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D'ANGELO v. DEPARTMENT OF THE NAVY

September 27, 1984

John J. D'ANGELO
v.
DEPARTMENT OF THE NAVY



The opinion of the court was delivered by: POLLAK

 On October 12, 1976, John Duda, an electrical engineer at the Northern Division, Naval Facilities Engineering Command, filed a complaint with the Department of the Navy alleging that he had been denied a promotion because of his age. The complaint was filed under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 633a. The Department of the Navy investigated the charges and on March 16, 1977, issued a finding that no discrimination had occurred.

 Mr. Duda and his attorney, John J. D'Angelo, Esq., then requested consideration of the matter by the Secretary of the Navy. On March 23, 1978, a complaint examiner, following a hearing, recommended a finding of no discrimination. On June 1, 1978, the Secretary of the Navy approved the complaint examiner's recommendation.

 Mr. Duda's counsel appealed the decision of the Secretary whereupon the matter was transferred to the Equal Employment Opportunity Commission (EEOC). On February 23, 1981, the EEOC reversed the Secretary's decision and remanded the matter to the Department of the Navy. On March 26, 1981, the Department of the Navy requested reconsideration of the EEOC's decision. This request was rejected by the EEOC on May 4, 1981 and the Department of the Navy was directed to implement the original EEOC decision. No further proceedings have taken place regarding Mr. Duda's substantive claim.

 Mr. D'Angelo has now filed an action in this court seeking attorney's fees for his representation of Mr. Duda through the administrative process. The petition seeks fees under either the ADEA or the Equal Access to Justice Act (EAJA), 5 U.S.C. § 504.

 The government filed a motion to dismiss this petition or, in the alternative, for summary judgment with regard to petitioner's fee request. Mr. D'Angelo has responded to that motion.

 A. Age Discrimination in Employment Act

 The motion to dismiss argues that the ADEA does not authorize a fee award for efforts of counsel at the administrative level. Petitioner contests this reading of the statute and argues that an award of attorney's fees in this situation would vindicate the strong federal policy favoring nonjudicial resolution of such employment disputes.

 A number of courts have addressed the issue of the availability of attorney's fees for administrative proceedings under the ADEA and have reached different conclusions. E.g., Kennedy v. Whitehurst, 223 U.S. App. D.C. 228, 690 F.2d 951 (D.C. Cir. 1982) (fees denied); Koyen v. Consolidated Edison Company of New York, Inc., 560 F. Supp. 1161 (S.D.N.Y. 1983) (fees denied); Bleakley v. Jekyll Island - State Park Authority, 536 F. Supp. 236 (S.D. Ga. 1982) (fees granted); Swain v. Secretary of the Navy, 27 Fair Empl. Prac. Cas. (BNA) 1434 (D.D.C. 1982), aff'd 701 F.2d 222, cert. denied, 464 U.S. 814, 104 S. Ct. 68, 78 L. Ed. 2d 83 (1983) (fees denied). However, the courts which have addressed the narrower issue of whether a federal employee may recover fees for administrative efforts by counsel have uniformly held that such an award is not statutorily authorized. E.g., Kennedy v. Whitehurst, 223 U.S. App. D.C. 228, 690 F.2d 951 (D.C. Cir. 1982); Swain v. Secretary of the Navy, 27 Fair Empl. Prac. Cas. (BNA) 1434 (D.D.C. 1982), aff'd 701 F.2d 222, cert. denied, 464 U.S. 814, 104 S. Ct. 68, 78 L. Ed. 2d 83 (1983). Judge Tamm's detailed analysis of the unique statutory scheme for federal employee claims under the ADEA thoroughly canvasses the reasons which support this conclusion. Kennedy v. Whitehurst, 223 U.S. App. D.C. 228, 690 F.2d 951 (D.C. Cir. 1982).

 Judge Tamm determined in Kennedy that the language of the ADEA which specifically authorizes a court to award attorney's fees and costs to a "plaintiff" in an "action" before it "in addition to any judgment awarded," 29 U.S.C. § 216 and 29 U.S.C. § 626(b), was not incorporated in the portions of the ADEA which govern federal employee claims. 29 U.S.C. § 633a. See Lehman v. Nakshian, 453 U.S. 156, 163-64, 69 L. Ed. 2d 548, 101 S. Ct. 2698 (1981). Therefore, it was necessary to determine whether the more general language of § 633a(c) authorized the requested fee award. That provision states:

 
any person aggrieved may bring a civil action in any Federal district court of competent jurisdiction for such legal or equitable relief as will effectuate the purposes of this chapter.

 29 U.S.C. § 633a(c). The lack of specific language in this section authorizing fee awards, the nonmandatory nature of the administrative process for federal employees, and the fact that the portion of the ADEA which directly authorizes fee awards for private claimants does not appear to allow fee awards for relief obtained outside of court all led Judge Tamm to the conclusion that attorney's fees could not be awarded to a federal employee who prevailed at the administrative level.

 I conclude that both the reasoning and the result of Kennedy are correct and should apply to the present fee petition. *fn1" The language, structure and legislative history of the ADEA do not allow for attorney's fee awards under the facts of the present case. Although petitioner's argument that a fee award for successful administrative efforts will encourage use of administrative channels by ADEA claimants and reduce the burden on the courts may have merit as a matter of public policy, that argument is more ...


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