32 Fair empl.prac.cas. (Bna) 1283, 32 Empl. Prac. Dec. P 33,782 Leonard Webb, Cross-Appellee v. County Board of Education of Dyer County, Tennessee, Cross-Appellants32 Fair empl.prac.cas. (Bna) 1283, 32 Empl. Prac. Dec. P 33,782 Leonard Webb, Cross-Appellee v. County Board of Education of Dyer County, Tennessee, Cross-Appellants
The primary issue on this appeal is whether
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 subsеquently 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
The parties eventually settled the case. Pursuant to his
When the parties were unable to agree on this issue, the court awarded over $9,700 in fees for services rendered by plaintiff‘s counsel before the district court but denied attоrney‘s fees for efforts devoted to the state administrative hearing. The court held that
II.
In interpreting
In pertinent part,
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 рrevailing 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 rеmedies 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 VII‘s fee provision1 as entitling plaintiff‘s counsel to payment for work done in administrative proceedings. First, the phrasе “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 thrоugh 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 bе 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 does 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
Secondly, there is no congressional policy requiring plaintiffs who sue under the specific provisions listed in
The proper approach to the question at hand has been taken by the Second, Third, Fifth and Eleventh Circuits. Three of those circuits have held that
Plaintiff‘s counsel attempts to distinguish the decisions from the Second, Third and Eleventh Circuits on the ground that the plaintiffs in those cases prevailed at the administrative level and sued in federal court only for attorney‘s fees, whereas Webb lost during administrаtive proceedings and was forced to seek substantive relief as well. This argument is faulty because it makes the availability of attorney‘s fees dependent upon the fortuitous circumstance of whether the ultimately prevailing plaintiff won or lost at the administrative level. Since the weight of authority holds that plaintiffs who prevail during optional аdministrative proceedings are not entitled to attorney‘s fees under
The Supreme Court‘s opinion in Carey supports this conclusion. The court there held that the availability of compensation for administrative work “should not deрend upon whether the complainant ultimately finds it necessary to sue in federal court to obtain relief other than attorney‘s fees.” 447 U.S. at 66, 100 S.Ct. at 2032. A title VII plaintiff may therefore sue for attorney‘s fees in federal court regardless of whether he won or lost at the administrative level. Although the final result differs in
We acknowledge the existence of case law supporting Webb‘s position. In Brown v. Bathke, 588 F.2d 634, 638 (8th Cir.1978),3 a
The Seventh Circuit also would grant attorney‘s fees to Webb. See Ciechon v. City of Chicago, 686 F.2d 511, 524-25 (7th Cir.1982); cf. Chrapliwy v. Uniroyal, Inc., 670 F.2d 760 (7th Cir.1982) (title VII case involving optional administrative proceedings). The Ciechon decision‘s interpretation of the рhrase “action or proceeding” and its application of the policies underlying Carey have been rejected for reasons already stated. We therefore decline to follow the seventh circuit‘s rule.4
Furthermore, we infer from the legislative history of
The purpose and effect of S. 2278 are simple--it is designed to allow courts to provide the familiar remedy of reasonable counsel fees to prevailing parties in suits to enforce the civil rights acts which Congress has passed since 1866....
In many сases arising under our civil rights laws, the citizen who must sue to enforce the law has little or no money with which to hire a lawyer. If private citizens are to be able to assert their civil rights, and if those who violate the Nation‘s fundamental laws are not to proceed with impunity, then citizens must have the opportunity to recover what it costs them to vindicate these rights in court. [Emphasis supplied.]
S.Rep. No. 94-1011, supra, at 2, U.S.Code Cong. & Admin.News 1976, pp. 5908, 5909-5910. The notion that attorney‘s fees are available only for services rendered in court permeates the entire document. For instance, the Report‘s final substantive comment is that:
Enforcement of the laws depends on governmental action and, in some cases, on private actiоn through the courts. If the cost of private enforcement actions becomes too great, there will be no private enforcement. If our civil rights laws are not to become mere hollow pronouncements which the average citizen cannot enforce, we must maintain the traditionally effective remedy of fee shifting in these cases. [Emphasis supplied.]
Id. at 6, U.S.Code Cong. & Admin.News 1976, p. 5913.
Language in the House Report is consistent with this interpretation:
In many instances where [the civil rights] laws are violated, it is necessary for the citizen to initiate court action to correct the illegality.... Because a vast majority of the victims of civil rights violations cannot afford legal counsel, they are unable tо present their cases to the courts. [Emphasis supplied.]
H.R.Rep. No. 94-1558, supra, at 1. The Report then states that
The plaintiff raises two counter-arguments. First, the House Report cites Parker v. Matthews, 411 F.Supp. 1059 (D.D.C.1976), affd. sub nom. Parker v. Califano, 561 F.2d 320 (D.C.Cir.1977), for the proposition that a plaintiff who obtains relief through a consent decree rather than through a trial on the merits is entitled to attorney‘s fees. H.R.Rep. No. 94-1558, supra, at 7. Although this holding is unexceptional, some of the fees awarded in Parker were for services rendered in administrative proceedings. Parker is distinguishable, however, on the ground that it is a title VII case. Moreover, even if the reference to Parker supports Webb‘s position, that isolated instance does not outweigh the numerous indications throughout the legislative history that Congress intended only work done in court proceedings to be compensable under
Second, Webb points out that in calculating attorney‘s fees, the courts are to include “all time reasonably expended on a matter” and are to use the same standards as are used in complex litigation such as antitrust so that the value of counsel‘s services will not be reduced simply becаuse “the rights involved may be nonpecuniary in nature.” S.Rep. No. 94-1011, supra, at 6, U.S.Code Cong. & Admin.News 1976, p. 5913. The plaintiff argues that the time devoted to the optional administrative process in this case was time that was “reasonably expended.”
The error in this argument, as we have previously indicated, is that there is no congressional policy favoring exhaustion of administrative remedies before bringing suit under the statutes listed in
Second, the directive to use the same standards as are used in other types of complex litigation in placing a value upon counsel‘s services only becomes operative if those services fall within the purview of
III.
On cross-appeal, the defendants argue that the award of attorney‘s fees for services rendered before the district court must be reduced either because Webb did not fully prevail on his
Although the plaintiff‘s complaint originally was filed as a class action, no class wаs ever certified and Webb obtained only individual relief pursuant to the settlement agreement. The defendants admit that Webb is a prevailing party who is entitled to attorney‘s fees. They nevertheless argue that because of the limited relief obtained, the plaintiff‘s attorney‘s fee must be reduced for it to be “reasonable” under Hensley v. Eckerhart, --- U.S. ----, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). Thеy first contend that since the plaintiff‘s individual claims are “unrelated” to his class action claims, id. at 1940, his attorney is not entitled to compensation for time spent drafting the class allegations in the complaint. Having reviewed the complaint, however, we hold that the individual and class allegations are sufficiently related such that no reduction in feеs is merited on this ground.
Second, the defendants argue that however significant Webb‘s individual relief may be, it “is limited in comparison to the scope of the litigation as a whole,” id. at 1943, because the complaint asserted a class action. This case did not proceed to trial, however; nor is there any demonstration that significant pre-trial preрaration was devoted to the class allegations. Under these circumstances, the defendants’ argument is reducible to the notion that whenever a plaintiff settles for individual relief and the complaint happens to include class allegations, the plaintiff‘s attorney‘s fee must be reduced. We decline to adopt such a rigid rule.
Third, the defеndants contend that the plaintiff‘s attorney inadequately documented the number of hours devoted to the district court proceedings. We have reviewed the affidavit of plaintiff‘s attorney and conclude that this argument is without merit. Finally, the defendants assert that the amount awarded to the plaintiff‘s attorney was excessive. We hold that the district court did not abuse its broad discretion in making this award. Id. at 1941. The judgment of the district court is AFFIRMED.
Notes
In any action or proceeding under this sub-chapter 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.