Webb v. County Board of Education

715 F.2d 254, 32 Fair Empl. Prac. Cas. (BNA) 1283
CourtCourt of Appeals for the Sixth Circuit
DecidedAugust 29, 1983
DocketNos. 82-5154, 82-5158
StatusPublished
Cited by2 cases

This text of 715 F.2d 254 (Webb v. County Board of Education) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Webb v. County Board of Education, 715 F.2d 254, 32 Fair Empl. Prac. Cas. (BNA) 1283 (6th Cir. 1983).

Opinion

CONTIE, Circuit Judge.

The primary issue on this appeal is whether 42 U.S.C. § 1988 allows an award of attorney’s fees in 42 U.S.C. § 1981 litigation for services rendered in optional state administrative proceedings. We hold that it does not.

I.

Leonard Webb, the plaintiff, was a tenured black teacher in the Dyer County schools. The Board suspended him in March, 1974 pending the investigation of unspecified charges. It terminated the plaintiff two weeks later on grounds of unprofessional conduct and insubordination which had been brought to its attention by parents and school administrators. The Board did not, however, provide Webb with written charges and a hearing before taking this action.

The plaintiff subsequently demanded and received a hearing at which he attempted to show that the discharge was unjustified. Nearly four years later, the Board issued a final decision which upheld the discharge. Webb then filed suit under 42 U.S.C. §§ 1981, 1983, 1985, 1986, 1988 and 2000d, alleging that he had been terminated on account of his race.

The parties eventually settled the case. Pursuant to his § 1981 claim, Webb received $15,400 in damages and a decree ordering the Board both to treat the plaintiff as having resigned and to place no disparaging remarks on his professional record. The matter of attorney’s fees was reserved.

When the parties were unable to agree on this issue, the court awarded over $9,700 in [256]*256fees for services rendered by plaintiff’s counsel before the district court but denied attorney’s fees for efforts devoted to the state administrative hearing. The court held that § 1988 authorizes attorney’s fees for work performed in administrative proceedings only where those proceedings are a prerequisite to filing suit in federal court. Since Webb was not required to exhaust state administrative remedies before filing a § 1981 claim, his attorney was not entitled to fees. The plaintiff appeals the partial denial of fees. The defendants cross-appeal the partial award of fees on the alternative grounds that Webb has not fully prevailed and that the amount awarded per hour was excessive.

II.

In interpreting § 1988, this court is “to use the broadest and most effective remedies available to achieve the goals of our civil rights laws.” S.Rep. No. 94-1011, 94th Cong., 2d Sess. 3 (1976), U.S.Code Cong. & Admin.News 1976, pp. 5908, 5910. Nevertheless, we are mindful that only Congress has the prerogative to establish exceptions to the general rule that prevailing litigants must bear their own attorney’s fees. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). Hence, in construing the attorney’s fees statute liberally, this court may not go further than Congress intended. To discover that intent, we look primarily to the statute itself and to the legislative history. Northcross v. Board of Education, 611 F.2d 624, 632 (6th Cir.1979), cert, denied, 447 U.S. 911, 100 S.Ct. 2999, 64 L.Ed.2d 862 (1980).

In pertinent part, 42 U.S.C. § 1988 provides:

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

Since this provision tracks the language of titles II and VII of the Civil Rights Act of 1964, S.Rep. No. 94-1011, supra at 2; H.R. Rep. No. 94-1558, 94th Cong., 2d Sess. 5 (1976), the plaintiff requests us to extend the Supreme Court’s holding in New York Gaslight Club, Inc. v. Carey, 447 U.S. 54, 100 S.Ct. 2024, 64 L.Ed.2d 723 (1980).

In Carey, the plaintiff invoked state administrative and court remedies before filing a title VII action. After the defendant agreed prior to trial to comply with the results of the state proceedings, the case was dismissed on all issues except attorney’s fees. The court construed title VIPs fee provision1 as entitling plaintiff’s counsel to payment for work done in administrative proceedings. First, the phrase “action or proceeding” was held to contemplate administrative proceedings. The court compared the attorney’s fee provisions of title II and title VII and noted that title II, which is enforceable solely by court suits, only compensates services that are rendered during “actions.” Conversely, title VII, which is enforceable through both administrative and judicial channels, compensates work done in “actions or proceedings.” The court ruled that in order for the term “proceedings” not to be surplusage, it must refer to administrative actions. Id. at 61,100 S.Ct. at 2029. Second, the court reasoned that since title VII plaintiffs are required to pursue administrative remedies, attorney’s fees must be available to compensate counsel’s efforts during such proceedings. Otherwise, plaintiffs would be deterred from asserting meritorious claims by the prospect of having to pay fees. Id. at 63, 100 S.Ct. at 2030.

Despite the plaintiff’s urgings to the contrary we hold that the analysis in Carey [257]*257does not control the present case.2 Although title VII provides for payment of attorney’s fees in “actions or proceedings” whereas title II permits compensation only in “actions,” Congress indicated that the wording of § 1988 follows the language of both title II and title VII. It is therefore difficult to infer that Congress intended the phrase “action or proceeding” in § 1988 to cover services rendered in pursuing optional administrative remedies. Since Congress referred to two statutes, one of which allows attorney’s fees for such work while the other does not, the phrase “action or proceeding” in § 1988 is ambiguous.

Secondly, there is no congressional policy requiring plaintiffs who sue under the specific provisions listed in § 1988 to exhaust administrative remedies. Latino Project, Inc. v. City of Camden, 701 F.2d 262, 264 (3d Cir.1983); Blow v. Lascaras, 523 F.Supp. 913, 916 (N.D.N.Y.1981), aff'd., 668 F.2d 670 (2d Cir.), cert, denied,-U.S.-, 103 S.Ct.

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715 F.2d 254, 32 Fair Empl. Prac. Cas. (BNA) 1283, Counsel Stack Legal Research, https://law.counselstack.com/opinion/webb-v-county-board-of-education-ca6-1983.