League of United Latin American Citizens v. Texas Attorney General Petition for a Writ of Certiorari

    UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT 

NO. 82-5154/5158

LEONARD WEBB,
Plaintiff-Appellant 
Cross-Appellant,

-v-
COUNTRY BOARD OF EDUCATION OF DYER 
COUNTY, TENNESSEE,

Defendants-Appellees 
Cross-Appellants.

On Appeal From The United States District Court 
For the Western District of Tennessee

BRIEF FOR PLAINTIFF-APPELLANT-CROSS-APPELLEE

AVON N. WILLIAMS, JR.
RICHARD H. DINKINS

203 Second Avenue North 
Nashville, Tennessee 37201 
(615) 244-3988

JACK GREENBERG 
BILL LANN LEE 
DOBORAH FINS 

Suite 2030 
10 Columbus Circle 
New York, New York 10019 
(212) 586-8397

Attorneys for Plaintiff-Appellant 
Cross-Appellee



TABLE OF CONTENTS
Pa^e

Question Presented ......................................  1
Statement ...»............................................ 2

Administrative Proceedings ........................  2
Judicial Proceedings ..............................  5

Argument .................................................
I. The Statutory Language of § 1988 Permits 

Recovery of Attorney's Fees for Legal 
Representation in Administrative
Proceedings .................................. 12

II. Legislative History Supports Recovery
of Attorney's Fees for Legal Representa­
tion in Administrative Proceedings ......... 18

III. Permitting Recovery of Attorney's Fees for 
Legal Representation in Administrative 
Proceedings Fulfills the Purposes of
the Statute ................................. 24

Conclusion ............................................. 22
i

Certificate of Service .................    33



TABLE OF AUTHORITIES

Page

Cases
Bartholomew v. Watson, 665 F.2d 910 (9th Cir. 

1982) ......................... ............. 12,13,22,23,29
Blow v. Lascaris, 50 U.S.L.W. 2178 (N.D. N.Y. 

1981), affirmed, 668 F.2d 670 (3d Cir. 1982) 31
Booker v. Brown, 619 F.2d 57 (10th Cir. 1980) 23
Brown v. Bathke, 588 F.2d 634 (8th Cir. 1978) 22
Brown v. Culpepper, 561 F.2d 1177 (5th Cir. 

1977) ....................................... 32
Cannon v. University of Chicago, 441 U.S. 677 

(1979) ............... ....................... 14

Chandler v. Roudebush, 425 U.S. 840 (1976) 27
Chrapliwy v. Uniroyal, Inc., 670 F.2d 760 

(7th Cir. 1982) ............................ 17,20,24,30,31

Davis v. Barr, 373 F. Supp. 740 (E.D. Tenn. 
1973) .............. ........................ 3

Fisher v. Adams, 572 F.2d 406 (1st Cir. 1978) 23

Foster v. Boorstin, 561 F.2d 340 (D.C. Cir. 
1977) ....................................... 21,23,28

Harkless v. Sweeny Independent School District, 
608 F .2d 594 (5th Cir. 1979) .............. 27

Hatton v. County Board of Education of Maury 
County, Tennessee, 472 F.2d 457 (6th Cir. 
1970) ....................................... 3

Johnson v. United States, 554 F.2d 632 (4th 
Cir. 1977) ................................. 23

Kulkarni v. Alexander, 662 F.2d 758 (D.C. Cir. 
1978) ....................................... 18,20,24

Maher v. Gagne, 448 U.S. 122 (1980) ......... 15,16,19,29,31

- ii -



Pa^e

Maine v. Thiboutot, 448 U.S. 1 (1980) ......  15
Martinez v. California, 444 U.S. 277 (1979) 16
Monroe v. Bd. of Com'rs of City of Jackson,

581 F .2d 581 (6th Cir. 1978) ..............  32
NAACP v. Medical Center, Inc. 599

F. 2d 1247 (3d Cir. 1979) ........ .........  14
New York Gaslight Club, Inc. v. Carey, 447

U.S. 54 (1980) .............................  Passim
Northcross v. Board of Education, 611 F.2d 

624 (6th Cir. 1979), cert, denied, 447
U.S. 911 (1980) ..........................  12,18,20,22,25

Parker v. Califano, 561 F.2d 320 (D.C. Cir.
1977) ................. .....................  19

Parker v. Matthews, 411 F. Supp. 1059
(D.D.C. 1976) ..............................  19,21,23,28

Richards v. Reed, 611 F.2d 545 (5th Cir. 1980) 23
Seals v. Quarterly County Court, 562 F.2d 390,

394 (6th Cir. 1977) . ........................  18
Smith v. Califano, 446 F. Supp- 530 (D.D.C.

1978) ....................................... 23
Sullivan v. Brown, 544 F.2d 279 (6th Cir.

1976) ..................................... 26
Sullivan v. Com. Pa. Dept, of Labor, 663

F .2d 443 (3d Cir. 1981) .....................  17,20,22,24,31
Swain v. Secretary of Navy, 50 U.S.L.W. 2439

(1982) ......................................  32
Thomas v. Honeybrook Mines, Inc., 428 F .2d 

981 (3rd Cir. 1970), cert, denied, 401 U.S.
911 (197 ) .................................  20,22

i n



Constitutional & Statutory 
Provisions

Page

3,5

5 U.S.C. § 504(Equal Access to Justice Act 21

42 U.S. C. § 1981 ........ .................... 5,10,11,14

42 U.S.C. § 1983 ............................. 5,10,14,15,16

42 U.S.C. § 1985 ............................. 5,10

42 U.S.C. § 1986 ............................. 5,10

42 U.S.C. § 1988 ............................. Passim

42 U.S.C. § 2000d ............ ........ ....... 5,10,13

42 U.S.C. § 2000d-3(b) ....................... 13

42 U.S.C. § 2000e-5(k), § 706(k) of Title 
VII of the Civil Rights Act of 1964 ....... 12,13,16,17,18,30,31

10
10,21
2,3

Other Authorities
H.R. Rep. No. 94-1558, 94th Cong., 2d Sess. 13,19,26

H.R. Rep. No. 96-1418, 96th Cong., 2d Sess.
11 (1980) ................................... 21

H. Conf. Rep. No. 96-1434, 96th Cong., 2d 21

S. Rep. No. 94-1011, 94th Cong., 2d Sess. 20,22,25

E. Larson, Federal Court Awards of Attorney’s 30

- iv -



UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT 

No. 82-5154/5158

LEONARD WEBB,
Plaintiff-Appellant-Cross-Appellee,

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

Defendants-Appellees-Cross-Appellants.

On Appeal From The United States District Court 
For The Western District Of Tennessee

BRIEF FOR PLAINTIFF-APPELLANT 
CROSS-APPELLEE

Question Presented

Whether the district court erred in declining to award 
attorney's fees in a civil rights action for prevailing 
plaintiff's legal representation in administrative proceed­
ings solely on the ground that exhaustion of administrative 
proceedings was not required by the relevant civil rights 
acts, although 42 U.S.C. § 1988 provides for an award of 
fees and costs "[i]n any action or proceeding to enforce" a 
provision of the civil rights acts.



Statement

The merits of this civil rights action challenging 
the dismissal of a black teacher were settled prior to 
trial by a consent order of dismissal awarding damages 
and equitable relief to the teacher. This appeal is taken 
from findings of fact and conclusions of law and order 
allowing attorney's fees and costs which permitted plain­
tiff an award for the court action, but denied plaintiff 
any fees or costs for administrative proceedings.

Administrative Proceedings
On March 25, 1974., plaintiff Leonard Webb, a tenured 

black teacher, was notified of his suspension by the Super­
intendent and County Board of Education of Dyer County, 
Tennessee (hereinafter "board") pending investigation and 
disposition by the board of "charges relating to your past 
record as a teacher." Two weeks later, Webb was notified 
of his dismissal by the board for "unprofessional conduct 
and subordination" pursuant to Tenn. Code Ann. 49-1412.
(R. 2, Complaint at p. 11, R. 3, Exhibits A and B to Amend­
ment to Complaint, R. 87, Affidavit of Dwight L. Hedge 
appended to Response and Memorandum in Opposition, A. ig> 31 t 

32, 76.) Webb was advised that the dismissal was based 
on the board's "review[ of] the written criticism of 
parents and school administrators regarding your teaching 
experience at Newbern Elementary School." Id. However, Webb

- 2 -

;>iae5s*.>r v .z -  - '.4  -:v-



was not given the prior written notice and copy of charges 
warranting dismissal nor afforded the opportunity for a
hearing before the board prior to dismissal required by

1/
state law. Term. Code Ann. 4.9-14-15, 14-16.

Webb retained Avon N. Williams, Jr., Esq. of Nashville, 
Tennessee, as counsel, and requested a hearing before the 
board. (R. 87, Affidavit of Dwight L. Hedge, A. 77.) The 
board also was represented by counsel. Testimony was heard 
by the board in June 1974-, later in 1974-, November 1977 and 
April 1978. Id. At the hearing, Webb alleged that his dis­
missal violated state law, and the Fourteenth Amendment and

1/federal civil rights laws. (R. 73, Tr. at 9, 96.) With

1/ See, Hatton v. County Board of Education of Maury 
County, Tennessee, 472 F .2d 457, 459 (6th Cir. 1970); Davis 
v. Barr, 373 F. Supp. 740, 744-46 (E.D. Term. 1973).
2/ The transcript of the hearing before the board (R. 73, 
Transcript attached to Affidavit of Avon N. Williams) reveals 
the following:

The Dyer County public schools remained racially segre­
gated until the late '60s. (_Id. at 11) All the principals are 
white. (Id. at 205) Webb was hired in 1962 and taught in 
segregated black schools without incident until 1969. (Id. 
at 10-12, 180, 190, 210.) In 1969, Webb was the first black 
teacher assigned to Finley Elementary, a 90% white school.
(Id. at 99, 100) At the end of the 1972-73 school year,
Webb was reprimanded for paddling a white girl and ordered 
not to paddle any students or to send them to the principal's 
office. (_Id. at 16) Webb thereafter had difficulty maintain­
ing discipline in his classes. (Id. at 20)

In the 1973-74 school year, Webb transferred to Newbern 
Elementary as a "Practical Arts" teacher. (_Id. at 20) He 
was the only black male teacher and one of four black teachers 
out of 28 (id. at 190). The Practical Arts course, however, 
lacked proper equipment or supplies (id. at 22, 79, 83), had

- 3 -



respect to the purposes of the hearing, counsel expressly- 
stated. that: '

2/ Continued
too many students (id. at 21), and Webb was not paid a 
promised supplement (id. at 22-23). White students and 
parents complained about Webb's disciplinary measures.
(Id. at 78, 79, 152)

It was established that paddling was an accepted disci­
plinary sanction in the Dyer County schools and used by most of 
the teachers (id. 72, 99, 102, 113, 118, 125); teachers and 
administrators believed paddling was necessary to maintain 
discipline (î d. at 100, 103); there were no written guidelines 
for use of paddling (id. at 122, 126); Webb, in the opinion of 
numerous teachers, administrators and students who testified, 
did not paddle students too harshly (id. at 72-73, 78, 81, 86, 
113, 119, 124., 126); Webb was the only teacher to sometimes use 
physical exercise as a more enlightened alternative to paddling 
(id. at 106-107, 109-111); no other teacher had ever been repri­
manded for paddling students or ordered not to paddle until 
Webb (id. at 74-, 150, 151); Webb disciplined both black and 
white students in the same way (id. at 78, 83); some white stu­
dents did not respect Webb as a teacher (id. at 78, 79); and 
the administration made no efforts to assist Webb or black 
teachers in maintaining discipline with white students in the 
wake of integration (id. at 161-62, 207, see 66, 159, 176-77).
No other teacher had ever been dismissed by the board for pad­
dling. (id. at 86, 113, 123, 126).

Webb was given no support by administrators when white 
parents complained to them about discipline (id. at 30, 162). 
Webb was accused of improperly restraining a student who was 
later suspended by the board for the incident. (_Id. at 224-25) 
Newbern's principal assisted a white student whom Webb ordered 
to stand in the hall without consulting Webb beforehand. (Id. 
at 19) The Newbern principal admitted that the Practical Arts 
course that Webb was assigned to teach lacked adequate equip­
ment, supplies or structure for students, and that he did not 
know how Webb could teach the class under those conditions.
(Id. at 216-22)

Objections were made to, inter alia, inadequate notice, 
failure to provide a prior hearing, errors in assigning burden 
of proof, bias, and failure to subpoena witnesses and Webb's 
dismissal pending completion of hearing. (Id. at 1-9, 60, 88-90, 
92-97, 136.)

4



We want the Board to make an honest 
decision because we intend to pursue 
[the dismissal]. We would prefer to 
have it stopped here. If you all can 
find it within your hearts and con­
sciences and your reasonable intel­
ligence [to] review ... objective[ly] 
the evidence in this case to stop it 
here. We would prefer that.

(Id. at 88) It was not until August 15, 1978, that the
board upheld their original action in dismissing Webb. Id.

Judicial Proceedings
On August 13, 1979, Webb filed this action for damages 

and equitable relief against the board, its members, and 
several administrators, to enforce rights guaranteed by the 
Fourteenth Amendment, and 4-2 U.S.C. §§ 1981, 1983, 1985,
1986, 1988 and 2000d (R. 2, Complaint, R. 3, Amendment to 
Complaint, A. 8, 28). Pendent jurisdiction over state law ques­
tions was invoked. (R. 2, Complaint, at p. 2, A. 10.)L The 
complaint alleged that the board maintained employment poli­
cies and practices which discriminated against black faculty, 
including Webb, on the basis of their race. The complaint 
stated that: The board had operated a racially segregated
school system through 1967. Only in 1967 had the board begun 
to assign black teachers to formerly all white schools. Black 
teachers were allegedly discriminated against in a variety 
of ways including discharge. Both the substantive and proce­
dural aspects of Webb's dismissal were alleged to be illegal 
and discriminatory. Id. Responsive pleadings were filed, 
including the board's answer and a motion to dismiss and/or for

5



summary judgment of several administrators (R. 46, 50,
A. 33, 38). Defendants also filed discovery requests.
(See docket sheet at pp. 4-5, A. 4-5.) Plaintiff Webb
filed, inter alia, the transcript of the administrative 
proceedings in opposition to the motion to dismiss and/or 
for summary judgment. (R. 73, Affidavit of Avon N.
Williams, Jr., A. 41.) The motion to dismiss was carried 
with the case, and the case originally set for trial in 
July 1981 and then reset for November 1981.

On October 14, 1981, the court below approved a consent 
order of dismissal that:

This cause came on to be heard upon state­
ment of counsel for the parties, as evidenced 
by their signatures to this Order, that all 
matters in controversy herein have been com­
promised and settled by the payment to plain­
tiff of the sum of $15,400.00 as damages at 
law for the redress of his claims under 42 
U.S.C. 1981 and by an award of equitable 
relief as set out below, with all matters 
relating to attorneh's fees of plaintiff being 
expressly reserved.

IT IS, THEREFORE, BY CONSENT, ORDERED,
ADJUDGED AND DECREED as follows that:

1. Except as provided below, plaintiff's 
action be, and the same is hereby, dismissed 
with prejudice.

2. Defendant, County Board of Education 
of Dyer County, Tennessee, will be treated as 
having reinstated plaintiff, as of April 10,
1974, as a teacher in good standing in the Dyer 
County, Tennessee School System, and plaintiff 
will be treated as having immediately there­
after resigned from said teaching position 
without any derogatory personnel actions, marks 
or implications upon or against his record as a 
teacher or employee of said School System; and 
the only reference said defendant, Board of Edu­
cation of Dyer County, Tennessee, will furnish 
to others, on request, will be limited to inclu­
sive dates of service and positions held by

6



plaintiff with said Board of Education.
3. All matters relating to fees of counsel 

for plaintiff are expressly reserved for reso­
lution by agreement of the parties, or, in the 
absence of agreement, by the Court.

(R. 79, A. 44 )
Counsel having failed to resolve the matter, plaintiff 

Webb filed a motion for award of counsel fees and expenses 
November 13, 1981 (R. 80, A. 46). An affidavit of Avon N. 
Williams, Jr., describing services by date, nature of ser­
vice and hours, an affidavit of Mr. Williams of expenses, 
and a supporting memorandum were also filed (R. 81, 82, 83,
A. 4-7 , 57, 59 ). Plaintiff sought fees for 14-1.1 hours
for legal representation from April 1974 to September 1981 
at Mr. Williams' current rate of $120 per hour and a 25% 
increment for a total of $21,165.00 and expenses of $561.61. 
The board submitted a memorandum and affidavits in opposi­
tion to the motion. (R. 87, 88, A. 65 , 82 •) The board > 
stated that no more than $5,000 in fees should be awarded. Id. 
However, all three of the Memphis attorneys who submitted 
affidavits on the board's behalf stated that it was rea­
sonable for plaintiff's counsel to be compensated for legal 
work in administrative proceedings, albeit at various rates 
less than those requested. (R. 87, Affidavit of Russell X. 
Thompson, Affidavit of Henry L. Klein, R. 88, Affidavit 
of Allen S . Blair, A. 78, 80, 84.)

An evidentiary hearing was held December 18, 1981 
(Docket sheet at p. 6, A. 6). At the hearing, plaintiff's

7



expert witnesses, Louis R. Lucas, Esq., and William E. 
Caldwell, Esq., both of Memphis, Tennessee, presented uncon­
tradicted testimony that time spent in the administrative 
proceedings should be compensated for several reasons. (Id. 
at 11, 13-17, 19-21 (Lucas), 40-41 (Caldwell), A. 109, 110- 
14, 116-18, 129-30.) First, an administrative proceeding is 
justified as part of the litigation-related discovery or 
prefiling investigation in which facts are discovered, 
witnesses identified, and positions are taken by the par­
ties that are useful in laying the factual basis for the 
complaint and ultimately the trial. In the instant case, 
for instance, plaintiff was able to avoid formal discovery 
efforts as a result of the administrative proceedings.
Second, counsel for the parties are able to assess the 
strength of their cases on the basis of an administrative 
record in order to weigh the risk of continued litigation 
against settlement. That, in Mr. Lucas' opinion, occurred 
in the instant case. Third, resolution of controversies 
in the least expensive forum should be encouraged. If 
fees are not awarded for administrative proceedings, then 
the filing of lawsuits is encouraged. Fourth, administra­
tive proceedings may result in relief short of litigation, 
and it would be irresponsible to risk bringing a lawsuit 
without pursuing prior administrative remedies. Pursuing 
administrative remedies is especially appropriate in

8



teacher discharge cases where there is a long established 
administrative procedure.

The court's findings of fact and conclusions of law 
and order allowing attorney's fees and costs were entered 
February 16, 1982. (R. 91, A. 86.) With respect to 82.8 
hours of legal representation in administrative proceedings, 
the court denied any fees solely on the legal ground that 
the administrative proceedings were not a prerequisite for 
the lawsuit. (R. 91, Findings at pp. 2-5, A. 87-90.) With 
respect to 58.3 hours of legal work for the judicial pro­
ceedings and five hours of work on the fees issue, the
court determined that fees of $9,73k.38 plus expenses of

3/
$739.61 were reasonable and allowable.

3/ 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 
service 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 con­
tingency factor of 25% is reasonable. The charges 
by the Dyer County school officials 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 heari/ig 
was granted. The school board apparently held the 
case under advisement for about four years and then 
reaffirmed its initial decision to terminate plain­
tiff. There certainly was a strong element of con­
tingency in this case. The adjustment factor of 
25% adds 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 plain­
tiff to be reasonable.

(Cont1d )

9



This appeal and the board's cross-appeal were timely
filed (R. 94, 95, 97, A. 94,97,99).

ARGUMENT

The Civil Rights Attorney's Fees Awards Act of 1976,
42 U.S.C. § 1988, as amended, provides that:

In any action or proceeding to enforce a 
provision of sections 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 prevailing party other than 
the United States, a reasonable attorney's 
fees as part of the costs.4/

It is undisputed that § 1988 applies to the instant case, 
which was brought to enforce, inter alia, 42 U.S.C. §§ 1981, 
1983, 1985 and 1986 and Title VI, and that plaintiff Webb

3/ Continued
Plaintiff's counsel is also entitled to compensa­

tion for *time related to litigating the fee issues 
> before this Court. The Court will allow plaintiff's 

counsel five (5) hours across the board or $625.00 
for this time. In addition, plaintiff claims the 
cost 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 reasonable and allowable.

It is therefore by the Court
t

ORDERED that plaintiff be and is hereby awarded 
counsel fees in the total sum of $9,734.38 plus 
expenses in the amount of $739.61.

Id. at pp. 6-7, A. 91-92.
4/ In 1980, Pub. L. 96-481 substituted "Pub. L. 92-318, 
or title VI of the Civil Rights Act of 1964" for "Pub. L. 
92-318, 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 Rev­
enue Code, or title VI of the Civil Rights Act of 1964."

10



is "prevailing party" entitled to "a reasonable attorney's
5/fees." Nor is there any dispute that the legal work per­

formed by plaintiff's counsel in administrative proceedings 
was reasonable and played a useful role in the eventual reso­
lution of the lawsuit. The narrow controversy is whether a 
prevailing party nevertheless should be precluded from 
recovering fees for legal representation, the greater part 
of the representation here, merely because the legal work 
was performed in administrative proceedings.

The board argued and the lower court found that the 
only issue before the court was an abstract technical ques­
tion "whether the plaintiff is entitled to an award of 
counsel fees for those hours pertaining to the administra­
tive proceedings before the Dyer County Board of Education 
where the proceeding was not a prerequisite to the filing 

» of an action under 4-2 U.S.C. § 1981" (R. 91, Findings at17
p. 3, A. 88) (emphasis added), without reference to either 
the terms of the statute, legislative history or statutory 
purpose. That was a fundamental error. As this Court put 
it, § 1988
11 - --——r-----------
5 /  As the lower court stated, "defendants do not deny 
that plaintiff's counsel is entitled to reasonable fees and 
expenses." (R. 91, Findings at p . 2, A. 87.)
6/ In point of fact, the action was filed to enforce 
several other civil rights provisions in addition to § 1981. 
See supra at p. 2.

11



did more than simply enable the lower courts 
once again to award fees; rather than being 
an equitable remedy, flexibly applied rn 
those circumstances which the court considers 
appropriate, it is now a statutory remedy, 
and the courts are obliged to apply the 
standards and guidelines provided by the 
legislature in making an award of fees.
Therefore, a close examination both of the 
statute itself and its legislative history 
is necessary.

Northcross v. Board of Education, 611 F . 2d 624-, 632 (6th Cir.
1979), cert, denied, 4-47 U.S. 911 (1980). The only proper
inquiry then is the statutory construction question whether
attorney's fees may be recovered for legal work performed
in the instant case in administrative proceedings where the
statute broadly provides that fees are allowable "[i]n any
action or proceeding to enforce" enumerated civil rights
provisions. See New York Gaslight Club, Inc, v. Carey, 4-47
U.S. 54.,. 61 (1980). Bartholomew v. Watson, 665 F . 2d 910 ( 9 th Cir . 1982 ) .

I .
The Statutory Language of § 1988 Permits 
Recovery of Attorney's Fees for Legal 
Representation in Administrative Proceedings.

Section 1988 plainly provides that - attorney' s fees are 
permitted "[i]n any action or proceeding to enforce" the 
relevant civil rights provisions. These terms have been 
authoritatively construed by the Supreme Court in a series 
of recent cases. In New York Gaslight Club, Inc, v. Carey, 
supra, 4.4-7 U.S. at 61-63, the Court construed the term "pro­
ceeding" in § 706k of Title VII of the Civil Rights Act of

12



1964., 42 U.S.C. § 2000e-5(k) , the parallel attorney's fees 
provision for Title VII employment discrimination cases, 
and found that "[t]he words of § 706(k) leave little doubt 
that fee awards are authorized for legal work done in 'pro­
ceedings' other than court actions." 447 U.S. at 61. The 
Carey analysis of statutory language is highly relevant 
because § 1988 "is legislation similar in purpose and design 
to Title VII's fee provision." Carey, supra, 447 U.S. at 
70 n. 9 (citing H.R. Rep. No. 94-1558, pp. 5 and 8 n. 16 
(1976)). Thus, "Congress' use of the broadly inclusive 
disjunctive phrase 'action or proceeding' indicates an 
intent to subject the losing party to an award of attorney's 
fees and costs that includes expenses incurred for admin­
istrative proceedings" and "[i]t cannot be assumed that the 
words 'or proceeding' in § 706(k) are merely surplusage."
448 U.S. at 61. This analysis of the same term in a sister 
fees provision in the same title of United States Code obvi­
ously applies here. The term "or proceeding" broadens the 
scope of entitlement to attorney's fees beyond court actions.
If Congress intended to limit recovery of fees under § 1988 
to lawsuits, it could easily have done so by omitting "or 
proceeding" as Congress did with respect to § 204(b) of 
Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000d- 
3(b), another provision in the same title of the Code. Carey, 
supra, 447 U.S. at 61; Bartholomewv. Watson, supra, 665 F .2d at 913.

The lower court, however, concluded that, notwithstanding

13



§ 1988 allowance for recovery of fees in administrative 
proceedings, attorney's fees should not be recoverable 
where exhaustion of the administrative proceedings is not 
a statutory precondition or prerequisite. Clearly, § 1988 
makes no such exception. The plain face of the statute, 
moreover, indicates otherwise. The broad "action or pro­
ceedings" term is used in § 1988, without limitation, to 
refer both to provisions such as Title VI or Title IX where 
administrative proceedings are expressly set forth as part 
of the enforcement scheme, and to provisions such as 
§ 1981 or § 1983, where such proceedings are not expressly 
set forth. Indeed, there is absolutely no support for any 
exhaustion limitation on fees for administrative proceedings 
work because Title VI or Title IX, unlike Title VII, do 
not require administrative exhaustion as a precondition to 
filing a judicial action. Cannon v . University of Chicago,
441 U.S. 677, 706 n. 41 (1979); NAACP v. Medical Center, Inc., 
599 F .2d 1247 (3d Cir. 1979). Therefore, if § 1988 is read 
as the court below read it, no fees for administrative pro­
ceedings would be authorized. That reading would be absurd. 
See Carey, supra.

The term "proceeding" is given equal weight with the 
term "action," indicating that Congress did not intend to 
limit coverage to administrative proceedings which need 
to be exhausted prior to the filing of a lawsuit. If Con­
gress had intended to restrict allowance of fees only to

14



such proceedings, it could easily have done so by refer­
ring only to such subsidiary proceedings. Congress did not 
do so. Indeed, as discussed below, it expressly chose to 
use other terms which broaden rather than narrow the cate­
gory of "proceedings" covered by § 1988.

Thus, section 1988 plainly authorizes a fees award-to 
the prevailing party "[i]n any ... proceeding to enforce" 
civil rights provisions (emphasis added), plainly indicat­
ing that the term proceeding was broad and inclusive. In 
Maine v. Thiboutot, 4-4.8 U.S. 1, 9 (1980), the Court considered 
claim similar to the administration exhaustion limitation 
relied on by the lower court, i .e ., petitioners argued that 
Congress did not intend statutory claims, as opposed to 
constitutional claims, to be covered by § 1988. The Court 
resolved the question by reference to the statute:

[T]he plain language provides an answer.
The statute states that fees are available 
in any § 1983 action. Since we hold that 
this statutory action is properly brought 
under § 1983, and since § 1988 makes no 
exception for statutory § 1983 actions,
§ 1988 plainly applies to this suit.

448 U.S. at 9 (original emphasis). Just as § 1988 makes no
exception for certain § 1983 actions it makes no exception
for certain administrative proceedings. Just as "§ 1988
applies to all types of § 1983 actions," Maher v. Gagne,
448 U.S. 122, 128 (1980), it applies as well to all types
of administrative proceedings.

The court below, furthermore, did not merely ignore



'&S4&+K***:

the plain terms of § 1988. It erroneously relied on a
term not present in the statute by assuming that "pro—»
ceedings under this title" appears in § 1988 as well as 
§ 706(k) . (R. 91, Findings at 4., A. 89.) However, unlike
Title VII's provision which restricts allowance of fees to 
"proceedings under this title" (emphasis added), § 1988 
liberally authorizes attorney's fees "[i]n any ... pro­
ceeding to enforce" the civil rights provisions (emphasis added) . 
Proceedings § 1988 refers to need not fall "under" the 
civil rights provisions set forth in § 1988 in the sense 
of being expressly specified as part of the enforcement 
scheme as are Title VII administrative proceedings. Rather, 
the use of the more inclusive term "to enforce" indicates 
that fees are authorized for proceedings which in effect 
implement or achieve the "substantive rights" or "remed[ies]" 
set forth in the enumerated civil rights provisions. Maher 
v. Gagne, supra, 448 U.S. at 129 n. 11 (construing "to 
enforce [§ 1983]"). Section 1988 is result-oriented and 
conditions fees recovery on enforcement alone rather than 
resort to any specific procedure. Unlike the Title VII 
statute, the civil rights provisions for which fees are 
authorized by § 1988 do not have specific enforcement 
mechanisms. Federal claims under 42 U.S.C. § 1983, for 
instance, may be enforced through unspecified state proce­
dures. Martinez v. California, 444 U.S. 277, 283 n. 7 
(1979). Thus, the legislative history specifically refers

16



etr VI 9* '&!****• rxr*?***mp:&&*

to "[a] party seeking to enforce the rights protected by 
the statutes covered by [§ 1988]," "the party or parties 
seeking to enforce such rights" and "parties may be con­
sidered to have prevailed when they vindicate rights 
through a consent judgment or without formerly obtaining 
relief. S. Rep. No. 94-1011, 94th Cong., 2d Sess. 4-5 
(1976) (emphases added).

The lower court's reliance on any restriction imposed 
by the "under this title" language of § 706(k), in any event, 
is erroneous as a matter of Title VII law. Courts of 
appeals have construed § 706(k) as not being limited to 
administrative provisions expressly authorized by Title 
VII. Chrapliway v. Uniroyal, Inc., 670 F .2d 760, 765-67 
(7th Cir. 1982) (§ 706(k) permits fees for legal work per­
formed by counsel in Title VII cases to persuade federal 
government to debar defendant from its federal contracts 
in separate proceeding because "the plaintiffs' pursuit of 
debarment was a service which contributed to the ultimate 
termination of the Title VII action, and in that sense was 
within the Title VII action," 670 F.2d at 767); Sullivan v . 
Com. Pa. Dept, of Labor, 663 F.2d 443 (3d Cir. 1981) (§ 706 
(k) authorizes fees for prevailing in arbitration proceed­
ing in connection with Title VII judicial and administrative 
proceedings where "by so prevailing, [plaintiff] may be 
deemed to have prevailed in her Title VII lawsuit because 
of its impact on, and material contribution to, the ultimate

17



" r u a *  >V;'.+ * k - .  » a « a « r i

relief she obtained," 663 F.2d at 4-51); Kulkarni v. Alexander, 
662 F.2d 758 (D.C. Cir. 1978) (although § 706(k) authorizes 
fees "only if that litigation brought under Title VII (as 
is the present action) the literal terms of that clause 
do not preclude consideration in setting the award of ser­
vices rendered in so closely and integrally connected a 
prior non-Title VII case as the first suit there" and prior 
administrative proceedings. 662 F.2d at 766).

II.
Legislative History Supports Recovery of 
Attorney's Fees for Legal Representation 
in Administrative Proceedings.

The lower court failed to conduct any review of § 1988 's 
legislative history. This Court, however, has observed that 
§ 1988 "is a rare statute with sufficient legislative his­
tory to provide '[a] clear-cut indication that Congress 
considered [many of] the exact problem[s] with which we are 
now confronted and provided an express indication as to how 
the general language of the 1976 statute was intended to be 
applied..Under such circumstance (relatively rare in this 
court's experience), we, of course, follow Congressional 
intent.'" Northcross, supra, 611 F .2d at 633, quoting Seals 
v. Quarterly County Court, 562 F.2d 390, 394- (6th Cir. 1977).

While § 1988 legislative history does not separately 
discuss entitlement to fees in administrative proceedings, 
it does refer to that entitlement in the context of authoriz­
ing fees when the "prevailing party," in practice, obtains an

18



IT. *><!»*« -.rant

informal resolution even if that resolution results from a 
separate or collateral proceeding, a broader category which 
by definition includes administrative proceedings. Thus, 
the House Report states that:

The phrase "prevailing party" is not 
intended to be limited to the victor only 
after entry of a final judgment following a 
full trial on the merits. It would also 
include a litigant who succeeds even if the 
case is concluded prior to a full evidentiary 
hearing before a judge or jury. If the liti­
gation terminates by consent decree, for 
example, it would be proper to award counsel 
fees. ... Parker v. Matthews, 4-11 F. Supp.
1059 (D. D.C. 1976). ... A "prevailing" 
party should not be penalized for seeking 
an out-of-court settlement, thus helping 
to lessen docket congestion.

H.R. Rep. No. 94-1558, 94-th Cong., 2d Sess. 7 (1976). Parker, 
which was subsequently affirmed sub nom.'Parker v. Califano, 
561 F.2d 320 (D.C. Cir. 1977), was a Title VII case somewhat 
similar to the instant case. There plaintiff filed a lawsuit 
after unsuccessful administrative proceedings. However, after 
the filing of the court action, the lawsuit was settled after 
administrative decision favorable to the plaintiff. The 
court found that plaintiff was prevailing party by virtue of 
the settlement and that fees should include time spent in 
administrative proceedings. 411 F. Supp. at 1065-66.

Similarly, Maher v. Gagne, supra, 448 U.S. at 129, points 
out, "the Senate Report expressly stated that 'for purposes 
of the award of counsel fees, parties may be considered to 
have prevailed when they vindicate rights through a consent 
judgment or without formally obtaining relief,'" quoting,

19



S. Rep. No. 94-1101, supra at 5 (omitting citations). Among
the cases expressly cited by the Senate Report was Thomas v . 
Honeybrook Mines, Inc., 428 F .2d 981 (3d Cir. 1970), cert ♦ 
denied, 401 U.S. 911 (1971), in which fees from a common 
fund, resulting from trustees' delinquency lawsuits against 
delinquent mine operators, were allowed to a coal miners' 
pension committee which sued the trustees in a wholly sep­
arate lawsuit and forced the trustees to bring the fund- 
producing delinquency lawsuits. In justifying the award,
Thomas stated that the attorney's fees rule "should not be 
applied in a narrow technical manner." 428 F .2d at 985.
This Court in Northcross, supra, 611 F.2d at 636, expressly 
permitted recovery in circumstances similar to those in the 
Thomas case on the basis of the Senate Report's expression of 
Congressional will that § 1988 be interpreted "in a practical, 
not formal, manner."

The district court also cut certain hours 
from the plaintiffs' request against the City 
of Memphis, primarily those hours spent on the 
suit which had been filed against the city but 
which was dismissed when the City agreed to 
supply adequate gasoline to the School Board.
In spite of the lack of a formal order, the 
plaintiffs still obtained the relief which 
they sought, and are entitled to compensation.
As noted in the Senate Report, prompt and rea­
sonable settlement is to be encouraged, and 
thus the notion of "prevailing party" is to be 
interpreted in a practical, not formal, manner.

Id. See Chrapliway, supra; Sullivan v. Com. Pa. Dept, of
Labor, supra; Kulkarni, supra. In neither Thomas nor North-
cross was the judicial character of the independent proceedings,

20



for which fees were allowed, of any significance.
Moreover, in 1980 Congress enacted the Equal Access to 

Justice Act, Pub. L. 96-481, 5 U.S.C. § 504, allowing "pre­
vailing parties" fees in certain federal agency proceedings. 
The legislative history indicates that:

The phrase "prevailing party" is not to 
be limited to a victor only after entry 
of a final judgment following a full 
trial on the merits; its interpretation 
is to be consistent with the law that 
has developed under existing statutes.

A party may be deemed prevailing if 
the party obtains a favorable settlement 
of his case, Foster v. Boorstin, 561 
F .2d 340 (D.C. Cir. 1977) .

H. Conf. Rep. No. 96-1434, 96th Cong., 2d Sess. 21 (1980);
compare H.R.' Rep. No. 96-1418, 96th Cong., 2d Sess. 11

7 /(1980).- Foster, like Parker v. Matthews, supra, was a 
Title VII case in which a lawsuit was filed after unsuccess­
ful administrative proceedings and then settled after an 
administrative proceeding in plaintiff's favor. As in 
Parker, the court ruled that the attorney's fees award 
should include compensation for services rendered at the 
administrative level. 561 F .2d at 344.

Thus, § 1988 legislative history, as buttressed by the 
subsequent Equal Access to Justice Act legislative history, 
evidences Congressional intent to allow a prevailing party 
recovery of attorney's fees for administrative proceedings

7/ As noted above at p . 10 n. 4, supra, Pub. L. 96-481 
amended § 1988.

21



as well as other proceedings collateral to the lawsuit which 
substantially contribute to informal resolution of the law­
suit .

Section 1988 legislative history, in addition, states 
that "the amount of fees awarded under [§ 1988] be governed 
by the same standards which prevail in other types of 
equally complex Federal litigation, such as antitrust 
cases," S. Rep. No. 94.-1011, supra at 6, quoted in North- 
cross, supra, 611 F.2d at 633. The rule in such litigation, 
see Thomas v. Honeybrook Mines, Inc., supra, 428 F.2d 985, 
and cases cited therein, and Sullivan v. Com. Pa. Dept, of 
Labor, supra, 663 F.2d at 447-54, and cases cited therein, 
is that fees are recoverable for legal representation in 
collateral proceedings which, as a practical matter, lead 
to informal resolution of the lawsuit in which fees are 
being sought. This legislative history, thus, suggests 
that courts, in construing § 1988 in this respect, should 
look to substance and not form just as they would in 
authorizing awards of attorney's fees in other areas of the 
law. See Brown v. Bathke, 588 F.2d 634, 637 (8th Cir. 1978).

Moreover, legislative history "comments that in accord­
ance with the law established under the 1964 Civil Rights 
Act, the prevailing party should 'ordinarily recover an attor­
ney's fees under special circumstances would render such an 
award unjust.'" Northcross, supra, 611 F .2d at 633; 
Bartholomew v. Watson, supra, 665 F.2d at 913:

22



It is intended- that standards for 
awarding fees be generally the same as 
under the fee provisions of the 1964.
Civil Rights Act. A party seeking to 
enforce the rights protected by the 
statutes covered by [§ 1988], if success­
ful, "should ordinarily recover an 
attorney's fee unless special circum­
stances would render such an award 
unjust." Newman v. Piggie Park Enter­
prises, Inc., 390 U.S. 400, 402 (1968).

S. Rep. No. 94-1011, supra at 4. That Congressional intent
obviously would best be enforced by authorizing fees for
administrative proceedings pursuant to § 1988 in light of
New York Gaslight Club, Inc, v. Carey, supra, and other
Title VII cases. Bartholomew v. Watson, supra, 665 F .2d at
913. Prior to Carey, the lower federal courts virtually
without exception allowed fees to plaintiffs who prevailed
through administrative proceedings, whether plaintiffs
participated in administrative proceedings after the lawsuit

8/
was filed, obtained partial relief in administrative pro-

9/ '
ceedings and then won further relief in a lawsuit, or
obtained relief in administrative proceedings and then

10/
sought court-awarded fees. Nor have courts limited the 
entitlement to fees under the Title VII provision to Title

8 /  See, e.g., Foster v. Boorstin, supra; Parker v .
Matthews, supra.
9/ See, e.g., Fischer v. Adams, 572 F.2d 406 (1st Cir.
1978).
10/ See, e.g., Carey, supra; Booker v. Brown, 619 F.2d 57 
(10th Cir. 1980); Richards v. Reed, 611 F .2d 545 (5th Cir.
1980); Johnson v. United States, 554 F.2d 632 (4th Cir. 1977) 
Smith v. Califano, 446 F. Supp. 530 (D. D.C. 1978).

23



VII administrative proceedings. See Chrapliway v. Uniroyal, 
Inc., supra, 670 F.2d at 765-67 (efforts to persuade federal 
government to bring proceeding to debar employer from federal 
contracts); Sullivan v. Com, of Pa. Dept, of Labor, supra,
663 F.2d at 4-4.7-52 (arbitration proceeding); Kulkarni v . 
Alexander, supra, 662 F .2d at 765-66 (non-Title VII case). 
Certainly, no special circumstances render recovery unjust.

Last, nothing in the legislative history supports, or 
even hints at, any limitation of § 1988's authorization of 
fees to administrative proceedings which must be exhausted 
prior to suit. Such an intent is wholly absent.

In sum, all relevant legislative history evidences 
Congressional intent to enact an attorney's fees provision 
that should be implemented in a liberal and practical 
fashion, including the broad authorization of fees for 
administrative proceedings, to encourage vigorous enforcement 
of civil rights provisions. Legislative history, therefore, 
is entirely consistent with the broad plain terms of the 
statute itself.

III.
Permitting Recovery of Attorney's Fees for 
Legal Representation in Administrative Pro­
ceedings Fulfills the Purposes of the Statute.

Congress stated that the purpose of § 1988 is to facili­
tate enforcement of the civil rights laws.

The purpose and effect of [§ 1988] are 
simple— it is designed to allow courts to pro­
vide the familiar remedy of reasonable counsel

24



fees to prevailing parties in suits to 
enforce the civil rights acts which 
Congress has passed since 1866. ... All 
of these civil rights laws depend heavily 
upon private enforcement, and fee awards 
have proved an essential remedy if pri­
vate citizens are to have a meaningful 
opportunity to vindicate the important 
Congressional policies which these laws 
contain.

S. Rep. No. 94-1011, supra at p. 2. "Congress expressly 
commands the courts to use the broadest and most effective 
remedies available to them to achieve the goals of the 
civil rights laws. ... The goal to be achieved... is to 
make an award of fees which is 'adequate to attract compe­
tent counsel, but which do not produce windfalls to attorneys.'" 
Northcross, supra, 611 F .2d at 633, citing S. Rep. No. 94-1011, 
supra.

Permitting plaintiff Webb attorney's fees for administra­
tive representation in the instant case facilitates civil 
rights enforcement. An administrative proceeding often pro­
vides a more expeditious, less costly and less formal remedy 
than a court action. See supra at pp. 8-9 (expert testimony).
A rule which limits fees for administrative representation 
obviously runs contrary to the thrust of § 1988 to encourage 
enforcement by forcing civil rights complainants to pass up 
legitimate opportunities for informal resolution through 
administrative remedies. Moreover, the administrative proce­
dures established by the Tennessee teacher tenure law, which 
plaintiff Webb invoked, were characterized by this Court as

25



in form "comprehensive" and providing "procedural due pro­
cess for tenured teachers." See, e .g ., Sullivan v. Brown,
54-4. F .2d 279, 284. (6th Cir. 1976) (admonishing teacher to
avail herself of state remedies and not "to make a federal
case out of this litigation"). While plaintiff Webb did
not prevail in the administrative proceedings, he might
have been remiss in passing up the opportunity for informal
resolution. As the court below found, it was appropriate
to invoke tenure law provisions and the Dyer County Board
of Education apparently gave Webb's complaint serious con- 

11/sideration. Certainly, Webb "should not be penalized for 
seeking an out-of-court settlement, thus helping to lessen 
[federal court] docket congestion." H.R. Rep. No. 94.-1558, 
supra at 7.

Moreover, uncontradicted testimony establishes that 
the record of administrative proceedings played a role in 
the eventual settlement of the lawsuit. 'Thus, all three of 
the board's experts agreed that it was reasonable and appro­
priate to compensate plaintiff Webb's counsel for administrative

11/ The court found that:
The charges by the Dyer County school officials 
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 reaf­
firmed its initial decision to terminate plaintiff.

(R. 91, Findings at p . 6, A. 90.)

26



representation. See supra at p. 7. Plaintiff Webb pre­
sented undisputed evidence that the administrative proceed­
ing was essentially discovery or prefiling investigation 
and provided the basis to define the settlement posture of 
the parties. See supra at pp. 8-9. Although Webb did not 
prevail before the board, the administrative record made 
clear to defendant board that plaintiff Webb had a substan­
tial case and that the board might not wish to risk litiga­
tion. See supra at pp. 3-k, n. 2 (summary of administrative 
record). Cf., Harkless v. Sweeny Independent School Dis­
trict, 608 F .2d 59k (5th Cir. 1979). Certainly, if, instead 
of pursuing his administrative remedies, plaintiff Webb had 
filed a federal action and compiled the same record, no 
question would arise as to entitlement for fees. Enforce­
ment of the civil rights laws clearly would be enhanced 
where, as here, plaintiff uses administrative mechanisms 
that benefit his federal court case. Indeed, the Supreme 
Court has noted that:

Prior administrative findings made with 
respect to an employment discrimination claim 
may, of course, be admitted as evidence at a 
... trial de novo. See Fed. Rule Evid. 803 
(8 ) (c ). Cf. Alexander v. Gardner-Denver Co., 
kl5 U.S. 36, 60 n. 21. Moreover, it can be 
expected that, in light of the prior admin­
istrative proceedings, many potential issues 
can be eliminated by stipulation or in the 
course of pretrial proceedings in the District 
Court.

Chandler v. Roudebush, k25 U.S. 8k0, 853 n. 39 (1976). Where, 
as here, the only factual basis for a judicial settlement is

27



the administrative record, the case is even more compelling 
that the denial of fees inhibits enforcement. See, e.g., 
Parker, supra; Foster v. Boorstin, supra.

The Supreme Court's reliance on a similar enforcement
purpose in its analysis of § 706(k) authorization for fees
in state administrative proceedings in New York Gaslight
Club, Inc, v. Carey, supra, is instructive:

Countering a contention that only federal 
and not state "proceedings" were included 
within the protection of section 706(k), 
the Court stressed the purpose of section 
706(k), the humanitarian and remedial poli­
cies of Title VII, and the statute's 
structure of cooperation between state and 
federal enforcement authorities. 4-4-7 U.S. 
at 61, 100 S.Ct. at 2029, 64- L.Ed.2d at 
733. The Supreme Court stated that failure 
to award fees for mandatory state proceed­
ings would inhibit the enforcement of a 
meritorious discrimination claim. Id. 4-4-7 
U.S. at 63, 100 S.Ct. at 2030, 64 L.Ed.2d 
at 734.

The same factors which support ^n award 
of fees for related s£ate proceedings under 
section 706(k) militates for an award for 
timely related state court actions under 
section 1988; 42 U.S.C. § 1983 has the same 
broad humanitarian and remedial aspect as 
42 U.S.C. § 2000e et seq., and the purpose 
of the fee award in both civil rights actions 
is to aid in the enforcement of those rights.
The Senate Report on section 1983 admonishes 
the courts to "use the broadest and most 
effective remedies available to achieve the 
goals of our civil rights laws." S.Rep. No. 
94-1011, 94th Cong., 2d Sess. 3, reprinted 
in [1976] U.S. Code Cong. & Ad. News 5908,
5910-11. It further declares that a pre­
vailing party "'should ordinarily recover 
an attorney's fees unless special circum­
stances would render such an award unjust.'"
Id. at 5912 (quoting Newman v. Piggie Park 
Enterprises, Inc., 390 U.S. 400, 402, 88 
S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968)).

28



rftt  :T .v>t w r i - r n n - r i ~ - ,'n r * r - '— !>------------

This circuit has stated: "Congress' purpose
in authorizing fee awards was to encourage 
compliance with and enforcement of the civil 
rights laws. The Fees Awards Act must be 
liberally construed to achieve these ends."
Dennis v. Chang, 611 F .2d 1302, 1306 (9th 
Cir. 1980).

Bartholomew v. Watson, supra, 665 F.2d at 913. (While 
Bartholomew concerned authorization of fees for state 
court proceedings, Carey, supra, 4.-47 U.S. at 56-58, 68- 
70, itself concerned independent state administrative pro­
ceedings to which Title VII defers.)

Moreover, as discussed above, supra at pp. 18-22,
§ 1988 favors informal resolution of civil rights disputes, 
and fees are expressly authorized for all kinds of proceed­
ings which result in a successful conclusion to the litiga­
tion short of formal judicial judgment. See, e .g ., Maher 
v . Gagne, supra, 448 U.S. at 129. Permitting awards of 
attorney's fees for all settlements but for some administra- 
tive proceedings is anomalous and surely does not enforce 
the purpose of § 1988 to foster informal resolution. Admin­
istrative proceedings are a ready mechanism for fostering 
informal resolution of disputes. That is their very rationale. 
In the instant case, for instance, although the administra­
tive proceedings did not themselves result in a satisfactory 
disposition, the administrative record helped advance the 
eventual court-approved settlement, saving the parties fur­
ther time and expense, and the public the unnecessary diver­
sion of judicial resources. See supra at pp. 26.-28. Moreoyer,

29



there is no valid or meaningful distinction between admin­
istrative proceedings which are required to be exhausted 
and administrative proceedings which need not be exhausted 
for purposes of fashioning informal resolution. As a 
recent learned treatise on attorney's fees persuasively argues:

In view of the emphasis in the Fees Act 
on voluntary resolution of legal disputes, 
on awarding fees to plaintiffs who prevail 
through settlements, and on awarding fees 
to plaintiffs who act as catalysts, the 
fact of the matter is that in awarding fees 
there is no logical or legal difference 
between plaintiffs who must invoke cer­
tain non-judicial proceedings and those 
plaintiffs who may invoke such proceed­
ings. And, since the word "proceeding" is 
weighted equally with the word "action" in 
the fee shifting statutes, it should not 
be limited only to administrative or judi­
cial exhaustion proceedings.

E. Larson, Federal Court Awards of Attorney's Fees 76 (1981).
The lower court, however, ignored statutory purpose 

as well as the face of the statute and legislative history. 
Instead, the court merely relied on the fact that Carey con­
cerned "services performed in a state administrative proceed­
ing that Title VII requires the claimant to invoke" (R. 91, 
Findings at 3, A. 88) (original emphasis). Certainly, it 
is true that the precise administrative proceedings at issue 
in Carey were required to be exhausted by Title VII. How­
ever, it is equally true that Carey does not hold that fees 
are authorized under § 706(k) only where administrative pro­
ceedings are a statutory prerequisite to a Title VII action. See 
Bartholomew v. Watson, supra, 665 F .2d at 913; Chrapliway

30



v. Uniroyal, Inc., supra, 670 F.2d at 766-67; Sullivan v.
Com, of Pa. Dept, of Labor, supra. Carey is significant in -
the assistance it affords the court in construing § 1988 
and "in indicating that the statute should be liberally 
rather than restrictively interpreted with respect to fees 
for services not performed, in the ordinary sense, in pro­
ceedings before the Title VII court." Chrapliway, supra,
670 F .2d at 767. Carey, of course, is not dispositive since

12/
§ 1988 is broader than § 706(k). Moreover, the analysis 
of Maher v . Gagne, supra, 4-4-8 U.S. at 129, on § 1988' s 
authorization of fees for informal resolution efforts, con­
trary to the district court, obviously is relevant to 
determining whether fees are authorized for administrative
proceedings, one of the means of effecting an informal 

13/resolution.

12/ While § 1988 broadly authorizes fees "[i]n any ... pro­
ceeding to enforce" enumerated civil rights provisions,
§ 706(k) fees are limited to "proceedings under" Title VII. 
See supra at 16-18. Thus, Carey necessarily did not directly 
address the question of the authorization of § 1988 for fees 
in a "proceeding to enforce" civil rights provisions.
13/ The district court relied on two other cases. Blow v . 
Lascapis, 50 U.S.L.W. 2178 (N.D. N.Y. 1981), affirmed, 668 
F .2d 670 (2dT Cir. 1982), as the lower court recognized, is 
not directly in point. (R. 91, Findings at 5, A. 90.) The 
issue in Blow was whether a plaintiff could bring an inde­
pendent action solely for an award of fees in federal court 
after prevailing in state proceedings. In the instant case, 
like Bartholomew v. Watson, supra; Chrapliway, supra;
Sullivan v. Com, of Pa. Dept, of Labor, supra, plaintiff did 
not sue for fees alone. Instead, Webb obtained relief only 
after filing his lawsuit through a court-approved settlement, 
and then sought fees for both court and administrative repre­
sentation because the ancillary administrative proceedings

- 31 -
- ■—<,is. - .v - . -: *T»: TTZJT



CONCLUSION

The judgment and findings of fact and conclusions of 
law and order allowing attorney's fees and costs, to the extent 
attorney's fees in administrative proceedings were denied, 
should be vacated, and the case remanded for a determina­
tion of the amount of attorney's fees to be awarded for

14/
legal representation in administrative proceedings.

13/ Continued
contributed to the judicial settlement. Swain v. Secretary 
of Navy, 50 U.S.L.W. 2439 (1982), as the Court itself recog­
nized, concerned neither § 1988 nor § 706(k), but the fees 
provision of the Age Discrimination in Employment Act. (R.
91, Findings at p. 5, A. 90.)

Authorizing an award of fees to plaintiff Webb would not 
require the Court to decide any of the issues addressed by Blow 
or Swain.
14/ Alternatively, the Court may wish to determine the fees in 
light of the clear legal error, the clear record below and the 
district court's determination of reasonable attorney's fees 
for court work, including the fair market value of counsel's 
services and the reasonableness of a contingency factor of 25%. 
See Monroe v. Bd. of Com'rs of City of Jackson, 581 F.2d 581, 
582 (6th Cir. 1978); Brown v. Culpepper, 561 F .2d 1177 (5th 
Cir. 1977).

RICHARD-H. DINKINS
203 Second Avenue North 
Nashville, Tennessee 37201

JACK GREENBERG
BILL LANN LEE 
DEBORAH FINS

Suite 2030
10 Columbus Circle
New York, New York 10019

Attorneys for Plaintiff-Appellant- 
Cross- Appel lee

32



CERTIFICATE OF SERVICE

Undersigned counsel for plaintiff-appellant-cross- 
appellee certifies that copies of the foregoing Brief for 
Plaintiff-Appellant-Cross-Appellee were served on counsel 
for the parties by prepaid Federal Express guaranteed next

Olen C. Batchelor, Esq.
Holt, Batchelor, Spicer & Ryan 
Suite 2400 - 100 North Main Building 
Memphis, Tennessee 38103
Thomas R. Prewitt, Esq.
Armstrong, Allen, Braden, etc.
Suite 1900 - One Commerce Square 
Memphis, Tennessee 38103
Melvin T. Weakley, Esq.
First Citizens National Bank 
Dyersburg, Tennessee 38024

day delivery, addressed to:

This 9th day of June, 1982.

torney for Plaintiff-Appellant- 
Cross-Appellee

33



* «« r