CREST STREET C. COUN. v. NC DEPT. OF TRANS.

• Decision Date: 29 November 1984
• Docket Number: No. C-83-1239-D.,C-83-1239-D.
• Citation: 598 F. Supp. 258
• Court: U.S. District Court — Middle District of North Carolina
• Parties: CREST STREET COMMUNITY COUNCIL, INC., Residents of Crest Street Community, and Save Our Church and Community Committee, Plaintiffs, v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, North Carolina Board of Transportation and William R. Roberson, as Secretary of the North Carolina Department of Transportation and Chairman of the North Carolina Board of Transportation, Defendants.

598 F. Supp. 258

CREST STREET COMMUNITY COUNCIL, INC., Residents of Crest Street Community, and Save Our Church and Community Committee, Plaintiffs, v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, North Carolina Board of Transportation and William R. Roberson, as Secretary of the North Carolina Department of Transportation and Chairman of the North Carolina Board of Transportation, Defendants.

No. C-83-1239-D.

United States District Court, M.D. North Carolina, Durham Division.

November 29, 1984.

Michael D. Calhoun and Alice A. Ratliff, N.C. Legal Assistance Program, Durham, N.C., for plaintiffs.

Rufus L. Edmisten, Atty. Gen., N.C., and James B. Richmond, Asst. Atty. Gen., N.C. Dept. of Justice, Raleigh, N.C., for defendants.

MEMORANDUM OPINION AND ORDER

HIRAM H. WARD, Chief Judge.

This is an action to recover attorney's fees incurred in previous administrative and judicial proceedings either between or involving the parties to this action. Before the Court are defendants' Motion to Dismiss (August 8, 1984) for failure to state a claim and for judgment on the pleadings, Fed.R.Civ.P. 12(b) & (c), and plaintiffs' Motion for Summary Judgment (August 8, 1984) pursuant to Rule 56, Fed.R.Civ.P. Inasmuch as matters outside the pleadings were presented and not excluded, the Court will treat and dispose of defendants' Rule 12 motion as one for summary judgment pursuant to Rule 12(b)(6) & (c), Fed.R. Civ.P. The parties submitted extensive briefs and documentary evidence and were heard in oral argument on November 1, 1984.

FACTS

The plaintiffs are organizations representing residents of Crest Street community, a cohesive, predominately black, low-income neighborhood in Durham, North Carolina. For quite some time the City of Durham had requested, and defendant North Carolina Department of Transportation (NCDOT) had planned, extension of a highway known as the East-West Freeway through, and with a major interchange in, the midst of the Crest Street community. As proposed by NCDOT in 1976, the highway extension would displace much of the community.

In March 1977, the North Carolina Legal Assistance Program was retained to represent residents of the Crest Street community concerning efforts against the East-West Freeway. In September 1978, plaintiffs Residents of Crest Street Community and Save Our Church and Community Committee, through counsel, filed an Administrative Complaint with the United States Department of Transportation (USDOT) seeking an investigation of the practices of NCDOT and the Federal Highway Administration for compliance with Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., and 49 C.F.R. § 21.¹ Title VI provides:

No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

Part 21 of the Code of Federal Regulations was promulgated to effectuate the provisions of Title VI in any program or activity receiving federal money from the USDOT. 49 C.F.R. § 21.1. The Administrative Complaint sought prohibition of further planning or construction of the freeway by NCDOT and rejection by USDOT of the NCDOT Environmental Impact Statement until the freeway project was brought into compliance with applicable laws. Affidavit of Willie Patterson, Exhibit A (August 8, 1984).

USDOT conducted a field investigation into the freeway proposals and the allegations of the Administrative Complaint. On February 20, 1980, the USDOT Director of the Office of Civil Rights informed NCDOT of its preliminary judgment finding reasonable cause to believe that construction according to the NCDOT proposal would constitute a prima facie violation of Title VI, in particular, section 21.5(b)(3), 49 C.F.R., which provides:

In determining the site or location of facilities, a recipient or applicant may not make selections with the purpose or effect of excluding persons from, denying them the benefits of, or subjecting them to discrimination under any program to which this regulation applies, on the grounds of race, color, or national origin; or with the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the Act of this part.

Patterson Affidavit, Exhibit B. This belief led the complainants, NCDOT, and the City of Durham into extensive negotiations towards conciliation of their differences.

In February 1982, plaintiff Crest Street Community Council, Inc. (Council), the City of Durham, and NCDOT reached a preliminary agreement for the freeway design, relocation assistance benefits, and other assistance in mitigation of the construction. Negotiations for a final mitigation plan toward ultimate resolution of all issues raised by the Administrative Complaint continued.

In August 1982, NCDOT moved to dissolve a 1973 injunction in ECOS, Inc. v. Brinegar, C-352-D-72 (M.D.N.C. February 20, 1973), which had enjoined construction of the freeway.² The Council and Willie Patterson, a resident of the Crest Street community, moved to intervene in ECOS on October 15, 1982. Patterson Affidavit, Exhibit C. The intervention motion was never ruled on, but the applicants for intervention were parties to a December 14, 1982 Consent Judgment dissolving the injunction and dismissing the ECOS action. The Consent Judgment provided, inter alia, that the state highway defendants and applicants for intervention had

resolved the things and matters in controversy between them by agreement adopted by the North Carolina Board of Transportation on November 19, 1982. The plaintiffs and applicants for intervention do not or no longer oppose the State defendants' motion to dissolve the injunction and do not wish to prosecute this action any further except that the applicants for intervention explicitly reserve the right to pursue all claims in their application for intervention in the event said agreement is not fully implemented, and in addition reserve their claim for attorney fees against the State defendants and the North Carolina Department of Transportation and the plaintiffs reserve their right to pursue all claims relating to the section of expressway proposed to be constructed between U.S. Highway 15-501 and Interstate 85.

Patterson Affidavit, Exhibit F, ¶ 8.

On December 15, 1982, the day following the filing of the Consent Judgment, the Council, NCDOT, and the City of Durham executed the Final Mitigation Plan (Plan). The Plan sets out in a comprehensive fashion efforts to be made by the City and NCDOT to mitigate the detrimental impact of the freeway on the Crest Street community. Plaintiffs contend that under the terms of the Plan, they were accorded very substantial relief.³ First, a new community site will be developed in the same area and will allow the residents to remain intact as a community. Second, the defendants moved the proposed highway right-of-way and modified an interchange so as to preserve the community church and park. Plaintiffs state that defendants estimated the cost of implementing their major direct responsibilities under the Plan to be $3,072,000. Brief in Support of Plaintiffs' Motion for Summary Judgment at 8 (August 8, 1984).

In August 1983, plaintiffs' counsel sent defendants a request for attorney's fees with a detailed listing of hours, expenses, hourly rates for various personnel, and notice of intent to seek an upward adjustment if court action became necessary. NCDOT denied liability for any fees, and plaintiffs filed this action on November 30, 1983.

DISCUSSION

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

In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of the Education Amendments of 1972 or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the cost.

In broad terms, the issue in this case is whether plaintiffs, are prevailing parties within the meaning or scope of section 1988. More specifically, the question before the Court is whether section 1988 authorizes an award of fees for the administrative enforcement of Title VI.

Defendants contend that the plaintiffs are not entitled to relief because (1) the eleventh amendment shields defendants from an award, (2) plaintiffs failed to exhaust administrative remedies, and (3) section 1988 does not support an independent cause of action. The eleventh amendment does not preclude an award under section 1988 which would be paid out of a state treasury. Congress has plenary power to set aside states' immunity from retroactive relief in order to enforce the fourteenth amendment. Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976). When Congress passed section 1988, "it undoubtedly intended to ... authorize fee awards payable by States." Hutto v. Finney, 437 U.S. 678, 693-94, 98 S.Ct. 2565, 2575, 57 L.Ed.2d 522, 536 (1978). Hutto rejects the argument that section 1988 is insufficient to overcome the eleventh amendment immunity. Maher v. Gagne, 448 U.S. 122, 131-32, 100 S.Ct. 2570, 2575-76, 65 L.Ed.2d 653, 662-63 (1980).

Defendants' suggestion that plaintiffs must administratively exhaust their claim for fees before proceeding in this Court is also without merit. First, Title VI does not require exhaustion. Chowdhury v. Reading Hospital and Medical Center, 677 F.2d 317 (3d Cir.1982), cert. denied, ___ U.S. ___, 103 S.Ct. 3569, 77 L.Ed.2d 1411 (1983). Second, the administrative procedures of part 21, 49 C.F.R., for hearings and judicial review are available to recipients of federal funds to challenge an adverse decision to cut off funding, not complainants like plaintiffs. And third, under section 1988 only a court, as opposed to an...