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09/17/82 Bess Kennedy, v. William H. Whitehurst

September 17, 1982





Appeal from the United States District Court for the District of Columbia.


Tamm, Circuit Judge, Robb, Senior Circuit Judge, and Howard T. Markey,* Chief Judge, United States Court of Customs & Patent Appeals. Opinion for the court filed by Circuit Judge Tamm.


This case presents the question whether, under the Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634 (1967 & Supp. IV 1980) (ADEA or the Act), federal employees who gain redress at the administrative level are entitled to recover attorneys' fees for legal services rendered at that stage. United States District Judge Oliver Gasch ruled that Congress had not provided the requisite statutory authorization for an award of fees in cases in which the process of administrative conciliation is successfully employed in the federal employee's favor, and he accordingly denied appellant Bess Kennedy's prayer for such an award against appellee William Whitehurst, the Acting Director of the District of Columbia Department of Human Services . Since the date of Judge Gasch's ruling, two other district judges have considered the same issue and have reached the identical result, though each judge employed a slightly different reasoning. Although we too shall travel a somewhat different course than did Judge Gasch in considering the question, we agree that federal employees who prosecute successfully claims of age discrimination under the ADEA at the administrative level are not entitled to an award of attorneys' fees. Accordingly, we affirm. I.

To the old adage that death and taxes share a certain inevitable character, federal judges may be excused for adding attorneys' fees cases. The years that have elapsed since the Supreme Court confirmed the prevalence of the so-called "American Rule" that requires each party to bear its own counsel fees absent a contrary statutory provision or common law exception, see Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247, 44 L. Ed. 2d 141, 95 S. Ct. 1612 (1975), have witnessed no abatement in the number of cases involving attempts to shift the incidence of the costs of lawyers. The judicial focus has, rather, shifted from consideration of the inherent equitable power of courts to award attorneys' fees to the construction of the plethora of federal statutes enacted to create exceptions to the American Rule. There are more than 120 federal statutes authorizing the award of counsel fees in specified situations, *fn1 many of which were enacted in response to the Alyeska decision. In recent years this court and many others have attempted to establish doctrines to govern the exercise of a trial judge's statutory discretion to award attorneys' fees *fn2 and have sought to give content to terms of art such as "prevailing party" *fn3 and "reasonable fee." *fn4

We may well expect this boom of litigation involving attorneys' fees to continue. In the civil rights area in particular, Congress has wholeheartedly embraced the "private attorney general" rationale and accordingly has encouraged private action to implement public policy through the subsidization of the work of plaintiffs' counsel by private and government defendants. The Supreme Court in Newman v. Piggie Park Enterprises, 390 U.S. 400, 19 L. Ed. 2d 1263, 88 S. Ct. 964 (1968), made clear that the congressional policy favoring private enforcement of civil rights legislation mandated a liberal construction of attorneys' fees provisions in the area of personal rights. 390 U.S. at 401-02. Because the right to seek and maintain employment in an environment free from age discrimination has now been declared such a civil right, we view as fundamental this mandate of a broad reading of the remedial provisions at issue in the instant case. See Rodriguez v. Taylor, 569 F.2d 1231, 1244 (3d Cir. 1977) ("unqualified legislative and judicial authority for an award of fees to all successful plaintiffs" in ADEA cases).

Nevertheless, courts considering prayers for attorneys' fees must bear in mind the Alyeska Court's admonition that specific statutory authorization for an award of fees is required before the incidence of counsel costs can be shifted. Rodriguez, 569 F.2d at 1245. This admonition is buttressed by the doctrine of sovereign immunity where attorneys' fees are sought against the federal government; we have held that a waiver of that immunity with regard to an award of attorneys' fees must either be express or manifest from the relevant legislative history. See Fitzgerald v. United States Civil Service Comm'n, 180 U.S. App. D.C. 327, 554 F.2d 1186, 1189 & n.8 (D.C. Cir. 1977); see also United States v. King, 395 U.S. 1, 3-5, 23 L. Ed. 2d 52, 89 S. Ct. 1501 (1969); NAACP v. Civiletti, 197 U.S. App. D.C. 259, 609 F.2d 514, 516 (D.C. Cir. 1979), cert. denied, 447 U.S. 922, 100 S. Ct. 3012, 65 L. Ed. 2d 1114 (1980). Thus, federal courts lack the power to award attorneys' fees to a prevailing party against the government where the only justification is that public policy favors an award. As we noted in Fitzgerald, even if a denial of fees might "'make a mockery and a sham of the mandate of Congress,'" no award can be made absent express statutory authorization. 554 F.2d at 1190 (quoting Fitzgerald v. United States Civil Service Comm'n, 407 F. Supp. 380, 386 (D.D.C. 1975)). Arguments centering on the inequities caused by the absence of fee-shifting are properly addressed to the Congress and not to the courts.

It is against this backdrop that we consider appellant's request for attorneys' fees.

A. The Facts

Neither party questions the factual findings of the district judge. Appellant Bess Kennedy has since 1970 been an employee of the District of Columbia DHS and of its predecessor agency, the Department of Human Resources. In 1978 appellant, then a sixty-two-year-old white female employed as a GS-9 Social Service Representative, applied for a promotion to fill one of twelve vacant positions as a GS-11 Supervisory Social Service Representative. She also applied for a promotion to a position as a GS-11 Employee Development Specialist. Appellant was denied both promotions, the first in November 1978 and the second in March 1979.

In August 1979 Mrs. Kennedy filed a complaint with the District of Columbia's Office of Human Rights in which she alleged that the promotion denials were the result of discrimination on the bases of race, gender, and age. *fn5 In September 1979 appellant filed a complaint alleging only age discrimination with the United States Equal Employment Opportunity Commission . *fn6 Mrs. Kennedy was assisted by counsel in the preparation of both complaints and in the administrative proceedings that followed.

The administrative efforts at resolution of the dispute proved successful, with no judicial proceedings of any kind required to secure the relief accorded appellant. The parties and the EEOC negotiated a settlement agreement that, as appellant notes, appears to have resolved the age discrimination claim in her favor and that provided for her retroactive promotion to the GS-11 level with an award of back pay. *fn7 The settlement agreement did not, however, provide for an award of attorneys' fees.

After this success at the administrative level, appellant filed a request with the DHS for the cost of the legal services provided on her behalf before the EEOC. The DHS denied the request, contending that it lacked the statutory authority to award fees. *fn8 Mrs. Kennedy then filed in the district court the complaint that instituted the instant litigation, contending that, as a prevailing party *fn9 under the ADEA, she was entitled to an award of attorneys' fees for the costs of counsel she incurred at the administrative level. Appellant Kennedy thereupon moved for summary judgment, arguing that the language of the ADEA authorized an award of fees to a federal employee who prevails exclusively through administrative proceedings.

Assuming both that a competitive service employee of the DHS is a federal employee for the purposes of the ADEA and that federal employees have the same rights to attorneys' fees under the Act as do private sector workers, the district court nonetheless held that the ADEA did not authorize an award of fees for legal services rendered at the administrative level. Kennedy v. Whitehurst, 509 F. Supp. 226, 231-32 (D.D.C. 1981). The district judge concluded that, although an award of such fees might be a sound policy result, Congress had failed, perhaps inadvertently, to empower courts to award counsel fees for legal work done before administrative agencies. Id. at 231 & n.11. As no material facts were in dispute and as the dispositive legal question had been fully briefed, the court sua sponte entered summary judgment in favor of the government agency. Id. at 231-32. This appeal followed.

B. The Statutory Background

The relevant provisions of the ADEA are, regrettably, a model in imprecision. The ADEA was passed in 1967 to protect older members of the nation's workforce from discrimination premised on age differences. Lorillard v. Pons, 434 U.S. 575, 577, 55 L. Ed. 2d 40, 98 S. Ct. 866 (1978). As originally enacted, the ADEA applied only to employees in the private sector and adopted as its private enforcement mechanism the compliance scheme that obtained under the Fair Labor Standards Act, 29 U.S.C. §§ 201-219 (1976 & Supp. IV 1980) . The relevant ADEA language appears in section 7(b) of the Act and provides:

The provisions of this chapter shall be enforced in accordance with the powers, remedies, and procedures provided in sections 211(b), 216 (except for subsection (a) thereof), and 217 of this title . . . .

ADEA § 7(b), 29 U.S.C. § 626(b) (1976). The critical cross-reference for present purposes is to section 16 of the FLSA, 29 U.S.C. § 216 (1976 & Supp. IV 1980). In pertinent part, that section provides:

An action to recover the liability prescribed in either of the preceding sentences may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction . . . . The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action.

29 U.S.C. § 216(b) (1976 & Supp. IV 1980). This incorporation by reference makes it clear that, at a minimum, a private sector employee who secures a judgment in litigation under the ADEA is additionally entitled to an award of attorneys' fees against the defendant.

In 1974 Congress amended the ADEA to bring federal employees under the Act's protective umbrella. As amended, section 15 of the ADEA, 29 U.S.C. § 633a (1976 & Supp. IV 1980), "prohibits age discrimination in federal employment." *fn10 Lehman v. Nakshian, 453 U.S. 156, 162, 69 L. Ed. 2d 548, 101 S. Ct. 2698 (1981). Section 15(c) of the ADEA, 29 U.S.C. § 633a(c) (1976), ...

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