enforcement, 
which was not, by congressional design, intended to 
protect the interests of the individual complainant 
(ibid.; see also Adams v. Bell, 711 F.2d 161, 167

25

(D.C. Cir. 1983) ( “ [t]he primary mechanism [for 
private enforcement] is a Title VI suit against the 
{recipient] itself” ), cert, denied, 465 U.S. 1021 
(1984)). The Court discounted the potential for 
interference between the express congressional fed­
eral agency enforcement scheme and private rights 
of action, implied by the judiciary, on the ground, 
suggested by us, “ that if  the possibility of inter­
ference arises in another case, appropriate action can 
be taken by the relevant court at that time” (441 
U.S. at 706 n.41).

The practical effect of respondents’ expansive read­
ing of private enforcement of Title VI, however, 
would be to convert the federal agency enforcement 
mechanism into an avenue for private enforcement, 
ignoring the original impetus for implying private 
rights of action and also interfering with the express 
congressional agency enforcement scheme.11 While 
the potential for such interference always offers a 
reason for limiting a judicially implied private right 
of action, the need is especially great in a case, such 
as this one, which arises in the context of congres­
sional exercise of its power under the Spending 
Clause. “ This is because the receipt of federal funds 
under typical Spending Clause legislation [such as 
Title VI] is a consensual matter: the State or other 
grantee weighs the benefits and burdens before ac­
cepting the funds and agreeing to comply with the 
conditions attached to their receipt”  (Guardians Ass’n 
v. Civil Service Comm’n, 463 U.S. at 596 (opinion of

11 See University of California V. Bakke, 438 U.S. at 419 
n.26 (opinion of Stevens, J.) (“ Arguably, private enforcement 
of th[e] ‘elaborate mechanism’ [for federal agency enforce­
ment] would not fit within the congressional scheme.” ) (cita­
tions omitted).



2(3

White, J . ) ; cf. Pennhurst State School <6 Hospital v. 
Halderman, 451 U.S. 1, 17-18 (1981)). No doubt 
for this reason, in Title VI, Congress instructed the 
federal agencies to rely in the first instance on in­
formal conciliation efforts and voluntary means of 
compliance to resolve Title VI violations. Respond­
ents’ view of the role of private enforcement, includ­
ing application of Section 1988 to their participation 
in informal agency-sponsored negotiations, takes no 
account of these significant congressional concerns 
and would unduly expand the role of private enforce­
ment of Title VI in a manner that threatens the pre­
eminent federal enforcement role.12

12 There is also no clear authorization for a lawsuit, such as 
respondents’, filed for the sole purpose of recovering attorney’s 
fees under Section 1988. The plain words of Section 1988 do 
not appear to contemplate such a filing; the statute merely 
provides a court with discretion to award the prevailing party 
attorney’s fees “ [i]n any action or proceeding to enforce
* * * * Title V I” (42 U.S.C. 1988). Respondents, however, 
have not filed this action “ to enforce * * * Title V I” and, con­
sequently, do not appear to fall within the terms of the stat­
ute. To be sure, this Court has (in dicta) previously inti­
mated in the context of reviewing the attorney’s fee provision 
applicable to Title VII (42 U.S.C. 2000e-5(k)) that “ [i]t  
would he anomalous to award fees to the complainant who is 
unsuccessful or only partially successful in obtaining [admin­
istrative] remedies, but to deny an award to the complainant 
who is successful in fulfilling Congress’ plan that federal poli­
cies be vindicated at the [administrative] level” (Carey, 447 
U.S. at 66 ; but see id. at 70-71 (Stevens, J., concurring)). 
These concerns, however, are not so weighty in the Title VI 
context where the administrative enforcement framework is 
not (as discussed previously) an indispensable element of 
private enforcement. Title VII, moreover, expressly authorizes 
a civil suit in federal court (see 42 U.S.C. 2000e-5 (f) (1 ) ) ,  
while private enforcement of Title VI depends on a right of

27

In this case, for example, there were never any 
formal agency administrative proceedings. Instead, 
USDOT initiated informal negotiations with peti­
tioners, respondents, and other groups interested in 
the highway project, as part of the agency’s efforts 
to promote voluntary means of compliance. It is 
hardly consistent with the informal or voluntary 
nature of those negotiations to suggest that partici­
pation of complainants, such as respondents, triggers 
the attorney’s fee provision of Section 1988. Indeed, 
application of Section 1988 would likely stifle mean­
ingful informal settlement discussions, contrary to 
Congress’ explicit wishes in Title VI. Rather than 
working freely with others to reach a consensus posi­
tion, complainants who have a potential ability to 
recover attorney’s fees may be more likely to adopt 
an adversary posture consistent with the expectation 
that they would ultimately be reimbursed for their 
expenses. For this reason, the prospect that fees 
could be recovered against the recipient might lead 
to a refusal to allow the complainant to participate 
in the negotiations (leaving the federal agency and 
the recipient to work out the agreement)

2. Finally, respondents may argue that our theory 
of the relationship between private and federal agency 
enforcement would have the effect of scuttling effec-

action implied by the judiciary; consequently, maintenance of 
respondents’ lawsuit depends on a further expansion of the 
scope of private rights of action under Title VI.

,s Alternatively, should complainants continue to participate, 
application of Section 1988 could change the ultimate terms 
of the agreement; the recipient, knowing that it faces the 
prospect of attorney’s fees, could simply be less willing to 
agree to incur expenses associated with the merits of the 
dispute.



tive informal negotiations by promoting the prema­
ture filing of lawsuits by parties who wish to be in 
a position to recover their attorney’s fees. See H.R. 
Rep. 94-1558, 94th Cong., 2d Sess. 7 (1976) ( “A 
‘prevailing party’ should not he penalized for seeking 
an out-of-court settlement, thus helping to lessen 
[court] congestion.” ). “ We cannot assume[, how­
ever,] that an attorney would advise the client to 
forego an available avenue of relief solely because 
§ 1988 does not provide for attorney’s fees for work 
performed in the * * * administrative forum” (Webb, 
slip op. 7 n.15). But, in all events, any such argu­
ment would underestimate the full import of our view 
of the proper relationship between private enforce­
ment of Title VI and the federal administrative 
framework for compliance review and enforcement 
under Title VI.

Simply put, a complainant may not be required to 
exhaust the federal administrative proceedings, but 
the absence of an exhaustion requirement does not 
place private judicial enforcement on an equal (let 
alone higher) footing than federal agency enforce­
ment. Rather, exhaustion is unnecessary only because 
the administrative remedy, while central to Title VI 
enforcement, was not intended to be an avenue of 
private relief, not because private judicial enforce­
ment can ignore the administrative enforcement 
framework expressly created by Congress. Private 
enforcement, which is permitted by inference from 
the statutory scheme, should always be tempered by 
the needs of the explicit statutory requirements of 
federal agency administrative enforcement and com­
pliance review. Hence, if requested by the federal 
government, a court should normally stay a private 
Title VI enforcement action pending completion of

federal administrative efforts, including investiga­
tion, conciliation efforts, and remedial determinations, 
in order to avoid any potential interference between 
private enforcement and the federal agency’s own 
enforcement efforts. See Cannon, 441 U.S. at 687 
n.8.14 A preemptive filing of a lawsuit by a com­
plainant consequently would not necessarily entitle 
the complainant to an award of attorney’s fees in the 
event (as in this case) that the federal agency efforts 
led to a favorable resolution. The availability of a 
private right of action to sue a recipient in court does 
not mean that a private complainant is completely 
free to seek judicial relief without any regard to the 
federal agency’s right, in the first instance, to make 
reasonable efforts to resolve the controversy either 
on its own or, should the agency prefer, with the 
assistance of both the complainant and the recipient. 
To be sure, under our view, private enforcement 
might occasionally be stayed pending federal agency 
enforcement efforts, but we believe that result is 
consistent with the statutory scheme envisioned by 
Congress when enacting Title VI.* * * 18

14 Of course, the converse is equally true. The federal agency
is not generally obliged to act first and may simply defer to the
private enforcement proceeding.

18 Of course, hypothetical circumstances may exist where a 
private individual might be able to maintain a legitimate claim 
for attorney’s fees for time spent in administrative proceed­
ings under the theory that time spent in those proceedings 
was “reasonably expended on the litigation * * *” (Webb, slip 
op. 8 (emphasis in original), quoting Hensley v. Eckerhart, 
461 U.S. 424, 433 (1983)). This would require at least a 
showing that a “ discrete portion of the work product from 
the administrative proceedings was work that was useful and 
of a type ordinarily necessary to advance the * * * litigation” 
(Webb, slip op. 9 ). Here, of course, there was no litigation



ou

CONCLUSION

The judgment of the court of appeals should be 
reversed.

Respectfully submitted.

C harles F ried 
Solicitor General

W m . B radford Reynolds 
Assistant Attorney General

Carolyn  B. K u iil  
Deputy Solicitor General

R ichard J. L azarus 
Assistant to the Solicitor General

B rian  K. Landsberg  
M arie K lim esz M cE lderry 

Attorneys

A pril 1986

and, accordingly, such an alternative showing is not available 
to respondents. Respondents’ effort to intervene in a pending 
(non-Title V I) lawsuit, never acted on by the district court, 
was incidental to the settlement agreement and does not sup­
ply the necessary threshold “ litigation.” As the district court 
found (Pet. App. 39), “ there is no evidence that the * * * 
effort[] * * * significantly contributed to the execution of 
* * * [or] was even a catalyst to the [Final Mitigation] Plan.”

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