Webb v. Board of Education of Dyer County, Tennessee

PETITIONER:Webb
RESPONDENT:Board of Education of Dyer County, Tennessee
LOCATION:Elstad’s Residence

DOCKET NO.: 83-1360
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 471 US 234 (1985)
ARGUED: Oct 29, 1984
DECIDED: Apr 17, 1985

ADVOCATES:
Charles Stephen Ralston – on behalf of Petitioner
S. Russell Headrick – on behalf of Respondents

Facts of the case

Question

Audio Transcription for Oral Argument – October 29, 1984 in Webb v. Board of Education of Dyer County, Tennessee

Warren E. Burger:

We’ll here arguments next in Webb against County Board.

Mr. Ralston, I think you may proceed whenever you’re ready.

Charles Stephen Ralston:

Thank you.

Mr. Chief Justice and may it please the Court:

This case presents for the Court a single issue, and that is whether or not attorney time expended before a civil rights action is brought under 1981 and 1983, Title 42 of the United States Code, is filed in federal court, work done before that filing, can that time be excluded from a fee award simply because the time was spent pursuing the same federal claim in an available state administrative proceeding.

Our position, Petitioner’s position, is quite simply that it should not and cannot be excluded, that it is awardable under the specific language of 42 U.S.C. Section 1988 and under the decisions of this Court that interpret that statute.

Our position is, first, that if that time, as we contend it was here, is reasonably expended, reasonably spent, then within the meaning of Section 1988 and this Court’s decision in Hensley versus Eckerhart, then it can be compensated for.

That is, it is chargeable to the defendant when the plaintiff prevails in his federal court action.

Warren E. Burger:

Could you have brought the proceeding in court without going into the administrative process?

Charles Stephen Ralston:

Yes, Mr. Chief Justice, we could have gone straight to the federal court, and that is true.

And the court below based their decision on the principle that, since it was not mandatory that the state administrative proceedings be exhausted and we did not have to go into federal court, therefore the time should not be compensated for.

Warren E. Burger:

Do you read the opinions of the courts as encouraging, even if they do not require, the exhaustion of administrative remedies?

Charles Stephen Ralston:

Your Honor, in the Patsy case, which held that exhaustion is not required, this Court pointed out that one of the concerns of Congress when it passed 1983 was to provide concurrent remedies in both state and federal courts.

So there’s certainly no intention of Congress or the decisions of this Court to discourage the going and utilization of an available state remedy, which is precisely the result of the decision below.

The result would be to tell to a potential plaintiff that, go straight into federal court, do not spend any time at all pursuing any other available remedy.

Go into federal court, because if you don’t you will lose any time you spend prior to going into federal court.

William H. Rehnquist:

Mr. Ralston, the district court’s memorandum as I read it refers to the state administrative proceeding as one before the County Board of Education of Dyer County, Tennessee.

Charles Stephen Ralston:

Yes, Your Honor.

William H. Rehnquist:

You say you were pursuing the federal claim before that, the County Board.

What’s the nature of that proceeding under Tennessee?

Charles Stephen Ralston:

Your Honor, we have reprinted in our brief, our main brief, in the appendix, pages 1a to 4a, the statute under Tennessee law which sets out the proceeding.

Now, that proceeding and what occurred before the Dyer County Board of Education followed that statute.

There’s a right to charges, there’s a right to have witnesses subpoenaed, there’s a right to be represented by counsel.

There’s a right to present the claims that the person has and have them considered by the Board.

And indeed, the statute even provides that if the teacher prevails the Board can award the teacher his costs.

So it is an administrative proceeding and a quasi-judicial proceeding.

William H. Rehnquist:

What are the standards for showing that you’re entitled to reinstatement?

Is it kind of a breach of tenure kind of thing?

Charles Stephen Ralston:

Certainly under the tenure act there is that.

You’d have the right to do that.

Charles Stephen Ralston:

If your rights under the Tennessee tenure law have been violated, you can present those.

But the statute does not limit what can be presented to the Board.

Section 512(4), which is at 3a of our appendix, states that:

“The teacher may present witnesses and shall have full opportunity to present his contentions and to support them with evidence and argument. “

William H. Rehnquist:

Is there any indication in this statutory language that a federal claim is contemplated?

Charles Stephen Ralston:

There is certainly no language that indicates that it could not be presented.

It simply says Mr. Webb’s attorney presented squarely claims arising under the Fourteenth Amendment to the Constitution, presented evidence to support the claim that racial discrimination was behind the attempted disciplinary action.

William H. Rehnquist:

Do you ordinarily expect a County Board of Supervisors to pass on constitutional claims?

Charles Stephen Ralston:

Well, Your Honor, it certainly is not the normal kind of case they’ll handle.

But to give an example, we said in our brief, the basic claim of Mr. Webb was that everything was fine in his employment until integration came and he, a black teacher, was assigned to teach in a predominantly white school and he imposed the same kind of discipline he had imposed throughout his career on a white student, and that was the reason why he was discharged.

Now, assume for the moment… and he presented evidence to support that claim.

Assume for the moment it turned out that indeed there was such a policy.

A document had appeared saying that a black teacher who disciplined white students should be discharged.

It’s inconceivable to me that the County Board would not have dealt with that claim and reinstated Mr. Webb.

William H. Rehnquist:

But they probably would have dealt with it under some principle of state law, rather than saying something was unconstitutional.

Charles Stephen Ralston:

Your Honor, the members of the County Board I would assume, as are all other state officials, are bound by oath to support the Constitution of the United States and to conform their activities to that Constitution.

William H. Rehnquist:

I don’t really claim to know anything about Tennessee proceedings.

Are you familiar with the way County Boards in Tennessee conduct their affairs, whether this is a typical claim brought before them?

Charles Stephen Ralston:

Your Honor, I am not.

I am familiar with the record in this case, and in this case the claims were squarely presented, listened to.

Most of the testimony before the Board dealt with… most, at least half of it, dealt with the racial discrimination claim which was presented under Constitutional terms.

Byron R. White:

I would find it rather strange to have the constitutional issues presented to and passed on by an administrative agency or a County Board.

For example, what if the County Board had concluded that this action comported entirely with Tennessee law, it violated nothing in Tennessee law.

We’ve had a hearing on it and everybody turned square corners.

Do you think it would have entertained a constitutional argument?

Charles Stephen Ralston:

Your Honor, if given the hypothetical I’ve given, if it had emerged that in fact there was a policy to discharge black teachers in violation of their rights to be free of racial discrimination, I would hope that they would entertain such a claim and that they would not allow such a discharge.

Byron R. White:

But it certainly could hardly comport with Tennessee law, then, could it?

Charles Stephen Ralston:

It might not have.

But it was presented as a federal constitutional claim.

But the issue again… again, the facts of this case is the claim was presented, it was heard by the Board, it was not excluded, evidence was not excluded.

Charles Stephen Ralston:

And indeed, reading the transcript, it even indicates it was objected to.

And the question again is whether it was reasonable to attempt to have those rights vindicated by the County Board before going straight into federal court.

Now, we pointed out that the judge in the district court excluded absolutely all time spent prior to the actual sitting down and drawing up of the complaint to go into federal court, the 82.8 hours as shown by the joint appendix.

Pages 39 to 47 set out the time.

But everything prior to the work done in August of 1977 to actually prepare to go to federal court was excluded.

And in that time such things were done as to investigate the case, talk to witnesses, talk to the client, to in fact in effect have depositions of two witnesses, at least two witnesses of the defendant… all time that would be compensable if it had been done in connection with the federal court action.

Yet it’s excluded, absolutely simply because that work was done in connection with the state administrative proceeding.

And again, our contention is it was reasonable to do that work and in fact it was the type of work that anyone would have done if he had gone straight into federal court and prosecuted his federal claim.

Byron R. White:

Is there any provision for judicial review of the County Board’s decision at the end of this sort of an administrative process?

Charles Stephen Ralston:

Yes, Your Honor.

Under Tennessee law review can be sought in the Tennessee courts.

Byron R. White:

And I take it, then, that your constitutional claim was rejected by the County Board?

Charles Stephen Ralston:

They simply issued a short decision saying–

Byron R. White:

Well, they certainly didn’t grant it.

Charles Stephen Ralston:

–They certainly didn’t grant it.

Byron R. White:

So ordinarily you would say they rejected it.

Charles Stephen Ralston:

Yes.

Byron R. White:

So why didn’t you take it to the Tennessee courts?

Charles Stephen Ralston:

Well, at that point, Your Honor, we had the option of going either to federal court or to state court, and the counsel decided that they would prefer going to federal court at that point, now that they were going to have to go to court.

Byron R. White:

You don’t think that… you don’t think that if you don’t appeal a county commissions’s judgment, that doesn’t foreclose you from another judicial action?

Charles Stephen Ralston:

No, Your Honor, we would not say… no, we take the position that it doesn’t.

This Court has held–

Byron R. White:

There’s no administrative res judicata?

Charles Stephen Ralston:

–Not under a claim under 1981, I would urge not.

Byron R. White:

Why not?

Charles Stephen Ralston:

In the same way that this Court has held that in a Title VII case the fact that one goes to–

Byron R. White:

Title VII requires you to go to the court and specifically leaves the court open after you’ve resorted to that.

Charles Stephen Ralston:

–Yes, but 1981 and 1983 also allow an independent federal claim to be brought.

I might just say that this argument was never made in the court below, that this had some preclusive effect.

Byron R. White:

It may not, it may not.

Byron R. White:

But if you had taken this… if you had taken an appeal from the county commission’s judgment into the Tennessee courts and you had lost there, you could not come over to federal court?

Charles Stephen Ralston:

Well, as I–

Byron R. White:

Could you?

Charles Stephen Ralston:

–Well, if the federal constitutional claims had been raised and had a final decision from the state courts, yes.

If they were not raised, then it would depend on Tennessee law, as I understand the decisions of this Court.

Byron R. White:

Well, if they weren’t raised you weren’t entitled to attorneys’ fees.

Charles Stephen Ralston:

If they weren’t raised in state court, yes.

But if they’d been raised in the administrative process and then gone to state court without raising them, whether we could get into federal court would depend on Tennessee law.

But if we had gone to a Tennessee court, raised them and had lost, then that would have been preclusive.

William J. Brennan, Jr.:

Mr. Ralston, did any of the proceedings in the administrative agency get into the federal court suit in any way?

Charles Stephen Ralston:

Yes, Your Honor.

Our response… at some point during the litigation, the transcript of the proceedings before the Board of Education were filed, introduced by the Plaintiff.

It was subsequent to that that the case was settled.

William J. Brennan, Jr.:

Did those proceedings have any relevance to the settlement at all?

Charles Stephen Ralston:

Well, the record is not clear, although in the hearing on counsel fees the district court stated that he had in fact read those proceeding.

He did not elaborate, but he did discuss that–

William J. Brennan, Jr.:

Were they stipulated into evidence, so that the facts were brought before the court by way of stipulating that record in?

Charles Stephen Ralston:

–It was introduced as an attachment to an affidavit by counsel for Mr. Webb attesting to their accuracy.

The case didn’t get to the point where they were stipulated into evidence because the case was settled prior to trial.

William J. Brennan, Jr.:

Oh, I see.

Charles Stephen Ralston:

They were put in at a point where motions for summary judgment were pending before the district court relating to a number of issues.

None of those motions were ever resolved because the case was settled.

Sandra Day O’Connor:

Mr. Ralston, may I ask whether by relying on Carey you’re asking us to hold that Section 1988 creates an independent action for attorneys’ fees for time spent in administrative proceedings, or whether you are asking us to say that you can recover something for attorneys’ fees just to the extent you would be able to do so anyway, like for discovery conducted before a federal action?

It isn’t clear to me what you’re asking.

Charles Stephen Ralston:

In the present case, the Court only need reach the second point, because in this case we had an action filed in federal court to raise the merits of the claim, there was no final disposition in the state administrative processes.

So this case itself presents the claim that the time spent in the administrative process can be compensated because it was reasonable time spent in connection with the federal Court action.

Sandra Day O’Connor:

And what do you think about the other question?

Charles Stephen Ralston:

The other question… Carey did hold, at least in the context of a Title VII case, that an action could be brought solely for the purpose of obtaining counsel fees.

And we would think such a result would be consistent with Carey.

Alternatively, as we pointed out, an action might lie in state court under Maine versus Thiboutot to recover counsel fees if the person were fully successful with regard to his federal constitutional claim in the state administrative proceeding.

Charles Stephen Ralston:

And that is not the case here.

William H. Rehnquist:

A moment ago, in answer to Justice O’Connor’s question, you said there had been… at least I understood you to say that there had been no final disposition of the state administrative proceeding.

Charles Stephen Ralston:

I’m sorry, Not in favor of the plaintiff.

The disposition had been to–

William H. Rehnquist:

Against the plaintiff.

Charles Stephen Ralston:

–Against the plaintiff.

William H. Rehnquist:

Right.

Charles Stephen Ralston:

I’m sorry, I did not mean to indicate otherwise.

John Paul Stevens:

May I ask you a factual question, Mr. Ralston?

I understood you to say earlier that the court allowed you fees from the period of August ’78 forward, and I looked at pages 46 and 47 of the transcript and I wonder if you meant ’78 or ’79, because it–

Charles Stephen Ralston:

’79, I’m sorry.

I misspoke.

From 3-7 August ’79, preparation and forwarding of the complaint in federal court, that was the time allowed.

Everything else before that was excluded.

John Paul Stevens:

–And is it your contention that everything that precedes that, it was reasonably necessary in order to prepare and prosecute the federal case?

Charles Stephen Ralston:

That is our contention.

Now, the district court never reached the question whether there were particular parts of that 82.8 hours that might or might not have been reasonably spent.

So there was never any decision, and the Respondents’ main claim was none of it could be compensated for because it was done in connection with the administrative proceeding.

They did raise some general objections to a couple of items.

But the issue of whether every minute of that time should have been compensated for was never reached.

Ordinarily in these cases, the district court will look at the time–

John Paul Stevens:

Of course, the district court did something else that smacks of a compromise in a way.

He gave you, I think, $120 or $125 an hour for all that time, and then added a 25 percent amount for it.

And I guess your rate, your going rate, was only… was a lesser amount at the beginning of the period, was it not?

Charles Stephen Ralston:

–It’s my understanding that the rate at the beginning of the period may have been less.

But he gave the current rate for the time spent in federal court and then enhanced it by a multiplier.

Now, this case was decided before Blum versus Stenson.

John Paul Stevens:

Right.

Charles Stephen Ralston:

And the Respondents did not cross-petition on that issue.

So it really is not before the Court at all.

Charles Stephen Ralston:

I just might point out that, even with that multiplier, since the court excluded far more than half of the hours requested, the total amount given was still substantially less than what would have been given if that 82.8 hours had been included and no multiplier given at all.

John Paul Stevens:

Right.

But you’re in effect, your legal position here is that at least some of time should have been counted?

You’re not necessarily claiming that every hour of the four or five years of negotiating with the school board was necessary for the lawsuit?

Or are you saying it’s more or less like Carey, that it was all essential?

There’s quite a difference in theory.

I guess I’m repeating Justice O’Connor’s question in a way.

Charles Stephen Ralston:

Well, our contention would be, if we were in the situation in district court to justify all those hours, that they could be justified.

The district court–

John Paul Stevens:

As necessary to the federal litigation?

Charles Stephen Ralston:

–As necessary.

Now, the district court might say, well, some percentage wasn’t really related to the federal question and, using a Hensley type analysis, split some of it off.

But again, that was never done in the district court because of the district court’s ruling as a matter of law that none of it was compensable, period.

John Paul Stevens:

Well, he at least gave you the time it took you to write the complaint.

Charles Stephen Ralston:

Pardon?

John Paul Stevens:

He didn’t begin with the filing of the complaint, at least.

Charles Stephen Ralston:

Yes, he allowed us to prepare and write it.

But anything else was not allowed.

And as we’ve pointed out in our brief, the time spent in preparation to filing the investigation and talking to people is an important amount of time spent, and certainly a substantial amount of the time spent was very comparable to just what one would do through discovery.

This Court has pointed out, for example, in Chandler versus Rotabush that the time… the record of an administrative proceeding may be very useful to a court in sharpening the issues, limiting what happened.

And that certainly is, we’re arguing, we take the position, is the case here.

Again, the central point that we would make is that the lower courts here became focused in on the mandatory issue, and our position is that the statute does not say any mandatory proceeding.

It says any proceeding.

The fact that a proceeding is mandatory, it must be followed, certainly makes it reasonable to follow it, but it doesn’t follow the other way, that just because something need not be done it is not reasonable to do it and therefore compensable.

And as a matter of policy, to essentially penalize someone for attempting to enforce his rights before going to federal court would simply mean an increase in cases filed in federal courts and a much longer time spent in federal court than if this type of time were compensated for.

I’d like, if there are no further questions, I’d like to reserve the remainder of my time.

Warren E. Burger:

Mr. Headrick.

S. Russell Headrick:

Mr. Chief Justice and may it please the Court:

The Respondents would contend, in opposition to Petitioner’s assertion, that the issue in this case is not whether the time spent in the administrative proceeding can be excluded, but whether Congress intended to include within the purview of Section 1988, intended to sanction an award of fees for optional state administrative proceedings.

And we contend that when the language of the statute and the legislative history and the purposes behind Section 1988, as well as the substantive civil rights statutes for which fees are properly awardable, are considered, that this Court should affirm the judgment of the Court of Appeals.

S. Russell Headrick:

In this case, as we understand it, Petitioner has essentially advanced two arguments in support of his proposition that fees are properly awardable for optional state administrative proceedings under Section 1988.

First, the Petitioner contends… and this is what I call his reasonableness argument… that he filed an action in the federal court, he prevailed in settlement of the action, and therefore the only question left for resolution by the courts is whether time was reasonably spent.

If so, Petitioner contends Hensley versus Eckerhart compels an award of fees in the instant case.

We say that this argument basically fails for two different reasons.

In effect, what the Petitioner is requesting this Court to do is to view the state administrative proceedings and the federal district court proceedings as one unit of litigation, when in reality there are two independent legal procedures.

Warren E. Burger:

What would have been the situation under Tennessee law if he’d gone into the state courts and prevailed there?

Collect fees or not?

S. Russell Headrick:

No, sir.

No, Your Honor.

And as a matter of fact, since the issue was just raised in the reply brief of the Respondents, I’ve taken a look at Tennessee law, and the Tennessee Supreme Court has reaffirmed, most recently in 1979, Tennessee’s adherence to the American rule.

And there is no statute that I’m aware of that would authorize an award of attorneys’ fees had the Petitioner in this case followed the state judicial route and had appealed and won his case and won reinstatement and back pay.

John Paul Stevens:

Well, but is that true if he filed a 1983 action in the state court?

Could he not have filed the same action, based on federal law, but filed it in the state court–

S. Russell Headrick:

No, sir, not in the courts of the State of Tennessee.

John Paul Stevens:

–They don’t accept 1983 litigation?

S. Russell Headrick:

No, sir, not in the courts of the State of Tennessee.

It’s been held by the Tennessee Supreme Court in a case that arose about 15, 20 years ago that the courts of the State of Tennessee do not entertain Section 1983 actions.

That case has not been overruled to this day.

John Paul Stevens:

Is that cited in the briefs?

I missed it, I guess.

S. Russell Headrick:

No, it is not, Your Honor.

And unfortunately I do not have the citation of that case with me, and I’d be happy to supply that to the Court.

John Paul Stevens:

Do you have any question about whether that’s good law today or not?

S. Russell Headrick:

Well, I understand that there is some question under a footnote, I believe in the Martinez case, as to whether or not state courts are obligated to entertain Section 1983 actions.

But that’s still the law.

John Paul Stevens:

They’re not… I see.

S. Russell Headrick:

Yes, sir.

And we think that the fact that the administrative action is separate from the federal civil rights action was recently noted and supported by this Court’s opinion in Burnett versus Grattan, where this Court noted that the causes of action which Congress created in the federal civil rights acts are independent of other legal or administrative relief which may be otherwise available under state or federal law.

So therefore, we think that the Petitioner’s argument which seeks to view this as one unit of litigation ignores this fundamental distinction of federal law.

Second and probably more importantly, Petitioner’s argument jumps over the very statutory threshold issue which we view as presented by this case, and that statutory threshold issue is whether the optional state administrative proceedings were actions or proceedings, if you will, as that term is used in Section 1988.

S. Russell Headrick:

And we think that this Court’s decision in Hensley versus Eckerhart, read together with this Court’s decision in Carey, established that you have… that a prevailing party has to overcome the statutory threshold before you ever get to the question of reasonableness.

And we contend that New York Gaslight Club against Carey, where the issue is can you get fee for state administrative proceedings, establishes that the issue for determination before anything else is determined by the Court is whether those proceedings are actions or proceedings within the purview of the federal civil rights attorneys’ fee act.

And we think that Petitioner’s argument that seeks to jump over to the question of reasonableness ignores this very statutory threshold question which this Court established in New York Gaslight Club against Carey.

Sandra Day O’Connor:

Mr. Headrick, in a case in which a claimant files a state administrative proceeding and does urge the same grounds as he later urges in a federal civil rights action, and spends time preparing for that administrative hearing and doing what amounts to discovery for purposes of dealing with the hearing, and later in the federal civil rights action relies on some of that time and effort as part of his preparation for the federal claim in the federal court, is any of that time recoverable in your view?

S. Russell Headrick:

No, we do not think so, because the prevailing plaintiff, the applicant, has not made it over the statutory threshold.

And the reason why that is so is because the applicant, the applicant has chosen to pursue an administrative remedy which Congress has not seen fit to encourage resort to through Section 1983.

Sandra Day O’Connor:

Though certainly time spent for ordinary civil discovery would be recoverable, would it not, under Section 1988 for preparation time for the 1983 or 1981 claim?

S. Russell Headrick:

We have no problem with that.

Sandra Day O’Connor:

And if the work done is essentially the equivalent of discovery in the administrative proceeding, why should it not be recoverable?

S. Russell Headrick:

Well, as a general proposition it may should be discoverable.

But the question is did Congress intend by Section 1988 to authorize an award of attorneys’ fees for what I think stretches the point of being an action or proceeding to enforce the enumerated federal civil rights statutes.

And that’s our contention, that the Petitioner in this case has simply not made it over the statutory threshold of demonstrating that these proceedings are in fact an action or proceeding within the purview of Section 1988.

Harry A. Blackmun:

But certainly Congress indicated that they wanted 1988 to be broadly read.

S. Russell Headrick:

I don’t have any problem with that, with that as a general proposition, Justice.

Harry A. Blackmun:

As just a general proposition?

S. Russell Headrick:

Well, yes, and I think there’s other references in the legislative history–

Harry A. Blackmun:

Your view certainly provides a disincentive to pursue administrative remedies and to force everything right into federal court.

S. Russell Headrick:

–Well, of course, one of the problems that is incurred in this type of situation is that I don’t think you can equate the relief sought in the federal court with what the County Board of Education of Dyer County, Tennessee, was empowered to do with this plaintiff’s civil rights claim.

The only thing I think that the Dyer County Board of Education was empowered to do under Tennessee statute is merely to reinstate Mr. Webb and to give him back pay.

And the only thing that the County Board of Education would do would be to judge the validity of the charges leveled against Mr. Webb.

But in Mr. Webb’s or Petitioner’s federal civil rights complaint, he not only seeks a claim of race discrimination, he presents a claim of a million dollars in damages to his reputation which he says was incurred as part of this dismissal.

Byron R. White:

Well, is there any Tennessee law on whether or not administrative agencies or County Boards will entertain federal constitutional claims?

S. Russell Headrick:

Justice White, I certainly know of none.

I would tend to think that if Tennessee courts say that Tennessee courts should not–

Byron R. White:

Entertain 1983–

S. Russell Headrick:

–entertain 1983 actions, then the fair inference would be that, no, that administrative bodies would not.

Byron R. White:

–Let me ask you this.

Let me ask you this.

Isn’t there some law in Tennessee as to whether administrative agencies will entertain state constitutional claims, as well as the claims under the specific statutes that regulate… that set out the substantive standards for their work?

S. Russell Headrick:

I can’t address that as a general proposition, whether there is enabling legislation that says statewide all boards can.

Byron R. White:

Are there any kinds of decisions in your courts?

S. Russell Headrick:

No, sir, I’m not aware of those.

Byron R. White:

Or any custom of your administrative agencies?

S. Russell Headrick:

Well, I certainly know that in this particular case, from a review of the record even, although those points were made, I don’t think they were seriously considered.

Byron R. White:

Did you represent the Board?

S. Russell Headrick:

No, I did not.

The Board was represented by other counsel.

Byron R. White:

Well, was there any objection by counsel to entertaining these claims or to the introduction of evidence to support them?

S. Russell Headrick:

I don’t think there was specific objection to the argument of counsel concerning constitutional claim, and I’m not sure that there is a way to divide the evidence that Petitioner submitted.

But in any event, you do run into this problem, I think, of the fact that the relief sought in the federal court simply could not have been granted by the Dyer County Board of Education.

I don’t think Petitioner would contend that there’s any way that the County Board of Education could render a million dollar damage verdict, nor could it certify a class action which was sought in the instant case to vindicate the rights of all black children, all black educators within the Dyer County Board of Education, within that school system.

So we think the Petitioner has simply not crossed that statutory threshold.

Petitioner’s argument in the alternative appears to be that the word “proceeding”, which we view as the scope or threshold issue, can be construed to mean an optional state administrative proceeding.

And Petitioner relies on this Court’s decision in New York Gaslight Club against Carey for that proposition.

We think that if you consider… that if the Court considers the way it analyzed the problem in Carey, that the opposite result should obtain in this case.

In Respondents’ view, we contend that the underlying rationale of New York Club against Carey was that the statute which created the right to attorneys’ fees also required the Petitioner in that case… or the Respondent in that case… to exhaust the state administrative remedies.

And the underlying thought behind that was, if you do not award fees for these proceedings which the statute requires the party to undergo, then the party may decide, if he has to pay his own attorney, he might not advance what would ultimately be a meritorious civil rights claim.

In this case those considerations simply are not present.

As I think the Petitioner has conceded, there is simply no exhaustion requirement.

There is simply no part of the costs that federal law requires Petitioner to undergo in this case in order to vindicate his rights that was done in the Dyer County Board of Education hearings.

We would also contend that this Court’s observation in footnote 14 of Smith versus Robinson, recently decided by this Court, supports this application of Carey in the instant case.

In that case the Court… and this was cited in our supplemental brief… this Court drew that very distinction of Carey and Title VII on the one hand and Section 1988 and a 1983 claim which was not required to be exhausted.

And the Court’s conclusion in that case was that, since there was nothing in federal law that required the plaintiff in that case to pursue the administrative remedies, then he could have, just as Petitioner could have in this case, gone straight to court.

And we contend that the New York Gaslight Club against Carey case, as most recently applied in Smith versus Robinson, supports the Respondents’ argument that Congress did not intend fees to be awarded under Section 1988 for optional state administrative proceedings.

Further, as to the legislative history, this Court observed in Hensley versus Ekerhart, the very case upon which the Petitioner relies, that the very purpose of Section 1988 is to ensure effective access to the judicial process.

And we contend that this evidences this Court’s recognition that the civil rights that are set forth in Section 1988 are to be enforced primarily in court.

Patsy has held that Congress has not encouraged the use of state administrative remedies for the enforcement of these rights, and therefore this Court should deny fees for optional state administrative proceedings.

We would also emphasize that to leave lower courts with no better guidance than what is reasonable to do in situations such as these will further spawn litigation, because these courts will be making judgments concerning proceedings that do not occur before them, as to the amount of hours, the monetary service… the monetary value of the services, and the impact of those proceedings on federal court litigation.

And the courts may have very familiarity with these procedures and the procedures do not occur under the auspices or the control of the courts, and in our view we think that this will spawn further litigation as to what is reasonable in these particular cases, and it will take up already crowded trial and appellate docket time to litigate questions that are only peripherally related to the vindication of the underlying civil rights act.

Sandra Day O’Connor:

On the other hand, as Justice Blackmun points out, the costs of not at least permitting the courts to consider the preparation time is to provide a disincentive to follow alternative remedies and stay out of court altogether.

S. Russell Headrick:

Now, of course, there’s no… and there may be some of that disincentive.

But there’s no clear indication, at least from the Court’s opinion in Patsy, that administrative remedies provide the swiftest or most accurate way to resolve these disputes.

And as I’ve also pointed out, the relief that’s granted at the administrative level may not be coextensive with the rights that are sought to be protected by the Petitioner, as in this case.

So that even had Petitioner prevailed in this case, he still might have wound up in federal court on his damage to reputation claims and damage claims, as well as injunctive class relief.

So we think that that proposition cuts both ways in this case in particular.

And in view of the increased litigation over this question of reasonableness, we think the balance should be struck the other way.

And on balance, we would assert in the Respondents’ view that denial of fees for optional state administrative proceedings in this case would indeed provide lower courts and counsel with a clear line of demarcation and a bright line of demarcation to determine what services are compensable under Section 1988 and what services, if the Petitioner chooses to pursue those remedies, for which he must bear his own counsel fees.

If there are no further questions, I’d like to thank the Court for its attention.

That concludes my remarks.

Warren E. Burger:

Mr. Headrick.

Do you have anything further?

Charles Stephen Ralston:

May it please the Court:

I have a very few responses.

With regard to what went on in the administrative process and what was sought in district court, it is true that broader relief was initially sought in district court, but the case was actually settled based on exactly what the school board could have granted.

That is, the back pay plus in this case, since Mr. Webb had gotten another job, not reinstatement but the wiping out, expungement of his record and allowing to change a dismissal to a resignation.

Indeed, if one looks at the transcript of the hearings before the school board, it reads remarkably like a proceeding to vindicate a racial discrimination claim, a claim of racial discrimination in employment in an individual discrimination claim brought under Section 1981.

For that reason, the work that was done clearly was relevant to the federal claims, and clearly we believe aided in the ultimate resolution of this case through settlement.

With regard to whether our rule that we request would open up further litigation over what is reasonable, again, the district courts on a daily basis, dealing with counsel fee applications, deal with whether some particular time spent was reasonable, with regard to whether it was necessary to spend so much time taking depositions, which are not done before the court, whether discovery was reasonable, whether other activities.

If the defendant objects to time as being too much, being unreasonable, then the district courts have found themselves perfectly capable of dealing with that.

And frankly, I don’t see anything inherently more difficult in dealing with looking at an administrative proceeding such as was gone through here and deciding whether or not what was done was reasonable in terms of attempting to enforce federal civil rights.

John Paul Stevens:

Mr. Ralston, let me ask you a question on that point.

Supposing there is one day of work in the state proceeding that clearly did not facilitate anything in the federal proceeding.

Just, you had to go in and get a continuance or some stipulation about state procedure, but you spent six or seven hours doing it.

But you would not have had to do that in order to bring out your federal case.

Are you entitled to pay for that time?

Charles Stephen Ralston:

Your Honor, in that particular instance the district court could very well look at that and say, that was not time reasonably spent in vindication of federal civil rights, that’s not compensable here.

John Paul Stevens:

So you’re not claiming that you’re entitled to be compensated for all the time spent in the administrative proceeding, all time necessary to that proceeding?

Charles Stephen Ralston:

Not necessarily.

I mean, it depends on the circumstances, just as if the case had gone straight into federal court the district court might decide that someone spent 20 hours researching a memo and they could have done it in two hours or it wasn’t necessary really to do it at all.

John Paul Stevens:

It’s hard to get the flavor of it, but as I read the district court opinion I thought he was treating the claim as though the lawyer who was then representing the plaintiff thought he was entitled as a matter of law to be compensated for the time in that proceeding more or less as he is in the federal proceeding.

Charles Stephen Ralston:

Well, the counsel for plaintiff was arguing that all the time was reasonably spent and therefore he should be compensated for it fully.

Now, if the district court had reached that issue he may have well disagreed and said: Well, no, I’m only going to give you for 50 hours or 60 hours.

John Paul Stevens:

But see, I got the impression the parties didn’t fight about the allocation, that there was kind of an agreement that 58 hours was on the federal case and 82 hours was on the state proceeding, and you either got the 82 hours or you didn’t.

And I think you’re making a little different argument now.

Charles Stephen Ralston:

Well, the defendants objected to any of the time as a matter of law, and that’s the issue that we’re focusing on.

John Paul Stevens:

And you in effect argue you’re entitled to all of it.

Charles Stephen Ralston:

We said, yes, we’re entitled to all of it unless you can convince the court that some of it–

John Paul Stevens:

That’s what I don’t find, is the “unless you can convince” part.

Charles Stephen Ralston:

–Well, I guess that issue was never reached, Your Honor, because it all got focused in on whether any of it could be compensated at all and that’s the way it was decided.

Now, the defendants did also object to certain… they said 14 hours going to and from a hearing was too much.

I imagine plaintiff’s counsel are wont to say that was necessary.

You know, plaintiffs’ counsel don’t like to lose hours that they’re going to get paid for.

But the court, district court, never grappled with that issue at all.

It just ruled as a matter of law.

Byron R. White:

Mr. Ralston, suppose there’s a case where everything you do to enforce your state rights, state statutory or state constitutional rights, are absolutely the same as what you would be doing to enforce the federal right, and in the state proceeding you just… you have a federal constitutional claim, but you also have these state claims, and you just go forward.

Charles Stephen Ralston:

Your Honor, in that case it would be the same issue that was grappled with, I think, in Hensley.

If the claims are so intertwined as to be not divisible and if the party prevails, then they’d be entitled to be compensated for that time, assuming that it was a substantial federal claim.

Byron R. White:

Even though if he hadn’t joined his claim, his federal claim, he would have done exactly the same thing?

Charles Stephen Ralston:

Yes.

If he has presented a substantial federal claim and hasn’t just thrown it in there to try to get fees… and in this case these facts do not present that circumstance, because here was a substantial federal claim, particularly the claim of racial discrimination which was the heart of Mr. Webb’s claim all along… then he should be compensated for it under Hensley.

Thank you.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.

The Honorable Court is now adjourned until tomorrow at 10:00.