In The

Supreme Court of the United States



et al.

Decided November 4, 1986

Justice O’Connor, For the Court

Topic: Attorneys*Court vote: 6–3
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Joining O'Connor opinion: Justice POWELL Justice POWELL Chief Justice REHNQUIST Chief Justice REHNQUIST Justice SCALIA Justice SCALIA Justice STEVENS Justice STEVENS Justice WHITE Justice WHITE
Citation: 479 U.S. 6 Docket: 85–767Audio: Listen to this case's oral arguments at Oyez

* As categorized by the Washington University Law Supreme Court Database

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JUSTICE O'CONNOR delivered the opinion of the Court.

This case presents the question whether a court may award attorney's fees under the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. §1988, in a separate federal action not to enforce any of the civil rights laws listed in §1988, but solely to recover attorney's fees.


In 1957, the Durham City Council advised the North Carolina State Highway Commission of the need for a major east-west expressway in the city. North Carolina Department of Transportation and Federal Highway Administration, Final Environmental Impact Statement No. FHWA-NC-EIS-72 13-F, Historical Resume 15 (1982). Over the years, parts of this highway were completed. In 1976, petitioner North Carolina Department of Transportation (NCDOT) resumed planning an extension of the east-west highway. The proposed extension was to run through the Crest Street community, an established, predominantly black neighborhood in Durham. The extension would have displaced the community park and church and many of the residents of the neighborhood. Respondents, Residents of Crest Street Community and the Save Our Church and Community Committee, two unincorporated associations, retained the North Central Legal Assistance Program to represent them in regard to the proposed highway extension. Despite respondents' opposition to the extension plans, petitioners issued a revised draft Environmental Impact Statement that continued to propose that the extension run through the Crest Street community. App. 57.

The costs of the proposed extension were to be covered in large part by federal funds. Title VI of the Civil Rights Act of 1964 prohibits "any program or activity receiving Federal financial assistance" from discriminating on the basis of race, color, or national origin, 42 U.S.C. § 2000d, and directs each federal agency authorized to extend federal financial assistance to issue regulations to effectuate this mandate, § 2000d-1. Compliance with § 2000d may be effected by the termination of federal funds, or by any other means authorized by law; however,

no such action shall be taken until the department or agency concerned has advised the [recipient] of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means.

§ 2000d-1.

Pursuant to Title VI, the Department of Transportation (DOT) promulgated regulations requiring recipients of federal funds to provide assurances of compliance, periodic compliance reports, and access to information relevant to compliance. 49 CFR § 21.9 (1985). DOT regulations also state that

[a]ny person who believes himself or any specific class of persons to be subjected to discrimination prohibited by [Title VI and the DOT regulations] may... file with the Secretary a written complaint.

§ 21.11 (b). The Secretary is required to investigate "whenever a compliance review, report, complaint, or any other information indicates a possible failure to comply with this part." § 21.11 (c).

In September, 1978, respondents filed a complaint with DOT. App. 73-89. Respondents challenged petitioners' proposed extension as violative of Title VI, and requested that NCDOT be prohibited from planning or constructing the proposed highway through the Crest Street community. DOT conducted an investigation, met with representatives of petitioners and of respondents, and obtained documents from petitioners and respondents. In February, 1980, the DOT Director of Civil Rights informed NCDOT that, based on DOT's "preliminary judgments," there was

reasonable cause to believe that the construction of the Expressway along the alignment proposed in the Draft [Environmental Impact Statement] would constitute a prima facie violation of Title VI and, in particular, Section 21.5(b)(3) of our Departmental Title VI regulation.

Id. at 97-99. DOT urged petitioners to attempt to negotiate a resolution to the controversy. After negotiations spanning 15 months, in February, 1982, petitioners, respondents, and the city of Durham reached a preliminary agreement on the highway design and mitigation of the adverse impact of the project, but continued to negotiate toward a final plan.

Since 1973, construction of the highway extension had been enjoined by an order entered in the unrelated proceedings in ECOS, Inc. v. Brinegar, No. C-352-D-72 (MDNC, Feb. 20, 1973). The plaintiffs in ECOS were a nonprofit educational ecological organization, an association of Duke University students and some of its members, and two Durham residents. The action alleged violations of the Federal-Aid Highway Act, 23 U.S.C. §§ 128, 138, the Department of Transportation Act of 1966, 49 U.S.C. App. § 1653(f), and the National Environmental Policy Act of 1969, 42 U.S.C. § 4332. The order enjoined construction until the defendants, state and federal transportation officials and a construction company, achieved full compliance with the above statutes. In August, 1982, NCDOT moved to dissolve the ECOS injunction. Respondent Crest Street Community Council, Inc., and an individual Crest Street resident moved to intervene in the ECOS action and filed a proposed complaint asserting Title VI violations. App. 103-107. While the motion to intervene was pending, petitioners and respondents continued negotiations, and reached agreement on a Final Mitigation Plan. On December 14, 1982, the District Court entered a consent judgment in the ECOS action. The consent judgment dissolved the injunction and dismissed the action. It also dismissed with prejudice respondents' Title VI claims on the condition that petitioners implement the Final Mitigation Plan, although the District Court had never ruled on the Crest Street Community Council, Inc., motion to intervene. The following day, the Final Mitigation Plan was formally executed by petitioners, respondents, and the city of Durham.

The Plan set out comprehensive requirements for NCDOT and the city of Durham to mitigate the impact of the highway. Under the Plan, NCDOT agreed to move the proposed highway right-of-way and modify an interchange so as to preserve the community church and park. The Plan also required NCDOT and the city of Durham to develop and provide a new park and community site in the same area. Respondents' counsel had spent more than 1,200 hours over the course of five years on this project, preparing the administrative complaint, assisting the DOT investigation, actively participating in negotiations to resolve the dispute, and informing DOT on the progress of those negotiations. The result of this diligent labor was both substantial and concrete.

Under the Plan, respondents stated that they did not waive any right to attorney's fees, and the city of Durham and NCDOT denied liability for attorney's fees. Respondents filed an action in District Court for attorney's fees under 42 U.S.C. § 1988. On cross-motions for summary judgment, the District Court granted petitioners' motion and dismissed the action. 598 F. Supp. 258 (MDNC 1984). On appeal, the Court of Appeals reversed and remanded. 769 F.2d 1025 (CA4 1985). The Court of Appeals concluded that the explicit language of § 1988 allowing recovery of attorney's fees by a "prevailing party" in a "proceeding to enforce... [T]itle VI of the Civil Rights Act of 1964" covered the actions taken by respondents subsequent to the filing of the administrative complaint. Id. at 1028. The Court of Appeals then considered whether respondents could bring an independent action "solely to recover fees for an administrative complaint that has already been settled." Id. at 1033. The Court of Appeals held that § 1988 allowed a separate action for fees, although it acknowledged the contrary holdings of other courts. See Horacek v. Thone, 710 F.2d 496, 499 (CA8 1983); Estes v. Tuscaloosa County, 696 F.2d 898, 901 (CA11 1983); Latino Project, Inc. v. City of Camden, 701 F.2d 262 (CA3 1983). We granted certiorari, to resolve the Circuit conflict, 474 U.S. 1049 (1986), and now reverse.


In cases in which civil rights litigation was preceded by administrative proceedings, this Court has had occasion to consider whether the court in the civil rights action could award attorney's fees for time spent in the particular administrative processes. Webb v. Dyer County Board of Education, 471 U. S. 234, 471 U. S. 241 (1985) (state tenure rights hearing is not a proceeding to enforce 42 U.S.C. § 1983); New York Gaslight Club, Inc. v. Carey, 447 U. S. 54 (1980) (mandatory state employment discrimination proceedings are proceedings to enforce Title VII). This case presents a question similar to those raised in Webb and Carey: whether negotiations subsequent to the filing of a Title VI administrative complaint are, under § 1988, "proceedings to enforce" Title VI. This case also presents a question that had not been posed by our prior § 1988 cases: whether attorney's fees under § 1988 can be sought in a court action other than litigation in which a party seeks to enforce the civil rights laws listed in § 1988. Because our resolution of the latter question resolves this case, we do not reach the former.

In pertinent part, the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, provides:

In any action or proceeding to enforce a provision of... [T]itle VI of the Civil Rights Act of 1964..., the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.

The plain language of § 1988 suggests the answer to the question whether attorney's fees may be awarded in an independent action which is not to enforce any of the civil rights laws listed in § 1988. The section states that in the action or proceeding to enforce the civil rights laws listed -42 U.S.C. §§ 1981, 1982, 1983, 1985, 1986, Title IX, or Title VI -the court may award attorney's fees. The case before us is not, and was never, an action to enforce any of these laws. On its face, § 1988 does not authorize a court to award attorney's fees except in an action to enforce the listed civil rights laws.

The legislative history of § 1988 supports the plain import of the statutory language. As we have noted before, the legislative history is replete with references to "the enforcement of the civil rights statutes in suits,' `through the courts' and by `judicial process.'" Webb v. Dyer County Board of Education, supra, at 471 U. S. 241, n. 16 (quoting S.Rep. No. 94-1011, pp. 2, 6 (1976); H.R.Rep. No. 94-1558, p. 1 (1976)). Moreover, to support its statement that "parties may be considered to have prevailed when they vindicate rights through a consent judgment or without formally obtaining relief," the Senate Report cited cases that involved at a minimum the filing of a judicial complaint. S.Rep. No. 94-1011, at 5 (citing Kopet v. Esquire Realty Co., 523 F.2d 1005 (CA2 1975); Parham v. Southwestern Bell Telephone Co., 433 F.2d 421 (CA8 1970); Thomas v. Honeybrook Mines, Inc., 428 F.2d 981 (CA3 1970); Richards v. Griffith Rubber Mills, 300 F.Supp. 338 (Ore. 1969); Aspira of New York, Inc. v. Board of Education of New York City, 65 F.R.D. 541 (SDNY 1975)). The House Report, even while it stressed that "`prevailing party' is not intended to be limited to the victor only after entry of a final judgment following a full trial on the merits," clearly contemplated that parties obtaining fees would have initiated civil rights litigation:

If the litigation terminates by consent decree, for example, it would be proper to award counsel fees. A 'prevailing' party should not be penalized for seeking an out-of-court settlement, thus helping to lessen docket congestion. Similarly, after a complaint is filed, a defendant might voluntarily cease the unlawful practice.

H.R.Rep. No. 94-1558, at 7 (citations omitted; emphasis supplied). As in the Senate Report, each of the cases cited by the House Report to support the above statements involved, at a minimum, the filing of a judicial complaint. See Evers v. Dwyer, 358 U. S. 202 (1958); Incarcerated Men of Allen County Jail v. Fair, 507 F.2d 281 (CA6 1974); Brown v. Gaston County Dyeing Machine Co., 457 F.2d 1377 (CA4 1972); Lea v. Cone Mills Corp., 438 F.2d 86 (CA4 1971); Parham, supra; Parker v. Matthews, 411 F.Supp. 1059 (DC 1976); Aspira, supra.

We recognize that dicta in opinions of this Court suggest that the authorization of attorney's fee awards only by a court in an action to enforce the listed civil rights laws would be anomalous. See Carey, 447 U.S. at 447 U. S. 65 -66. But see id. at 447 U. S. 71 (STEVENS, J., concurring in judgment) ("Whether Congress intended to authorize a separate federal action solely to recover costs, including attorney's fees,... is not only doubtful but is a question that is plainly not presented by this record"). See also White v. New Hampshire Dept. of Employment Security, 455 U. S. 445, 455 U. S. 451, n. 13 (1982). But if one must ignore the plain language of a statute to avoid a possibly anomalous result, " [t]he short answer is that Congress did not write the statute that way.'" Garcia v. United States, 469 U. S. 70, 469 U. S. 79 (1984), quoting Russello v. United States, 464 U. S. 16, 464 U. S. 23 (1983) (in turn quoting United States v. Naftalin, 441 U. S. 768, 441 U. S. 773 (1979)). The legislative history clearly envisions that attorney's fees would be awarded for proceedings only when those proceedings are part of or followed by a lawsuit.

Moreover, we now believe that the paradoxical nature of this result may have been exaggerated. There are many types of behavior that may lead others to comply with civil rights laws. For example, an employee, after talking to his lawyer, may choose to discuss hiring or promotion practices with an employer, and as a result of this discussion the employer may alter those practices to comply more fully with employment discrimination laws. In some sense, it may be considered anomalous that this employee's initiative would not be awarded with attorney's fees. But an award of attorney's fees under § 1988 depends not only on the results obtained, but also on what actions were needed to achieve those results. It is entirely reasonable to limit the award of attorney's fees to those parties who, in order to obtain relief, found it necessary to file a complaint in court.

We have also suggested in past cases that today's holding would create an incentive to file protective lawsuits in order to obtain attorney's fees. See Carey, supra, at 447 U. S. 66, n. 6. Upon reflection, however, we think that the better view was expressed by our conclusion in Webb, 471 U.S. at 471 U. S. 241, n. 15, that

competent counsel will be motivated by the interests of the client to pursue... administrative remedies when they are available and counsel believes that they may prove successful.

An interpretation of § 1988 cannot be based on the assumption that

an attorney would advise the client to forgo an available avenue of relief solely because § 1988 does not provide for attorney's fees....

Ibid. Moreover, our holding creates a legitimate incentive for potential civil rights defendants to resolve disputes expeditiously, rather than risk the attorney's fees liability connected to civil rights litigation.

A court hearing one of the civil rights claims covered by § 1988 may still award attorney's fees for time spent on administrative proceedings to enforce the civil rights claim prior to the litigation. See Carey, supra (so holding under identical language of Title VII). Moreover, even if the prior proceeding is not a "proceeding to enforce" one of the § 1988 civil rights laws, the "discrete portion of the work product from the administrative proceedings" that "was both useful and of a type ordinarily necessary to advance the civil rights litigation to the stage it reached before settlement" can be part of the attorney's fees awarded under § 1988. Webb, supra, at 471 U. S. 243 ; see also Hensley v. Eckerhart, 461 U. S. 424 (1983). Under the plain language and legislative history of § 1988, however, only a court in an action to enforce one of the civil rights laws listed in § 1988 may award attorney's fees.


The Court of Appeals, in an alternative response to the argument that § 1988 does not authorize fee awards in actions other than those to enforce the listed civil rights laws, stated that

[e]ven if some type of court action were required to trigger § 1988's fee provision, [respondents] would still have a claim to fees by virtue of their proposed complaint and motion to intervene in the ECOS action.

769 F.2d at 1034. This argument misconstrues the flaw in respondents' claim for fees. Whatever respondents' role in the ECOS action, and whether or not the ECOS action was to enforce Title VI, respondents did not seek attorney's fees in that action. Respondents instead agreed that their Title VI claims in their proposed complaint would be dismissed, and brought a completely independent action for attorney's fees. The court that considered the attorney's fees claim was not in an action to enforce Title VI. Whether the court in the ECOS action could have awarded attorney's fees to respondents, while doubtful, * is irrelevant. The court that did consider the claim was not authorized under § 1988 to award attorney's fees.

The judgment of the Court of Appeals is reversed.

It is so ordered.

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