North Carolina Department of Transportation v. Crest Street Community Council, Inc.

PETITIONER:North Carolina Department of Transportation, et al.
RESPONDENT:Crest Street Community Council, Inc., et al.
LOCATION:Deseret Gymnasium

DOCKET NO.: 85-767
DECIDED BY: Rehnquist Court (1986-1987)
LOWER COURT: United States Court of Appeals for the Fourth Circuit

CITATION: 479 US 6 (1986)
ARGUED: Oct 07, 1986
DECIDED: Nov 04, 1986

ADVOCATES:
Lacy H. Thornburg – on behalf of Petitioners
Michael David Calhoun – on behalf of respondents
Richard J. Lazarus – on behalf of the United States as amicus curiae in support of petitioners

Facts of the case

Question

Audio Transcription for Oral Argument – October 07, 1986 in North Carolina Department of Transportation v. Crest Street Community Council, Inc.

William H. Rehnquist:

We will hear argument first this afternoon in No. 85-767, North Carolina Department of Transportation versus Crest Street Community Council.

You may proceed, General Thornburgh.

Lacy H. Thornburg:

Mr. Chief Justice, and may it please the honorable Court:

This is a case arising under The Civil Rights Attorney’s Fees Award Act of 1976, 42 USC 1988.

It raises the question as to whether or not attorneys’ fees are appropriate in Federal Administrative procedures under Title VI, when there’s no connected court action in which the fees are recoverable.

And more narrowly stated: is a recipient liable for fees to private complainants for time spent in resolving their complaint by the voluntary informal means that are provided in Title VI and implementing regulations.

Here no private right of action to enforce Title VI was ever brought in court, and no formal administrative hearings or actions in course to enforce Title VI were instituted by the United States Department of Transportion.

The essential facts in this action developed as follows.

From the early 1950s the state and municipal and federal officials had been engaged in planning for an east-west expressway through the city of Durham, North Carolina, in compliance with federal laws and procedures.

And from time to time the expressway appeared on the plan and was shown in a broad ribbon showing to pass through the Crest Street community, which was a predominantly black community.

Construction… it was agreed that the expressway would be constructed in segments.

By December, 1971, three segments were either completed or were under construction.

And at that time an incorporated group know as ECOS, Incorporated, and Duke University students, and some others, filed an action in the Middle District Court of the State of North Carolina against the Department of Transportation, the Commissioner of… North Carolina Highway Commissioners, and others, seeking injunctive relief in that they asked that the construction of the entire expressway be enjoined.

The present respondents were not party to that action.

The grounds for relief alleged in that action were: failure to hold public hearings; failure to comply with protection for park lands; failure to prepare an appropriate environment impact statement.

On February 20th of 1973, the Court enjoined construction on the expressway past those three segments that were then in progress, in construction, until the compliance was had in full with the statutes that were alleged to have been violated.

No Title VI issues were raised in the ECOS action, or contended at that time.

Then for approximately three years, nothing further was done toward additional construction.

But in late ’77, the highway authorities began public meetings, and interest was renewed.

And at that time they began receiving information to prepare a draft environmental impact statement and holding public meetings.

And one of these meetings was held in the Crest Street community which was attended by various parties that were interested in the construction.

Now, these meetings continued through ’77 and ’78, and in ’77 counsel were sought by the Crest Street group, and began their representation in these informal proceedings.

Of course, other groups were attending these meetings at the same time.

And then in September of ’78, the attorneys for the respondents filed an administratif complaint with the U.S. Department of Transportation alleging that this… if construction were completed in accordance with the plans that were being proposed, that this would constitute a violation of their Title VI rights.

The highway project then continued in the planning stage.

And in October of that same year, October of ’78, a draft environmental impact statement was filed by the transportation authorities.

And at that time, after the filing of the administrative complaint, the Department of Transportation said to the parties: See if you can’t settle your differences by voluntary dispute resolution.

And the parties did continue at that time with their informal meetings.

William H. Rehnquist:

This was the United States Department of Transportation you referred to, General Thornburg?

Lacy H. Thornburg:

Yes, Your Honor.

Lacy H. Thornburg:

And that was the Civil Rights Office of the U.S. Department of Transportation.

These informal meetings continued as they had before the complaint was filed.

And in February of ’80, the… after an investigation, the U.S. Department of Transportation did send the Department of Transportation of North Carolina a letter saying: If you complete this construction in accordance with your proposed plans, we think it would constitute a violation of Title VI.

So in June of ’80, pursuant to this, and pursuant to the request from the U.S. Department of Transportation, the parties, various parties including Duke University, VA Hospital, and all the others there, formed a steering committed.

And they began to address, in earnest, the differences between the Crest Street Community and the other parties as to where this expressway was to be located.

And by September of 1981, tentative agreement was reached as to what would be done.

And by March, 1982, a preliminary agreement, final environmental impact statement incorporating the agreement, had been reached.

And the details were finalized.

And by April of 1982, everyone agreed that for all practical purposes the dispute had been resolved.

Now during this entire period, the respondents had filed no court action–

Harry A. Blackmun:

General Thornburg, when you say that had been resolved, is it more or less conceded that the bulk of the relief requested had been obtained?

Lacy H. Thornburg:

–I would say that the bulk of the relief requested was obtained in the sense that what they sought, if your Honor please, it dealt with primarily… their complaint dealt with the relocation of parties that lived in the Crest Street community that were being moved as a result of the building of the road.

And we certainly concede that, for all practical purposes, it was obtained.

And everybody was in agreement.

And they had decided what would be done, how it would be done, the plan that would be implemented.

And this was in April of 1982.

Now all the participants, at this time, from the beginning, had known and continued to be aware of the fact that there was an injunction outstanding in ECOS that dealt with the construction of this expressway, and proscribed it, absent its dissolution.

So it August of 1982, the state highway authorities–

William J. Brennan, Jr.:

Who… what court issued that injunction?

Lacy H. Thornburg:

–That was the Middle District Court, Federal Middle District Court for North Carolina, Your Honor.

William J. Brennan, Jr.:

That was back in ’75?

Lacy H. Thornburg:

’73.

William J. Brennan, Jr.:

’73.

Lacy H. Thornburg:

Yes, Your Honor.

Byron R. White:

So it’s been outstanding for ten years.

Lacy H. Thornburg:

Exactly.

Roughly ten years.

And then the petitioners, we, went into court and asked that it be dissolved.

Now, the reason for that was so that we could implement this plan.

And everybody knew that that had to be resolved before the plan could be implemented.

Lacy H. Thornburg:

And then in October, after our filing to dissolve the injunction, the respondents, for the first time then, filed a motion with the Middle District Court asking to be permitted to intervene.

And in their proposed complaint, they asked for the same relief essentially that had been filed in the administrative complaint filed with the federal… with the United States Department of Transportation; that being that no further construction be permitted, and that… or that the construction be completely removed from the area.

This was after the agreement had been reached by the parties.

And everybody in April had said that the dispute was resolved.

Now, the respondents were never allowed to intervene in the ECOS action.

But they did sign a consent judgment in the case when the… when the injunction was dissolved and the action–

Byron R. White:

I suppose… did they want to, without having intervened?

Or did you want them to?

Or both?

Lacy H. Thornburg:

–We really had no serious objection.

Because the judgment referred to them as applicants for intervention, Your Honor.

And their purpose, primarily, we felt, was to see that the… be there in case the plan… we failed to implement the plan.

And so they were referred to as applicants to intervene.

And they reserved in this judgment the right to seek their attorneys’ fees.

One of the things that happened during the course of this series of meetings was, that we were getting nowhere on the attorneys’ fees matter, but were able to get down to the crux of the issues, and that was, what was best for the Crest Street community.

So all the parties agreed that they would just set aside the attorneys’ fee issue.

So when this judgment was entered, it reserved the right to proceed in case the plan was not implemented; and secondly, reserved to them the right to seek attorneys’ fees.

On December 15th, the day after the consent judgment was filed… that was in 1982… then the parties formally executed the mitigation plan.

And the implementation program is on schedule as of this date.

Now this fairly lengthy recitation of the facts points up the accuracy of the District Court’s crucial findings of fact.

And I would like to review those briefly for the Court, by reason of this Court’s deference to what the District Court does.

And in this case, the District Court held, in its findings of fact, that the respondents never intervened in ECOS; that only 37 of the 1,261 hours that were spent in dispute resolution process involved preparation of pleadings concerning ECOS, or negotiations toward and review of the final mitigation plan; and included in the consent judgment that the ECOS injunction prohibited construction pending compliance with laws other than Title VI; that by motion to intervene the respondents sought to enjoin extension of the highway; and a declaration that the petitioners’ practices violated Title VI; that they obtained neither; that the ECOS injunction only prohibited construction pending compliance with laws other than Title VI; went on to hold that there was no showing that their ECOS fee efforts contributed to the execution of the final mitigation plan; that final settlement seemed imminent when the motion to intervene was filed; and that respondents did not show that their efforts in ECOS, in an action where they never parties, was a catalyst to the plan.

Now those are the things that the District Court found in its crucial findings of fact.

Most of those start on page 28 of the Joint Appendix.

1988 provides that in any action or proceeding to enforce the provision of Title VI, the court, in its discretion, may allow the prevailing party a reasonable attorney’s fee as a part of the cost.

2000s-1 directs promulgation of rules.

49 CFR 21.1 is a set of rules that the U.S. Department of Transportation promulgated pursuant to that statutory mandate.

The complainants, or the respondents in this action, filed their administrative complaint under Section 21.1 et seq.

And under that section, they are required… or the U.S. Department of Transportation is required to seek resolution of disputes by informal means, if possible.

That was as far as the parties ever got in this action, was the resolution of the dispute by these informal means that the act refers to.

Lacy H. Thornburg:

Now 2113 provides that if the informal means don’t work, then what can be done after that.

But–

William J. Brennan, Jr.:

The provision for informal disputes, where is that to be found?

In what… is that in the–

Lacy H. Thornburg:

–Informal dispute resolution?

William J. Brennan, Jr.:

–Yes.

Lacy H. Thornburg:

That’s in 2149c.

William J. Brennan, Jr.:

What statute is that?

Lacy H. Thornburg:

21… it’s the Code of Federal Regulations, 49 CFR 21.1 et seq.

, a series of provisions there.

William J. Brennan, Jr.:

And that… expressly refers to the Department of Transportation?

Lacy H. Thornburg:

Yes, Your Honor.

It was–

William J. Brennan, Jr.:

Is it limited to that department?

Lacy H. Thornburg:

–Yes, sir.

This specifically… these are rules that they adopted pursuant to the Congressional direction.

As emphasized in… by Congress in its enactment of 2000d-1, and the U.S. Department of Transportation in its adopted rules, informal dispute resolution and voluntary compliance was hopefully to be realized without the necessity of court actions.

The parties… the respondents never became parties to any proceeding to enforce Title VI.

They did, in fact, become involved in the administrative enforcement process by calling to the attention of the U.S. Department of Transportaton a potential violation.

And thereafter, they, along with various others, participated in this dispute resolution process.

And they participated in the informal discussions that were initiated by the agency.

And the negotiations, we contend, did not amount to private enforcement proceedings under the act; and that their role was participants, simply in this voluntary dispute resolution process; and that from the time the complaint was filed, their participation was permissive.

Now, this Court, in Cannon, recognized the limited and permissive nature of a complainant’s role in its holding concerning Title IX, and therefore Title VI, where exhaustion of administrative remedies is not required before the filing of a private right of action.

Now in the context of this case, the Congressional design for administrative enforcement relies on the federal agency as the enforcer.

And the main thrust is to obtain recipient compliance by voluntary means.

At this point I would like to reserve my remaining time, if I may.

Byron R. White:

Well, could I just ask you–

Lacy H. Thornburg:

Yes, Your Honor.

Byron R. White:

–do the regulations, or something, anticipate the filing of complaints?

Lacy H. Thornburg:

Yes, Your Honor.

Byron R. White:

Administrative complaints.

Lacy H. Thornburg:

I’m sorry?

Byron R. White:

The filing of complaints with the administration?

Lacy H. Thornburg:

Yes, Your Honor.

That’s what the respondents did in this case.

Pursuant to these rules, they did file their administrative complaint.

And then the–

Byron R. White:

So they were following the administrative procedure?

Lacy H. Thornburg:

–Oh, yes.

Byron R. White:

And you think this was a proceeding?

Lacy H. Thornburg:

I think it was a process, a voluntary dispute process, that does not raise to the level of a proceeding that’s required by 1988, if Your Honor please.

Byron R. White:

Well, it isn’t required, but it’s permitted.

Lacy H. Thornburg:

This form–

Byron R. White:

Do you think this is a proceeding?

It isn’t a proceeding that’s required, I guess.

Lacy H. Thornburg:

–Oh, no.

Byron R. White:

But it’s a proceeding, nevertheless, isn’t it?

Lacy H. Thornburg:

It is a procedure, or proceeding.

But what we’re saying in this case, Your Honor, is, that this is something that is informal in which these folks are not really parties, as such.

They’re participants.

Byron R. White:

Well, they filed a complaint and participated.

Lacy H. Thornburg:

They filed a complaint simply calling to the attention of the U.S. Department of Transportation the fact that this potential violation–

Byron R. White:

Well, they told the Department what they objected to.

Lacy H. Thornburg:

–Yes, Your Honor.

Byron R. White:

And the Department addressed those complaints.

Lacy H. Thornburg:

The Department, as required by these same regulations, then said: We’ll have an investigation.

And they did have an investigation.

And that was what precipitated their letter in 1980, February of ’80, saying: If you go the way you’re going right now, then you are going to have a… probably have a violation.

You see, this whole process, nothing was finalized at this point.

The subject was still open to debate as to where this road was going to be located.

Byron R. White:

You’re not suggesting that Crest Street and the state highway department were not antagonists in these discussions?

Lacy H. Thornburg:

You know, I don’t think that you would say that any of these folks were antagonists.

They were… they had different ideas as to how to work this out, Your Honor.

But they came… this is an excellent example of voluntary dispute resolution with the involvement of a court.

Byron R. White:

Right, right.

Lacy H. Thornburg:

Because they couldn’t have done it in a court proceeding.

Byron R. White:

Well, I know.

There wouldn’t have been anything to resolve if there hadn’t been differences of opinion.

Lacy H. Thornburg:

Oh, difference of opinion, sure.

But not–

Byron R. White:

Voluntary dispute.

So there was a dispute between Crest Street and the Department?

Lacy H. Thornburg:

–Yes, Your Honor.

Thank you, Your Honor.

William H. Rehnquist:

Thank you, Mr. Thornburg.

We’ll hear now from you, Mr. Lazarus.

Richard J. Lazarus:

Mr. Chief Justice, and may it please the Court:

Respondent’s claim for attorney’s fees fails, on our view, for two principal reasons.

First, their claim misapprehends the role of private enforcement in Title VI.

Because of Title VI’s inherently consensual basis, Congress fashioned an administrative enforcement scheme for Title VI different than that provided for in other civil rights laws, such as Title VII.

To best achieve the purposes of Title VI, Congress chose not to confer upon persons claiming discrimination the status as parties in the administrative enforcement scheme; and consequently, Section 1988 does not apply to their activities in that setting.

The second defect in respondent’s claim is that it rests on an unduly expansion construction of the term 1988.

They claim that agency investigations and informal negotiations urged on by the federal agency constitute proceedings to enforce Title VI within the meaning of Section 1988.

We do not believe that Congress intended such an expansive meaning for the term.

Of the two defects in respondent’s claim, the more troubling to the United States is the first.

And that is, their misapprehension of the role of private enforcement in Title VI.

Title VI’s nondiscrimination mandate is uncompromising, yet simultaneously, it’s fragile.

It depends, therefore, for its ultimate accomplishment, on the maintenance of a bilateral relationship between the federal agency and the recipient of federal funds.

Unless that relationship remains intact, Title VI’s nondiscrimination mandate is frustrated and becomes meaningless.

We believe for this reason Congress established an administrative enforcement scheme in Title VI notable in two primary respects: first, the lack of party status for persons claiming discrimination; and second, a heavy dependence on voluntary means of resolving charges of discrimination as reflected in the statutory language, 42 USC 2000d-1, which refers to the words of voluntary meanings of resolution.

Richard J. Lazarus:

We think that application of Section 1988 would undermine the Congressional scheme.

Federal recipients might be less likely to participate in the informal process.

Or, even if they were willing to participate, less willing to compromise their position, for fear of opening themselves up to liability for attorneys’ fees.

Sure, in other settings, it might be said that the threat of imposition of attorneys’ fees might promote settlement.

But in Title VI, it also increases the chances that the recipient will circumvent, indeed, frustrate Title VI’s mandate by decline of receipt of federal funds.

Indeed, the absence of attorneys’ fees in the informal process encourages the recipient to settle a case in that process rather than waiting.

The balance, we agree, is a difficult one to strike.

We believe the language and structure of Title VI, in 602 and 603 of the statute, suggest that Congress intended to err on the side of informality, at least in the initial stages of agency enforcement.

Congress determined, we believe the language reflects, in contrast to Title VII, Congress determined that a more formal role for respondents, persons claiming discrimination in an administrative setting, would impeded and not further.

In effect, Congress erected a safe harbour within Title VI to allow for the promotion of voluntary settlement in informal negotiations.

Sandra Day O’Connor:

Mr. Lazarus, if the parties had not reached total agreement, and litigation had been proceeded with the counsel, would attorneys’ fees be available for any portion of the work done in the administrative proceeding under Webb?

Richard J. Lazarus:

They might be.

The analysis would change.

They would not automatically be entitled, because those activities would not have occurred in a proceeding to enforce.

But they would be entitled to the extent that the effort they spent in those activities was reasonably expended on the litigation.

Sandra Day O’Connor:

Under the holding in Webb; that kind of approach?

Richard J. Lazarus:

Precisely.

Under the second half of the holding in Webb.

Essentially looking for the incorporation–

Sandra Day O’Connor:

Do you think that your approach is likely to cause people to file more lawsuits, then, to make sure that they have that as a means of getting attorneys’ fees, rather than settling these things informally?

Richard J. Lazarus:

–We don’t think so.

Because there’s no clear incentive to just file a preemptive lawsuit at the outset.

For instance, in this case, if a lawsuit had been filed at the outset, at the same time the administrative complaint had been filed, under our analysis they still would not be entitled to attorneys’ fees.

Filing a lawsuit changes the analysis, but it wouldn’t change the result.

You would still have to look to see whether the lawsuit was the catalyst for the agreement reached.

In this case, the catalyst for the agreement reached was the administrative process, and would not have been a lawsuit.

So absent an incentive to just go ahead and file a preemptive lawsuit, because it wouldn’t change the result, we don’t believe that people would necessarily file those lawsuits.

And if they did, they would be going against, in certain respects, the best interests of their client, which would be to participate in the informal administrative process, and to achieve, as respondents did in this case, an agency preliminary finding of reasonable cause, which no doubt helped considerably in the negotiation process.

Thurgood Marshall:

I don’t understand how you encourage people to use the administrative process, and then deny them money.

Richard J. Lazarus:

Well, encourage… to use the administrative process… provided them with relief.

Richard J. Lazarus:

And that is ultimately what I presume that they’re seeking.

Thurgood Marshall:

I’m talking about their attorneys’ fees.

Richard J. Lazarus:

Attorneys’ fees are only necessary… entitled in the Congressional scheme… Congress could have passed a statute, Section 1988, a rule which said that whenever you do anything which modifies the behavior of another in a manner which furthers the policies of Title VI, you’re entitled to fees; but they drew a line.

Thurgood Marshall:

I can think of three or four other hundred things that could have.

I’m talking about what it did.

Richard J. Lazarus:

And here it drew a line, and it required that there be an action or proceeding to which the person complaining of discrimination–

Thurgood Marshall:

Well, isn’t it a proceeding?

Richard J. Lazarus:

–No, we believe it is not a proceeding.

Thurgood Marshall:

Well, what is it?

Richard J. Lazarus:

Here, it was merely an informal process within the agency.

Thurgood Marshall:

Informal process is not a proceeding?

Richard J. Lazarus:

It’s not a proceeding to which they were a party.

Thurgood Marshall:

It didn’t say, a proceeding to which they were a party.

It said a proceeding.

One word.

Richard J. Lazarus:

Section 1988 says that there has to be–

Thurgood Marshall:

In order for you to prevail, don’t we have to find that this was not a proceeding/+/.

Richard J. Lazarus:

–No, in order for us to prevail, you have to find that they were not… it was not a proceeding to enforce Title VI with which… in which they were a party that prevailed.

And we do not believe they were a party.

And we also do not believe it’s a proceeding.

I see that my time is up.

William H. Rehnquist:

I think you can go until the red light.

Or are you reserving?

Richard J. Lazarus:

Reserving time for Mr. Thornburg’s remarks.

William H. Rehnquist:

Okay, thank you, Mr. Lazarus.

Harry A. Blackmun:

–May I ask one question?

Richard J. Lazarus:

Yes.

Harry A. Blackmun:

How do you define a proceeding?

Richard J. Lazarus:

A proceeding, in our view, within 1988, would require more indicia of formality, such as an adjudicatory proceeding.

He would believe that in Title VI there is one activity which constitutes a proceeding, and that is, the adjudicatory proceeding between the federal agency and the recipients if the federal agency is considering the cutoff of federal funds.

Richard J. Lazarus:

Of course, under the statute and implementing regulations, the respondents would not have been a party to that proceeding, which confirms–

Harry A. Blackmun:

Well, wholly apart from not being a party, I’m curious on how you define a proceeding to exclude what happened here.

Richard J. Lazarus:

–It requires more indicia of formality.

Such as a hearing with witness, adjudicatory hearing.

I think the Equal Access to Justice Act provides a good touchstone to what would be a proceeding.

The recipient is entitled to some notice that it is now participating in a setting where the controversy has reached, we believe, a sufficient stage of concreteness, that attorneys’ fees may be liable.

At some level, it’s a matter of fairness.

And we believe Congress drew the line.

William H. Rehnquist:

Thank you, Mr. Thornburg.

We’ll hear now from you, Mr. Calhoun.

Michael David Calhoun:

Mr. Chief Justice, and may it please the Court:

Section 1988 provides for prevailing party to recover attorney’s fees in, quote, any action or proceeding, end quote, to enforce a provision of one of the laws specified in Section 1988.

In particular, Title VI is one of the laws particularly set out in Section 1988.

Plaintiffs in this case sought, and recovered on remand from the Court of Appeals below, fees for representation in a federal administrative proceeding, and a related court action, in which they did enforce their rights under Title VI.

Antonin Scalia:

Mr. Calhoun, while we’re on the text of the act, it doesn’t say that you’re entitled to fees with respect to any action or proceeding.

It says, in any action or proceeding to enforce a certain number of provisions, among which is not 1988.

In such an action or proceeding, the court, in that proceeding, may award reasonable attorneys fees.

Now, it is possible, when there is an appeal from a Title VII denial, or even from denial of some action under Title VI, perhaps even the very action at issue here, where there is an appeal to the court from that, one could regard that as being one entire proceeding.

So that the court, in that proceeding, could award attorneys’ fees not just for the participation in court but even for the participation at the administrative stage.

But this suit before us here is not an action or proceeding to enforce a provision of Sections 1981, 1982, 1983, 1985 and 1986.

It just isn’t.

It’s a totally separate proceeding to get attorney’s fees under 1988.

Michael David Calhoun:

First of all, I want to make sure I understand the question.

The defendants in this case have argued that the statutory language saying that the court is to make the award of the fees indicates an intent by Congress to exclude fees for administrative proceedings.

Antonin Scalia:

No, that’s not the argument I’m suggesting.

What troubles me is that the statutory language clearly envisions that it is the court in the action or proceeding that can award the fees.

And we are not… or the courts below were not… the court in an action or proceeding to enforce 1981, 82, 83, 85 or 86.

They were a court in a proceeding to get attorney’s fees.

Michael David Calhoun:

This same issue came up in the case of New York Gaslight Company v. Carey, where the issue was, can you get fees in an independent action to recover fees?

And there the Court explicitly stated that it would be utterly anomalous, and contrary to the intent of Congress, to say that if you go through the administrative proceeding and you win and then don’t have to go to court, you get no fees; but if you go through the administrative proceeding and lose and have to go to court, then you can get fees.

Michael David Calhoun:

The unsuccessful administrative complainant gets fees, while the successful one is denied that.

I would note that the very language regarding that was cited with approval by this Court unanimously in the subsequent case of White v. the State of New Hampshire Department of Employment Security.

Antonin Scalia:

Why is that so anamolous?

Doesn’t it happen all the time under the Equal Access to Justice Act?

If you hire an attorney, got to the agency, negotiate very actively with the agency to get what you want; the agency finally says, okay, you have it, you’re not entitled to your attorney’s fees.

But if the agency says no, and then you have to sue the agency, you are entitled to attorney’s fees.

Doesn’t it happen all the time whenever… you can’t avoid that problem under any system of attorney’s fees?

Michael David Calhoun:

In this case, the threshold of formality was reached.

And I think it’s important to clarify the record of what did happen here.

When the defendants proposed this freeway, initially we did as any counsel would; we informally approached them and said, will you change the design?

Will you provide benefits to mitigate the impact?

After we had contacted them, the record shows they continued with the same design, which would totally displace this low income black community; and in terms of mitigation efforts, their relocation report, which was attached to the administrative complaint, showed that there rehousing plan was to use vacancies that they thought would exist in public housing sites scattered around the city.

That was the starting point when the administrative complaint was filed in September, 1978.

They cast the idea, and would like you to believe, that everybody was in agreement.

No adversarial position here.

These were extensive adversarial proceedings.

John Paul Stevens:

May I ask you, Mr. Calhoun: The complain you refer to was filed before the Federal Department of Transportation; is that correct?

Michael David Calhoun:

That’s correct.

John Paul Stevens:

Did the Federal Department of Transportation ever enter any formal orders in that proceeding?

Michael David Calhoun:

They issued a preliminary finding stating that… in effect, they issued a probable cause determination equivalent to that of–

John Paul Stevens:

And asked the parties to talk to one another about a settlement.

After that, did they enter any formal order?

Michael David Calhoun:

–They urged the parties to conciliate and that the parties did–

John Paul Stevens:

I know they urged them.

But my question is, did the Department of… Federal Department of Transportation enter any final order in what you describe as a proceeding?

Michael David Calhoun:

–No, the proceeding was determined… was terminated by the complaints withdrawing their complaint, which was explicitly the quid pro quo in the final settlement document.

Just as it’s done frequently in the EEOC context.

William H. Rehnquist:

Well, was there a final settlement document before the DOT… which was approved by the DOT?

Michael David Calhoun:

The DOT accepted the withdrawal of the complaint after the plaintiffs and defendants entered into a formal settlement document.

The defendants in this… it applies both to the court and the administrative proceeding… the defendants did… we would have preferred as plaintiffs to have had the order… either an order of the court or the agency to come back for contempt.

Michael David Calhoun:

The defendants resisted that, and we agreed to their position, because of the extensive duties, and complicated duties, they undertook in this mitigation plan, which sets out in some 15 pages–

William H. Rehnquist:

What you’re saying is that the settlement agreement was not approved by the DOT; is that right?

Michael David Calhoun:

–It was, and that they then accepted withdrawal of the complaint and termination of the proceeding upon execution of the settlement agreement.

I think the settlement agreement reflects… and the whole negotiations between the parties reflect… that this settlement agreement was essential to ending the administrative proceeding.

William H. Rehnquist:

Who were the parties to the settlement agreement?

Michael David Calhoun:

The parties… there were three parties… there were three entities that signed the settlement agreement: the plaintiffs, the defendants, and the City of Durham.

William H. Rehnquist:

And was that then submitted to the DOT for its approval?

Michael David Calhoun:

It was submitted to DOT saying, we have reached this agreement and therefore we are withdrawing our complaint, and there was–

William H. Rehnquist:

And what was DOT’s response?

Michael David Calhoun:

–There was no objection, and the complaint was–

William H. Rehnquist:

But there was no approval or ratification either?

Michael David Calhoun:

–That’s… no explicit approval in terms of–

William H. Rehnquist:

Well, was there implicit approval?

Michael David Calhoun:

–Yes.

If they’d been allowed the complaint to be withdrawn?

William H. Rehnquist:

Well, is this something that’s quite difficult to get the DOT to do, to allow a complaint to be withdrawn.

Michael David Calhoun:

I don’t have experience in other cases to know.

But I would say, this situation is the same as would occur in EEOC proceedings, which this Court has held, you are entitled to fees for administrative representation.

For example, in the statutory scheme of EEOC, North Carolina, for example, is a nondeferral state.

If this had been in the Title VII context, it would have proceeded exactly the same way.

William H. Rehnquist:

Except under… you would have had to go to the state agency.

Michael David Calhoun:

North Carolina is a nondeferral state, so there is approved state agency.

So in North Carolina you would file a complaint with the EEOC, just like we filed a complaint with the DOT.

The essence of the dispute resolution would be conciliation.

And they would urge the parties to conciliate.

And typically… and I have done this myself… when there is a successful agreement, part of the agreement is to withdraw the complaint from EEOC, and that is typically approved.

But this Court has said, you would get fees there.

William H. Rehnquist:

Isn’t it true, Mr. Calhoun, under Title VII, whether a deferral or nondeferral state, you must go to the agency before you can go to court?

Michael David Calhoun:

Yes, and–

William H. Rehnquist:

And wasn’t that part of the reasoning of our opinion in New York Gaslight, was that the mandatory nature of the administrative proceeding is a prerequisite to court action?

Michael David Calhoun:

–It was part of the reasoning in Carey, but it was a different issue in Carey.

In Carey, the plaintiff prevailed totally under state law.

As in Carey… Chief Justice, you and Justice White, dissented, and referred with approval to Judge Mulligan’s decision in the Court of Appeals.

His dissent there went to the issue of, those were not federal rights.

Just like in Webb, the proceeding did not concern federal rights.

As Justices Blackmun and Brennan have pointed out explicitly in Webb, the issue of whether a proceeding is mandatory or optional goes to whether or not it is a proceeding under one of the titles specified in Setion 1988.

It doesn’t go to the question of whether or not it is a proceeding.

In this case there is no question that this was a proceeding to enforce Title VI.

The administrative–

William H. Rehnquist:

In your view, there’s no question.

But your opponents certainly question it.

Michael David Calhoun:

–They would say, quote, it’s not a proceeding.

0 xxx.

But they would contest that the purpose of what we were doing was to enforce Title VI.

This Court has looked at, both in Webb and in Carey, two separate issues.

It’s not: Is it a proceeding?

In fact, implicit in all this Court’s decisions regarding recovering fees for administrative representation, it has been implicit, and the Court has rejected on several occasions, the argument that the word 1988 does not include administrative proceedings.

In Webb and in Carey, the issue was, was that proceeding one to enforce one of the rights set out in the attorney’s fees statute?

That’s also shown by this Court’s decision in Robinson… in Smith v. Robinson.

That was a case under the Education of the Handicapped Act.

There you found that the proceeding, the administrative proceeding, was mandatory.

But it was mandated by a nonfee statute.

So even though it was mandatory, the Court held that you could not get fees for representation there.

Because the issue was not, is it optional or mandatory; the issue was, is it a proceeding to enforce the rights that Congress enacted?

And Congress decided it should be accompanied with an attorney’s fee award.

John Paul Stevens:

Mr. Calhoun, could I ask you a question?

A great deal of importance, as I understand it, attaches to the fact that you actually did file a complaint with the Federal Department of Transportation which precipitated all of this.

Supposing instead of filing a formal complaint, you had made known more informally… written them a letter, and said, we think a violation is occurring here.

And they said, okay, we’ll take a look at it.

But you hadn’t complied with any formal regulations.

John Paul Stevens:

They looked at it and asked you to do just exactly what you did.

And everything else followed the same.

Would you be entitled to fees?

Michael David Calhoun:

There has to be a threshold requirement of a proceeding.

And here–

John Paul Stevens:

And it’s the filing of the complaint?

Michael David Calhoun:

–It’s the filing of a complaint.

Just as the threshold in litigation is, between informally complaining to a party and filing a complaint.

The filing of that complaint triggered a process, and it also triggered legal rights for the complaint.

John Paul Stevens:

But did it trigger proceedings before the Department of Transportation?

Michael David Calhoun:

Yes.

And the proceeding was, to investigate, first of all, and determine whether there was probable cause; which they did.

This wasn’t a case where we filed the complaint, and the next day, they turned around and changed their practices.

Quite to the contrary.

A year and a half elapsed between the time we filed the administrative complaint and the administrative agency issued its finding of a Title VI violation.

In the interim the agency had met–

John Paul Stevens:

Finding of a Title VI violation?

Michael David Calhoun:

–A preliminary finding of… they–

John Paul Stevens:

A probable cause finding, wasn’t it?

Michael David Calhoun:

–The wording used in the letter sent certified mail, return receipt requested, to the secretary of the state Department of Transportation was that they made a preliminary finding that a violation of Title VI would occur if the road was built in this manner.

The… first of all, on the proceeding, the defendants are turning on its head the Congressional preference for conciliation.

These points are clear: first, that Congress intended, by enacting Section 1988, to provide attorney’s fees to victims of civil rights violation; second, it is also extremely clear from both Congress as this Court that there is a strong preference for resolution or conciliation.

The legislative history of 1988 specifically states that Congress thought that a fee claimant should not be penalized for reaching a settlement.

It would serve no public policy for… to require a fee claimant to go through a court hearing.

The legislative history is explicit to say that if, after filing a complaint, the party changes its practices, that a fee recovery would still be proper.

Congress has addressed this issue.

So from the two points that Congress intended for victims of civil rights violations to recover fees; and second, that they encouraged and went out of their way to urge that these disputes be conciliated; how does it follow that Congress intended to deny fees for conciliation?

John Paul Stevens:

Would it make some sense to say that if the agency gives you the relief that you want, you don’t get fees; if they deny it, and you later get it in court, in addition to paying court costs, as part of the costs, which is the way the statute reads, as part of the costs in that proceeding, you will also get your administrative costs?

Isn’t that a thoroughly rational scheme?

It encourages the agency to give you what you’re entitled to at the administrative stage, because if it doesn’t do so and is forced to do so by a court, you’re going to pick up your fees.

John Paul Stevens:

Otherwise, you don’t get your fees.

Michael David Calhoun:

This Court considered that exact same argument in Carey, and rejected it under Title VII–

John Paul Stevens:

No, Carey involved the same proceeding.

It was not a simple proceeding for attorney’s fees.

In Carey, this Court was reversing the agency’s denial… or the lower courts were… reversing the agency’s denial of the relief, weren’t they?

In a free-standing action for attorney’s fees.

Michael David Calhoun:

–In Carey, I would not that this case is in virtually the same position procedurally as Carey, and as a case cited in the legislative history in the House report.

And in all cases, fees for administrative proceedings were granted.

In Carey, the party filed an administrative complaint.

And then, near the end, near the very end of the administrative process, they filed a federal court action.

Before anything was done in the federal court action, they received all of the relief that they had asked for in the administrative forum.

But the issue… the substantive issue was resolved in the administrative forum.

And this Court awarded fees.

And that follows.

In the House report on Section 1988–

John Paul Stevens:

The federal court action was dismissed, because the defendant had agreed to abide by the state ruling; isn’t that true?

In Gaslight?

Michael David Calhoun:

–In Gaslight, that’s correct.

Byron R. White:

And then… but the suit nevertheless was allowed to continue for the purposes of attorney’s fees?

Michael David Calhoun:

That’s correct.

The same thing happened–

–And this Court said that a separate suit for attorney’s fees was accepted… acceptable, didn’t it, or not?

It did explicitly say that in Carey.

And then it referred, in a unanimous opinion of this Court subsequently, in the case of White v. the New Hampshire Director of Employment Security, it stated with approval, quoted from Carey, an independent action would be permitted.

But even if a related court action is required, as the Court of Appeals found in this case, there was such an action.

Now the defendants have put this gloss of friendliness on everything.

But this was… we start from very adversarial positions.

And we end up, through this process, at a result far from what defendants originally offered.

Defendants started out offering not to change their plans and provide no mitigation plan.

The final result is, the defendants substantially modified their highway plan, so to preserve the community, and out of pocket spend more than $5 million to improve this community and mitigate the impacts of the road.

Michael David Calhoun:

The magnitude of that settlement indicates the strength of the civil rights claims that we had here.

In terms of the position of the court proceeding here vis-a-vis the administrative proceeding, we reached, in the Spring of 1982, a framework for future negotiations.

Specifically, the major breakthrough was the DOT for the first time said they would discuss last-resort housing.

No enforceable agreement was entered until after the court action and the motion to intervene in this case had been filed.

At the time we moved to intervene into ECOS, the plaintiffs had no enforceable agreement with the defendants.

Furthermore, it is clear that we were parties to the ECOS action.

Sandra Day O’Connor:

Well, now, the motion to intervene was denied, though, wasn’t it?

Michael David Calhoun:

The motion to intervene was not explicitly ruled on.

But we were made parties to the final judgment.

And among other things, that final judgment dismissed with prejudice our Title VI claim.

If were parties, how could it dismiss with prejudice our claims?

William H. Rehnquist:

But it referred to you, I thought, as an applicant for intervention?

Michael David Calhoun:

I think that may be the label on our signature, but it… the substance of that–

William H. Rehnquist:

The substance of what?

Michael David Calhoun:

–Of the order, of the consent judgment, explicitly dismisses claims with prejudice.

And this issue was clarified, I think, in the Court of Appeals below.

There, Chief Judge Winter asked defendants’ counsel, he said, what if the plaintiffs had turned around the next day and filed a Title VI court action?

Could they do it?

And defendants’ counsel, Mr. Richmond, argued the case there, said no.

Res judicata would bar that.

The only way that we could be barred, and the intent of the agreement was to bar and bury our claims.

And it did so.

The only way it can do that is if we were parties to that action.

From a practical standpoint, the position argued by defendant produces anomalous results.

First of all, as mentioned, they argue, if you succeed at the administrative proceeding, no fees whatsoever.

But if you went to court and… and without going at all to the administrative forum, if you went to court and did exactly the same thing as we did here, you would get fees.

Byron R. White:

Were you entitled to do that, by the way?

Michael David Calhoun:

I think at the time–

Byron R. White:

Could you have filed a Title VI suit?

Michael David Calhoun:

–At the time that we filed the administrative complaint, we believed that there was a substantial chance that it would be found that you had to exhaust that remedy.

Michael David Calhoun:

There were the Wilmington, Delaware cases, other cases, that held, as we’ve cited in the brief, that at that time it appeared that you might have to exhaust administrative remedies.

This Court, I believe, has clarified that question since then.

And we would say, it appears now that you do not have to exhaust administrative remedies under Title VI.

Byron R. White:

Under Title VI there is a private right of action that you can bring; is that right?

Michael David Calhoun:

This Court, as you know well, has considerably varying opinions on that issue.

But it does appear that the Court has held that there is a private cause of action under Title VI.

Byron R. White:

Which now could have been filed, at least under present law, you think, could have been filed immediately without filing any complaint before the agency?

Michael David Calhoun:

It now appears that way, although it appeared differently at the time we filed the administrative complaint.

The–

Byron R. White:

And I suppose if you filed a suit, and then went ahead with these private discussions, you could get attorney’s fees?

Michael David Calhoun:

–I think that’s clear.

The Solicitor General’s office has argued that somehow awarding fees here would cause an interference with the agency enforcement of Title VI.

First of all, as shown by Title VII regulations, the agency has complete control of these proceedings in terms of where they head.

And they can prevent any interference.

Second, in this case we’re talking only about the threshold requirement of the fee claimant.

Getting over this hurdle doesn’t mean you’re going to recover all your fees that you’ve requested.

You still have to show that your fees are reasonable, and for work that reasonably contributed to the result.

An administrative complaintant is simply not going to burn time that is not helping the proceeding because they know they’re never going to get fees for it.

There is no evidence here of any such interference.

In fact, the only evidence here is that without the plaintiffs’ active involvement, this enforcement of civil rights would simply have never occurred.

We also want to clarify on the party issue what our position is.

We don’t say that if you affirm this award of attorney’s fees, that means that every administrative claimant has to get fees.

This Court has repeatedly recognized the broad discretion of administrative agencies to determine how they will enforce their statutory duties.

Cases such as Florida East Coast Railroad, or Vermont Yankee Nuclear Power Plant.

The agency has very broad discretion.

But the flip side of that is, they did have the authority, there was no bar, to their involving us in this case as parties.

And they did so.

I think one of the most telling weaknesses of the defendant’s case is the lack–

Antonin Scalia:

Do I interpret that last remark to mean that if these regulations were eliminated, that if there were… if the agency were not obliged to and chose not to have such complaint procedures, your mere application to the agency would not suffice?

Michael David Calhoun:

–That’s clear.

Michael David Calhoun:

Yes, we agree with that.

The defendants in this argument, notably absent from their discussion, is, what does the language of the statute say, and what does the legislative history show.

Here the language used is, as this Court noted in Carey, the broad disjunctive: “any action or proceeding”.

Not only any action, not any mandatory action or proceeding, but any action or proceeding.

It’s noteworthy–

William H. Rehnquist:

But I don’t think you’re helped much by the language of the statute.

Because as Justice Scalia pointed out, the statute says that the court, in that proceeding, may award.

Michael David Calhoun:

–I think the same situation is in Title VII, upon which Section 1988 was explicitly modelled.

And in Carey this Court found that you were entitled to an independent action for fees.

William H. Rehnquist:

Well, the Court said that.

It was dicta, I think.

Michael David Calhoun:

And the Court… granted it was dicta, the Court reaffirmed that dicta, though, in White v. State of New Hampshire.

Byron R. White:

In another dictum?

Michael David Calhoun:

Yes.

But as we have explained, if a court action is required, it was present here in the ECOS action.

We wanted to submit the fees for determination in the ECOS action.

We asked the… we raised that with the defendants at that time.

They stated, no, let’s not do that for two reasons.

One, the settlement that we reached was contingent upon legislative acts by the City of Durham.

They had to promulgate and comply with statutory requirements to implement a redevelopment plan for this entire area.

They could not commit in advance to that.

And the settlement explicitly provided, if they didn’t do this, this was all void.

Second, the defendant said, we are a state agency, and it would be a lengthy process to come up with agreement and consent on the fees.

Let’s negotiate further.

And we did so.

And then after we could not reach agreement, we brought suit.

But the ECOS claim included a claim for fees, and when we signed that consent judgment, the judgment specifically reserved our right to bring a subsequent claim for fees.

We had that right in ECOS.

In the ECOS case it was dismissed without prejudice.

And that’s explicit in the consent judgment which we signed in ECOS.

Michael David Calhoun:

We could have brought it in ECOS.

There were various reasons why it was not done there.

But neither the court nor the defendant objected to our saving it for a later date, if it could not be resolved.

Byron R. White:

What was the ECOS action?

Michael David Calhoun:

The ECOS action was originally an environmental suit.

Byron R. White:

It was not a Title VI?

Michael David Calhoun:

That’s correct.

Byron R. White:

And that’s what the injunction was entered under?

Michael David Calhoun:

Yes.

Byron R. White:

And could you have gotten… you couldn’t have got attorney’s fees just for your success in getting in the injunction?

Michael David Calhoun:

No.

But the–

Byron R. White:

So how could the… when the injunction was withdrawn, you thought… you think… that that was an independent ground for your getting attorney’s fees for administrative services?

Michael David Calhoun:

–If an independent court action is required, if that anomalous result or practice is required, we did go to federal court on the merits here.

Antonin Scalia:

Well, it’s not just a court action.

It’s a court action to enforce those particular provisions of the United States Code set forth in Section 1988.

Michael David Calhoun:

And this… and through our intervention it did become that.

Because it dismissed with prejudice… the ECOS action dismissed with prejudice our Title VI rights.

If those rights were not before the court in ECOS, how could those rights have been dismissed?

In conclusion, Congress in the legislative history rejected–

Antonin Scalia:

Mr. Calhoun, may I ask one other question?

I think in answer to a question by Justice Scalia you indicated that your complaint was critical to your claim.

Is the letter of the Office of the Secretary of Transportation of February 20, 1980, also critical to your claim, in which they conclude that there might be a prima facie violation of Title VI?

Michael David Calhoun:

–We don’t think it’s essential to our claim.

Antonin Scalia:

You don’t.

Michael David Calhoun:

But we think it certainly bolsters the claim that this was no friendly get-together we had here.

John Paul Stevens:

You would have the same claim if they had responded to your complaint by just saying, well, we’re not sure whether there’s a violation, but we’d like you parties to try and negotiate a settlement anyway?

Michael David Calhoun:

They were dragged into this conciliation agreement.

They did not voluntarily change their ways after we raised this complaint.

William H. Rehnquist:

Thank you, Mr. Calhoun.

William H. Rehnquist:

General Thornburg, do you have anything more?

You have two minutes.

Lacy H. Thornburg:

If Your Honor please, unless the Court has additional questions, we have nothing further.

William H. Rehnquist:

Thank you.

The case is submitted.