The Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C.
§1988, provides that "[i]n any action or proceeding to enforce"
certain enumerated civil rights laws, including Title VI of the
Civil Rights Act of 1964, the court may award attorney's fees to
the prevailing party, other than the United States. Title VI
prohibits "any program or activity receiving Federal financial
assistance" from discriminating on the basis of race, color, or
national origin. Respondents filed an administrative complaint with
the United States Department of Transportation, challenging
petitioner North Carolina Department of Transportation's proposed
extension of a largely federally funded major expressway through an
established, predominantly black neighborhood in the city of Durham
as violative of Title VI. Subsequent negotiations resulted, after
five years, in a Final Mitigation Plan executed by petitioners,
respondents, and the city that resolved the controversy. In the
meantime, construction of the highway extension had been enjoined
by the Federal District Court in an unrelated action alleging
violations of certain federal statutes that did not include any
civil rights laws. Respondents in the instant case moved to
intervene in that action and filed a proposed complaint asserting
Title VI violations. The District Court subsequently entered a
consent judgment dissolving the injunction and dismissing the
action and also respondents' Title VI claims on the condition that
petitioners implement the Final Mitigation Plan. The following day,
that Plan was executed. Respondents then filed an action in
District Court for attorney's fees under §1988 for services
performed by their counsel in preparing the administrative
complaint and in negotiating resolution of the dispute. The
District Court granted summary judgment for petitioners and
dismissed the action. The Court of Appeals reversed and remanded,
holding that §1988 covered the actions taken by respondents
subsequent to the filing of the administrative complaint, and that
§1988 allowed a separate action for attorney's fees.
Held:
1. Under §1988's plain language and legislative history, only a
court in an action to enforce one of the civil rights laws listed
in §1988 may
Page 479 U. S. 7
award attorney's fees. Here, the action for attorney's fees is
not, and was never, all action to enforce any of those laws. Pp.
479 U. S.
11-15.
2. Respondents are not entitled to claim attorney's fees by
virtue of their proposed complaint and motion to intervene in the
unrelated action. They did not seek attorney's fees
in that
action, but rather agreed that their Title VI claims in the
proposed complaint would be dismissed. The court that considered
the attorney's fees claim was not adjudicating an action to enforce
Title VI. Pp.
479 U. S.
15-16.
769 F.2d 1025, reversed.
O'CONNOR, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and WHITE, POWELL, STEVENS, and SCALIA, JJ.,
joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL
and BLACKMUN, JJ., joined,
post, p.
479 U. S. 16.
JUSTICE O'CONNOR delivered the opinion of the Court.
This case presents the question whether a court may award
attorney's fees under the Civil Rights Attorney's Fees Awards Act
of 1976, 42 U.S.C. §1988, in a separate federal action not to
enforce any of the civil rights laws listed in §1988, but solely to
recover attorney's fees.
I
In 1957, the Durham City Council advised the North Carolina
State Highway Commission of the need for a major east-west
expressway in the city. North Carolina Department of Transportation
and Federal Highway Administration, Final Environmental Impact
Statement No. FHWA-NC-EIS-72-
Page 479 U. S. 8
13-F, Historical Resume 15 (1982). Over the years, parts of this
highway were completed. In 1976, petitioner North Carolina
Department of Transportation (NCDOT) resumed planning an extension
of the east-west highway. The proposed extension was to run through
the Crest Street community, an established, predominantly black
neighborhood in Durham. The extension would have displaced the
community park and church and many of the residents of the
neighborhood. Respondents, Residents of Crest Street Community and
the Save Our Church and Community Committee, two unincorporated
associations, retained the North Central Legal Assistance Program
to represent them in regard to the proposed highway extension.
Despite respondents' opposition to the extension plans, petitioners
issued a revised draft Environmental Impact Statement that
continued to propose that the extension run through the Crest
Street community. App. 57.
The costs of the proposed extension were to be covered in large
part by federal funds. Title VI of the Civil Rights Act of 1964
prohibits "any program or activity receiving Federal financial
assistance" from discriminating on the basis of race, color, or
national origin, 42 U.S.C. § 2000d, and directs each federal agency
authorized to extend federal financial assistance to issue
regulations to effectuate this mandate, § 2000d-1. Compliance with
§ 2000d may be effected by the termination of federal funds, or by
any other means authorized by law; however,
"no such action shall be taken until the department or agency
concerned has advised the [recipient] of the failure to comply with
the requirement and has determined that compliance cannot be
secured by voluntary means."
§ 2000d-1.
Pursuant to Title VI, the Department of Transportation (DOT)
promulgated regulations requiring recipients of federal funds to
provide assurances of compliance, periodic compliance reports, and
access to information relevant to compliance. 49 CFR § 21.9 (1985).
DOT regulations also state
Page 479 U. S. 9
that
"[a]ny person who believes himself or any specific class of
persons to be subjected to discrimination prohibited by [Title VI
and the DOT regulations] may . . . file with the Secretary a
written complaint."
§ 21.11 (b). The Secretary is required to investigate "whenever
a compliance review, report, complaint, or any other information
indicates a possible failure to comply with this part." § 21.11
(c).
In September, 1978, respondents filed a complaint with DOT. App.
73-89. Respondents challenged petitioners' proposed extension as
violative of Title VI, and requested that NCDOT be prohibited from
planning or constructing the proposed highway through the Crest
Street community. DOT conducted an investigation, met with
representatives of petitioners and of respondents, and obtained
documents from petitioners and respondents. In February, 1980, the
DOT Director of Civil Rights informed NCDOT that, based on DOT's
"preliminary judgments," there was
"reasonable cause to believe that the construction of the
Expressway along the alignment proposed in the Draft [Environmental
Impact Statement] would constitute a
prima facie violation
of Title VI and, in particular, Section 21.5(b)(3) of our
Departmental Title VI regulation."
Id. at 97-99. DOT urged petitioners to attempt to
negotiate a resolution to the controversy. After negotiations
spanning 15 months, in February, 1982, petitioners, respondents,
and the city of Durham reached a preliminary agreement on the
highway design and mitigation of the adverse impact of the project,
but continued to negotiate toward a final plan.
Since 1973, construction of the highway extension had been
enjoined by an order entered in the unrelated proceedings in
ECOS, Inc. v. Brinegar, No. C-352-D-72 (MDNC, Feb. 20,
1973). The plaintiffs in
ECOS were a nonprofit educational
ecological organization, an association of Duke University students
and some of its members, and two Durham residents. The action
alleged violations of the Federal-Aid Highway Act, 23 U.S.C. §§
128, 138, the Department of
Page 479 U. S. 10
Transportation Act of 1966, 49 U.S.C. App. § 1653(f), and the
National Environmental Policy Act of 1969, 42 U.S.C. § 4332. The
order enjoined construction until the defendants, state and federal
transportation officials and a construction company, achieved full
compliance with the above statutes. In August, 1982, NCDOT moved to
dissolve the
ECOS injunction. Respondent Crest Street
Community Council, Inc., and an individual Crest Street resident
moved to intervene in the
ECOS action and filed a proposed
complaint asserting Title VI violations. App. 103-107. While the
motion to intervene was pending, petitioners and respondents
continued negotiations, and reached agreement on a Final Mitigation
Plan. On December 14, 1982, the District Court entered a consent
judgment in the
ECOS action. The consent judgment
dissolved the injunction and dismissed the action. It also
dismissed with prejudice respondents' Title VI claims on the
condition that petitioners implement the Final Mitigation Plan,
although the District Court had never ruled on the Crest Street
Community Council, Inc., motion to intervene. The following day,
the Final Mitigation Plan was formally executed by petitioners,
respondents, and the city of Durham.
The Plan set out comprehensive requirements for NCDOT and the
city of Durham to mitigate the impact of the highway. Under the
Plan, NCDOT agreed to move the proposed highway right-of-way and
modify an interchange so as to preserve the community church and
park. The Plan also required NCDOT and the city of Durham to
develop and provide a new park and community site in the same area.
Respondents' counsel had spent more than 1,200 hours over the
course of five years on this project, preparing the administrative
complaint, assisting the DOT investigation, actively participating
in negotiations to resolve the dispute, and informing DOT on the
progress of those negotiations. The result of this diligent labor
was both substantial and concrete.
Page 479 U. S. 11
Under the Plan, respondents stated that they did not waive any
right to attorney's fees, and the city of Durham and NCDOT denied
liability for attorney's fees. Respondents filed an action in
District Court for attorney's fees under 42 U.S.C. § 1988. On
cross-motions for summary judgment, the District Court granted
petitioners' motion and dismissed the action.
598 F.
Supp. 258 (MDNC 1984). On appeal, the Court of Appeals reversed
and remanded. 769 F.2d 1025 (CA4 1985). The Court of Appeals
concluded that the explicit language of § 1988 allowing recovery of
attorney's fees by a "prevailing party" in a "proceeding to enforce
. . . [T]itle VI of the Civil Rights Act of 1964" covered the
actions taken by respondents subsequent to the filing of the
administrative complaint.
Id. at 1028. The Court of
Appeals then considered whether respondents could bring an
independent action "solely to recover fees for an administrative
complaint that has already been settled."
Id. at 1033. The
Court of Appeals held that § 1988 allowed a separate action for
fees, although it acknowledged the contrary holdings of other
courts.
See Horacek v. Thone, 710 F.2d 496, 499 (CA8
1983);
Estes v. Tuscaloosa County, 696 F.2d 898, 901 (CA11
1983);
Latino Project, Inc. v. City of Camden, 701 F.2d
262 (CA3 1983). We granted certiorari, to resolve the Circuit
conflict, 474 U.S. 1049 (1986), and now reverse.
II
In cases in which civil rights litigation was preceded by
administrative proceedings, this Court has had occasion to consider
whether the court in the civil rights action could award attorney's
fees for time spent in the particular administrative processes.
Webb v. Dyer County Board of Education, 471 U.
S. 234,
471 U. S. 241
(1985) (state tenure rights hearing is not a proceeding to enforce
42 U.S.C. § 1983);
New York Gaslight Club, Inc. v. Carey,
447 U. S. 54 (1980)
(mandatory state employment discrimination proceedings are
proceedings to enforce Title VII). This case presents a question
similar
Page 479 U. S. 12
to those raised in
Webb and
Carey: whether
negotiations subsequent to the filing of a Title VI administrative
complaint are, under § 1988, "proceedings to enforce" Title VI.
This case also presents a question that had not been posed by our
prior § 1988 cases: whether attorney's fees under § 1988 can be
sought in a court action other than litigation in which a party
seeks to enforce the civil rights laws listed in § 1988. Because
our resolution of the latter question resolves this case, we do not
reach the former.
In pertinent part, the Civil Rights Attorney's Fees Awards Act
of 1976, 42 U.S.C. § 1988, provides:
"In any action or proceeding to enforce a provision of . . .
[T]itle 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 fee as part of the
costs."
The plain language of § 1988 suggests the answer to the question
whether attorney's fees may be awarded in an independent action
which is not to enforce any of the civil rights laws listed in §
1988. The section states that
in the action or proceeding to
enforce the civil rights laws listed -- 42 U.S.C. §§ 1981,
1982, 1983, 1985, 1986, Title IX, or Title VI -- the court may
award attorney's fees. The case before us is not, and was never, an
action to enforce any of these laws. On its face, § 1988 does not
authorize a court to award attorney's fees except in an action to
enforce the listed civil rights laws.
The legislative history of § 1988 supports the plain import of
the statutory language. As we have noted before, the legislative
history is replete with references to "the enforcement of the civil
rights statutes
in suits,' `through the courts' and by
`judicial process.'" Webb v. Dyer County Board of Education,
supra, at 471 U. S. 241,
n. 16 (quoting S.Rep. No. 94-1011, pp. 2, 6 (1976); H.R.Rep. No.
94-1558, p. 1 (1976)). Moreover, to support its statement that
"parties may be considered to have prevailed when they vindicate
rights through a
Page 479 U. S. 13
consent judgment or without formally obtaining relief," the
Senate Report cited cases that involved at a minimum the filing of
a judicial complaint. S.Rep. No. 94-1011, at 5 (citing
Kopet v.
Esquire Realty Co., 523 F.2d 1005 (CA2 1975);
Parham v.
Southwestern Bell Telephone Co., 433 F.2d 421 (CA8 1970);
Thomas v. Honeybrook Mines, Inc., 428 F.2d 981 (CA3 1970);
Richards v. Griffith Rubber Mills, 300 F.
Supp. 338 (Ore. 1969);
Aspira of New York, Inc. v. Board of
Education of New York City, 65 F.R.D. 541 (SDNY 1975)). The
House Report, even while it stressed that "`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," clearly
contemplated that parties obtaining fees would have initiated civil
rights litigation:
"If
the litigation terminates by consent decree, for
example, it would be proper to award counsel fees. A 'prevailing'
party should not be penalized for seeking an
out-of-court
settlement, thus helping to lessen docket congestion. Similarly,
after a complaint is filed, a
defendant might
voluntarily cease the unlawful practice."
H.R.Rep. No. 94-1558, at 7 (citations omitted; emphasis
supplied). As in the Senate Report, each of the cases cited by the
House Report to support the above statements involved, at a
minimum, the filing of a judicial complaint.
See Evers v.
Dwyer, 358 U. S. 202
(1958);
Incarcerated Men of Allen County Jail v. Fair, 507
F.2d 281 (CA6 1974);
Brown v. Gaston County Dyeing Machine
Co., 457 F.2d 1377 (CA4 1972);
Lea v. Cone Mills
Corp., 438 F.2d 86 (CA4 1971);
Parham, supra; Parker v.
Matthews, 411 F.
Supp. 1059 (DC 1976);
Aspira, supra.
We recognize that dicta in opinions of this Court suggest that
the authorization of attorney's fee awards only by a court in an
action to enforce the listed civil rights laws would be anomalous.
See Carey, 447 U.S. at
447 U. S. 65-66.
But see id. at
447 U. S. 71
(STEVENS, J., concurring in judgment) ("Whether Congress intended
to authorize a separate federal action solely
Page 479 U. S. 14
to recover costs, including attorney's fees, . . . is not only
doubtful but is a question that is plainly not presented by this
record").
See also White v. New Hampshire Dept. of Employment
Security, 455 U. S. 445,
455 U. S. 451,
n. 13 (1982). But if one must ignore the plain language of a
statute to avoid a possibly anomalous result, "
[t]he short
answer is that Congress did not write the statute that way.'"
Garcia v. United States, 469 U. S. 70,
469 U. S. 79
(1984), quoting Russello v. United States, 464 U. S.
16, 464 U. S. 23
(1983) (in turn quoting United States v. Naftalin,
441 U. S. 768,
441 U. S. 773
(1979)). The legislative history clearly envisions that attorney's
fees would be awarded for proceedings only when those proceedings
are part of or followed by a lawsuit.
Moreover, we now believe that the paradoxical nature of this
result may have been exaggerated. There are many types of behavior
that may lead others to comply with civil rights laws. For example,
an employee, after talking to his lawyer, may choose to discuss
hiring or promotion practices with an employer, and as a result of
this discussion the employer may alter those practices to comply
more fully with employment discrimination laws. In some sense, it
may be considered anomalous that this employee's initiative would
not be awarded with attorney's fees. But an award of attorney's
fees under § 1988 depends not only on the results obtained, but
also on what actions were needed to achieve those results. It is
entirely reasonable to limit the award of attorney's fees to those
parties who, in order to obtain relief, found it necessary to file
a complaint in court.
We have also suggested in past cases that today's holding would
create an incentive to file protective lawsuits in order to obtain
attorney's fees.
See Carey, supra, at
447 U. S. 66, n.
6. Upon reflection, however, we think that the better view was
expressed by our conclusion in
Webb, 471 U.S. at
471 U. S. 241,
n. 15, that
"competent counsel will be motivated by the interests of the
client to pursue . . . administrative remedies when they are
available and counsel believes that they may prove
Page 479 U. S. 15
successful."
An interpretation of § 1988 cannot be based on the assumption
that
"an attorney would advise the client to forgo an available
avenue of relief solely because § 1988 does not provide for
attorney's fees. . . ."
Ibid. Moreover, our holding creates a legitimate
incentive for potential civil rights defendants to resolve disputes
expeditiously, rather than risk the attorney's fees liability
connected to civil rights litigation.
A court hearing one of the civil rights claims covered by § 1988
may still award attorney's fees for time spent on administrative
proceedings to enforce the civil rights claim prior to the
litigation.
See Carey, supra (so holding under identical
language of Title VII). Moreover, even if the prior proceeding is
not a "proceeding to enforce" one of the § 1988 civil rights laws,
the "discrete portion of the work product from the administrative
proceedings" that "was both useful and of a type ordinarily
necessary to advance the civil rights litigation to the stage it
reached before settlement" can be part of the attorney's fees
awarded under § 1988.
Webb, supra, at
471 U. S. 243;
see also Hensley v. Eckerhart, 461 U.
S. 424 (1983). Under the plain language and legislative
history of § 1988, however, only a court in an action to enforce
one of the civil rights laws listed in § 1988 may award attorney's
fees.
III
The Court of Appeals, in an alternative response to the argument
that § 1988 does not authorize fee awards in actions other than
those to enforce the listed civil rights laws, stated that
"[e]ven if 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 motion to intervene
in the
ECOS action."
769 F.2d at 1034. This argument misconstrues the flaw in
respondents' claim for fees. Whatever respondents' role in the
ECOS action, and whether or not the
ECOS action
was to enforce Title VI, respondents did not seek attorney's fees
in that action. Respondents instead agreed that their
Title VI claims in their
Page 479 U. S. 16
proposed complaint would be dismissed, and brought a completely
independent action for attorney's fees. The court that considered
the attorney's fees claim was not in an action to enforce Title VI.
Whether the court in the
ECOS action could have awarded
attorney's fees to respondents, while doubtful,
* is irrelevant. The
court that did consider the claim was not authorized under § 1988
to award attorney's fees.
The judgment of the Court of Appeals is reversed.
It is so ordered.
* Respondents allege that, although the District Court did not
rule on respondents' motion, they were made parties to the
ECOS action by signing the consent judgment, which
dismissed with prejudice their Title VI claims. Assuming,
arguendo, that respondents were made parties to the
ECOS litigation, the District Court identified only 37
hours of work that was related to the
ECOS litigation.
598 F.
Supp. 258, 266 (MDNC 1984). As to this time, the District Court
determined that respondents were not entitled to attorney's fees,
because they were not prevailing parties in the
ECOS
litigation. The motion to intervene was never ruled on by the
ECOS court; respondents obtained neither an injunction of
the highway extension nor a declaration that petitioners violated
Title VI; and the
ECOS motion had little catalytic effect
on the Final Mitigation Plan, the completion of which was imminent
before the
ECOS motion.
Ibid.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL and JUSTICE BLACKMUN
join, dissenting.
Today the Court holds that litigants, who seek to enforce their
rights under Title VI of the Civil Rights Act of 1964, and who
prevail in an administrative proceeding expressly created to
effectuate enforcement of those rights, cannot bring an action
under 42 U.S.C. § 1988 to recoup the costs incurred, including a
reasonable attorney's fee for the services that produced the
administrative victory. What today's holding ensures is that no
challenge brought under a statute covered by § 1988 will ever be
settled
without a court action. Because this holding
ignores the past decisions of the Court, the purpose of § 1988, and
the burden it places on federal district courts, I respectfully
dissent.
Page 479 U. S. 17
I
The Court holds that the plain language of § 1988 reveals that
an award of attorney's fees is authorized only for parties who
substantially prevail on a civil rights claim in a lawsuit. This
result -- with its attendant unnecessary and inefficient
consequences -- is not compelled by the plain language of the
statute.
Section 1988 provides:
"In any action or proceeding to enforce . . . 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 fee as part of the costs."
From this, the Court reasons that § 1988, by its own terms,
contemplates that only "the court" which has also entertained the
substantive claim of a civil rights violation may award attorney's
fees. Plaintiffs who fail to file a lawsuit and who prevail before
an administrative agency are therefore prohibited from bringing an
independent action for fees.
Certainly nothing in the language of § 1988 requires this
outcome. Claimants such as the respondents in this case plainly
seek to vindicate their rights under Title VI when they bring an
action in federal court to obtain attorney's fees for an
administrative victory. The lawsuit for fees which follows the
successful pursuit of a claim at the administrative level is part
of the "proceeding to enforce" Title VI within the meaning of §
1988, whether it is filed before or after the administrative battle
is won. It is still "
the court" that awards the fees. The
so-called independent action for attorney's fees is, as a logical
matter, part of the "proceeding to enforce" the civil rights claim
involved.
Respondents must pursue in court an award to which they are
entitled in enforcing Title VI because the primary adjudicator of
the violations, the administrative agency, did not have authority
to provide the full range of relief attainable under law. They
claim nothing more than the relief
Page 479 U. S. 18
available for Title VI claims upon which they have already
prevailed. The attorney's fee provision of § 1988 provides
authority for the fee award by using language broad enough to
encompass work done in administrative proceedings, and specifies
the procedure for obtaining such an award, namely, petition to a
court.
II
The Court's position is at odds with the purpose underlying §
1988. Section 1988 is designed to
"promote the enforcement of the Federal civil rights acts, as
Congress intended, and to achieve uniformity in those statutes and
justice for all citizens."
H.R.Rep. No. 94-1558, p. 9 (1976). By its enactment, Congress
recognized that
"fee awards have proved an essential remedy if private citizens
are to have a meaningful opportunity to vindicate the important
Congressional policies which these laws contain."
S.Rep. No. 94-1011, p. 2 (1976). As this case demonstrates,
important civil rights are often vindicated in administrative
proceedings. Fee awards are equally essential to effective use of
the administrative and judicial fora.
Congress enacted § 1988 specifically in response to this Court's
decision in
Alyeska Pipeline Service Co. v. Wilderness
Society, 421 U. S. 240
(1975). In
Alyeska, the respondent had succeeded in
enjoining the Department of Interior from issuing the permits
required for the construction of an oil pipeline. Although Congress
ultimately amended the Mineral Leasing Act to allow issuance of the
permits in question, the Court of Appeals granted the respondent
organization's application for attorney's fees on the ground that
it had acted as a "private attorney general" advancing a high
priority congressional policy.
Wilderness Society v.
Morton, 161 U.S.App.D.C. 446, 450-451, 495 F.2d 1026,
1030-1031 (1974).
This Court reversed that decision, holding that use of the
"private attorney general" theory was inappropriate, and that
"legislative guidance" was necessary before a court could
engage
Page 479 U. S. 19
in fee-shifting.
Alyeska, supra, at
421 U. S. 247.
One consequence of this decision was that plaintiffs could no
longer recover attorney's fees after prevailing on certain civil
rights claims.
As a result, Congress became concerned that private litigants
would be completely unable to protect their civil rights without
"the opportunity to recover what it costs them to vindicate these
rights in court." S.Rep. No. 94-1011,
supra, at 2. The
Senate Report makes this plain:
"[T]he Committee has found that fee awards are essential if the
Federal statutes to which [§ 1988] applies are to be fully
enforced. We find that the effects of such fee awards are ancillary
and incident to securing compliance with these laws, and that fee
awards are an integral part of the remedies necessary to obtain
such compliance."
Id. at 5 (footnote omitted). Congress recognized that
the promise of a forum for vindication of one's civil rights is
meaningless absent an ability to obtain adequate representation,
and § 1988 was therefore enacted to "remedy anomalous gaps in our
civil rights laws created by the United States Supreme Court's . .
. decision in
Alyeska. . . . "
Id. at 1.
The congressional purpose visible in the legislative history of
§ 1988 militates in favor of allowing an individual action for fees
following success in an administrative proceeding to enforce one of
the civil rights statutes covered by § 1988. An indigent citizen
who cannot afford to hire a lawyer to sue to enforce the civil
rights laws is similarly unable to pursue relief before an
administrative agency. Allowing an independent action for fees
furthers the legislative policy of ensuring statutory compliance by
encouraging "vigorous enforcement" actions by private citizens.
Id. at 4.
III
In light of the language and legislative history of § 1988, it
is not surprising that past decisions of this Court rejected
Page 479 U. S. 20
today's holding. In
New York Gaslight Club, Inc. v.
Carey, 447 U. S. 54
(1980), we held that a state administrative procedure to enforce
Title VII constitutes an "action or proceeding" as that phrase is
utilized in the Title VII fees provision, 42 U.S.C. § 2000e-5(k),
and that the complainant was therefore entitled to attorney's fees
for work done in the course of that proceeding. In addition, the
Court stated that the availability of attorney's fees in a federal
court should not depend upon whether a Title VII claimant prevailed
in federal court or before an administrative body. The Court
reasoned:
"It would be anomalous to award fees to the complainant who is
unsuccessful or only partially successful in obtaining state or
local remedies, but to deny an award to the complainant who is
successful in fulfilling Congress' plan that federal policies be
vindicated at the state or local level. Since it is clear that
Congress intended to authorize fee awards for work done in
administrative proceedings, we must conclude that §706(f)(1)'s
authorization of a civil suit in federal court
encompasses a
suit solely to obtain an award of attorney's fees for legal work
done in state and local proceedings."
Id. at
447 U. S. 66
(footnote omitted; emphasis added). More recently, in
White v.
New Hampshire Dept. of Employment Security, 455 U.
S. 445 (1982), the Court explained its analysis in
Carey, supra, observing that
"a claimed entitlement to attorney's fees is sufficiently
independent of the merits action under Title VII to support a
federal suit 'solely to obtain an award of attorney's fees for
legal work done in state and local proceedings.'"
455 U.S. at
455 U. S.
451-452, n. 13 (quoting
Carey, supra, at
66).
Carey cannot be distinguished from the case before us.
Section 1988 employs phraseology virtually identical to that
Page 479 U. S. 21
used in the Title VII fee provision at issue in
Carey,
[
Footnote 1] and the relevant
Committee Reports underline Congress' intent to model § 1988 after
the Title VII fee provision. [
Footnote 2] Respondents herein prevailed in a federal
administrative proceeding to enforce Title VI, and, on the
reasoning of
Carey, they are entitled to reasonable
attorney's fees.
IV
A most troubling effect of the Court's decision is the pointless
burden it will place upon federal district courts. Claimants
unfettered by a requirement that they exhaust administrative
remedies -- Title VI claimants are included in this category
[
Footnote 3] -- will
immediately file suit in federal court to protect any possible
claim for attorney's fees should they subsequently prevail.
In
Webb v. Dyer County Board of Education, 471 U.
S. 234 (1985), the Court held that § 1988 does not
mandate an automatic award of fees to a civil rights claimant who
prevails in an administrative proceeding. Specifically, the Court
required that the proceeding involved be one "to enforce" the
underlying civil rights statute. But here the Court has not
determined whether the administrative scheme promulgated
Page 479 U. S. 22
by the United States Department of Transportation is a
"proceeding to enforce . . . Title VI." Instead, the Court sweeps
aside the possibility of fees in
any administrative
proceeding -- whether mandatory or optional, whether integral or
peripheral to an enforcement scheme -- unless the complainant files
a concurrent lawsuit alleging the same civil rights violations.
Unless such a complaint is filed in court, success at the
administrative level
automatically precludes any
subsequent action for fees.
This bright-line solution to the problem of when fees may be
awarded for work done in an administrative proceeding is achieved
at great cost. First, the Court's rule allows differential
treatment of civil rights claimants who prevail at the
administrative level solely as a function of the existence (or lack
thereof) of a civil complaint. Unfairness results when
"complainants with meritorious claims who succeed in . . .
administrative proceedings are denied any possible action for
attorney's fees in federal court, while those claimants with
equally or less meritorious claims who lose in administrative
proceedings but happen to prevail in federal court are granted
attorney's fees."
Blow v. Lascaris, 523 F.
Supp. 913, 917 (NDNY 1981),
aff'd, 668 F.2d 670 (CA2),
cert. denied, 459 U.S. 914 (1982). [
Footnote 4]
Page 479 U. S. 23
Second, despite the Court's statement to the contrary, the new
rule
will "create an incentive to file protective lawsuits
in order to obtain attorney's fees."
Ante at
479 U. S. 14. Of
course, as the Court observes,
"competent counsel will . . . pursue . . . administrative
remedies when they are available and counsel believes they may
prove successful,"
Webb, 471 U.S. at
471 U. S. 241,
n. 15. Simultaneously, however, counsel will file a court action to
ensure that he or she will be eligible for an attorney's fee even
if success comes in the administrative forum. One need not assume
that
"an attorney would advise the client to forgo an available
avenue of relief solely because § 1988 does not provide for
attorney's fees,"
Ibid., to conclude that this holding will encourage
responsible attorneys to file civil complaints. No avenue of relief
need be forgone; rather, two avenues must be concurrently (or
alternately) pursued. [
Footnote
5]
Moreover, Congress has explicitly recognized that complainants
who seek to vindicate their civil rights are often unable to obtain
representation without the prospect that an attorney's fee will
accompany a successful outcome. [
Footnote 6] This is
Page 479 U. S. 24
as true for complainants seeking relief at the administrative
level as it is for those filing federal lawsuits. It is entirely
reasonable for an attorney whose only source of payment will be
court-awarded fees to select that forum rather than the
administrative forum, particularly if the only other option is
failing to pursue the case at all. As the Court stated in
Carey,
"[t]he existence of an incentive to get into federal court, such
as the availability of a fee award, would ensure that almost all
Title VII complainants would abandon state proceedings as soon as
possible."
447 U.S. at
447 U. S. 66, n.
6. Now the Title VI claimant may choose to bypass administrative
mechanisms altogether, since their exhaustion is not mandatory, and
file a complaint in federal court to assure himself or herself of
attorney's fees upon prevailing. The court's inability to entertain
a separate action for fees "will promote such a bypass." Parness
& Woodruff, Federal District Court Proceedings to Recover
Attorney's Fees for Prevailing Parties on Section 1983 Claims in
State Administrative Agencies, 18 Ga.L.Rev. 83, 95 (1983).
Nor will this holding allow the courts to evade a series of
determinations as to which administrative schemes create
"proceeding[s] to enforce" the civil rights statutes covered by §
1988. Once this decision is handed down, "competent counsel,"
Webb, supra, at
471 U. S. 241,
n. 15, will file a civil complaint and seek relief at the
administrative level in any civil rights action included in § 1988.
When these complainants return to federal court after pursuit of
administrative remedies, the courts will then be forced to confront
the question of which administrative schemes constitute
"proceeding[s] to enforce" the relevant civil rights statutes.
Finally, the holding will not, as the Court suggests,
"creat[e] a legitimate incentive for potential civil rights
defendants to resolve disputes expeditiously, rather than risk the
attorney's fees liability connected to civil rights
litigation."
Ante at
479 U. S. 15. The
Court incorrectly assumes that claimants seeking administrative
relief will not file protective civil complaints.
Page 479 U. S. 25
In fact, plaintiffs' attorneys will file complaints that lie
dormant during the course of any administrative proceedings, so
that they may ultimately claim either that they were engaged in a
"proceeding to enforce" the statute in question under § 1988, or
that the time spent in the administrative forum was "both useful
and of a type ordinarily necessary to advance the civil rights
litigation to the stage it reached before settlement."
Webb,
supra, at
471 U. S. 243.
See also Hensley v. Eckerhart, 461 U.
S. 424 (1983). Thus, after the decision in this case,
defendants will remain at risk of incurring liability for fees
while the administrative process in question runs its course.
Initial resort to the administrative forum and the settlement of
claims by the agency should be encouraged, not discouraged.
Congress explicitly stated that "[a]
prevailing party' should
not be penalized for seeking an out-of-court settlement, thus
helping to lessen [court] congestion." H.R.Rep. No. 94-1558, p. 7
(1976). Although this statement was made with reference to the
post-civil complaint settlement process, its logic has equal force
where utilization of the administrative process could eliminate the
need for court action.
In my view, it is pointless formalism to treat differently a
federal action stayed until completion of the administrative
process and resuscitated for a fee award, and a federal action
filed after administrative victory. [
Footnote 7]
Page 479 U. S. 26
I can see little good and some significant harm emerging from
today's decision. Civil rights complainants are now on notice that
they must file a civil lawsuit to have any hope of obtaining
attorney's fees upon prevailing in an administrative enforcement
proceeding. The bad news for federal district courts is that
counsel will inevitably file such suits. Because the language and
purpose of § 1988 allow an independent action to obtain fees for
work done at an administrative proceeding to enforce Title VI, and
because I believe the contrary holding has mischievous
consequences, I dissent.
[
Footnote 1]
Compare 42 U.S.C. § 2000e 5(k) ("In any action or
proceeding under [Title VII] the court, in its discretion, may
allow the prevailing party, other than the Commission or the United
States, a reasonable attorney's fee as part of the costs")
with 42 U.S.C. § 1988 ("In any action or proceeding to
enforce a provision of . . . 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 fee as
part of the costs").
[
Footnote 2]
See, e.g., S.Rep. No. 94-1011, pp. 4 and 6 (1976)
(Title VII cases contain "appropriate [standards]" for the
application of § 1988)- H.R.Rep. No. 94-1558, p. 8 (1976) (same).
See also New York Gaslight Club, Inc. v. Carey,
447 U. S. 54,
447 U. S. 70-71,
n. 9 (1980) (Section 1988 is legislation similar in purpose and
design to Title VII's fee provision).
[
Footnote 3]
See Guardians Assn. v. Civil Service Comm'n of New York
City, 463 U. S. 582,
463 U. S.
593-595 (1983) (WHITE, J.);
Cannon v. University of
Chicago, 441 U. S. 677,
441 U. S.
710-716 (1979);
University of California Regents v.
Bakke, 438 U. S. 265,
438 U. S.
419-421, and n. 28 (1978) (STEVENS, J.).
[
Footnote 4]
The Court points out that "[t]here are many types of behavior
that may lead others to comply with civil rights laws,"
ante at
479 U. S. 14,
such as informally discussing employment practices with an employer
after consulting an attorney. The suggestion is that it is no more
logically anomalous to refuse to provide fees for an informal
initiative than to refuse to do so for work in a successful
administrative proceeding. However, Congress has not drawn the line
between court action and all other activity, but has chosen to
allow fees for participation in "proceeding[s]" while neglecting to
do so for informal initiatives. Under these circumstances, it is
anomalous to award fees to administrative participants who file
civil complaints while withholding fees from identically situated
administrative participants who do not. The proper analogy, using
the Court's example, would be an award of fees for informal
initiatives which occur while a complaint is pending and a refusal
to award fees for informal initiatives when no civil action has
been filed.
[
Footnote 5]
As a practical matter, the Court's position will lead civil
rights claimants to do the following: (1) file a federal civil
action, (2) pursue the available administrative agency remedy, (3)
obtain a stay from the federal district court, and (4) return to
federal court to file a fee petition after prevailing before the
agency. Under these circumstances, there will rarely be any doubt
that some portion of the work before the agency was "both useful
and of a type ordinarily necessary" to successful litigation of the
case.
Webb v. Dyer County Board of Education, 471 U.S. at
471 U. S. 243.
Consequently, some fee award should ordinarily be allowed.
The use of the above procedure should not be encouraged; it is
wasteful, and not required by the statutory language.
[
Footnote 6]
This concern is echoed many times over in the legislative
history of the Civil Rights Attorney's Fees Awards Act.
See 122 Cong. Rec. 35128 (1976) (remarks of Rep.
Seiberling) ("Unless you can get adequate legal representation, the
civil rights laws are just a lot of words");
id. at 33313
(remarks of Sen. Tunney) ("Unless effective ways are found to
provide equal legal resources, the Nation must expect its most
basic and fundamental laws to be objectively repealed by the
economic fact of life that the people these laws are meant to
benefit and protect cannot take advantage of them. Attorneys' fees
have proved one extremely effective way to provide these equal
legal resources. . . .").
[
Footnote 7]
The Court fails to reach respondents' claim that they are
entitled to fees by virtue of their proposed complaint, motion to
intervene, and participation in the consent judgment in
ECOS,
Inc. v. Brinegar, No. C-352D-72 (MDNC, Feb. 20, 1973). The
Court reasons that, even if the District Court entertaining the
ECOS action could have awarded fees to respondents, this
independent action for fees cannot survive because the court that
entertains the initial civil rights complaint is the only court
that may award attorney's fees to a successful complainant.
It is worth noting that the parties agreed in the consent
judgment that respondents' Title VI claim would be dismissed with
prejudice, but that this disposition was
without prejudice
to respondents' right to pursue attorney's fees. Hence, the Court
holds not only that prevailing complainants must file a civil
complaint in order to obtain fees, but also that parties may not
agree in one action to allow pursuit of fees in a separate
action.